The opinion of the court was delivered by: Honorable Joseph E. Irenas
IRENAS, Senior District Judge
Plaintiffs commenced this action on December, 6, 2004, alleging that while visiting Hampton Inn, Defendant's property located in Absecon, New Jersey (the "Hampton Inn"), Plaintiff Esposito encountered architectural barriers, and such barriers violated Title III of the Americans with Disabilities Act (the "ADA").*fn1 Plaintiffs seek (1) declaratory judgment declaring that Defendant's property is in violation of Title III of the ADA; (2) injunctive relief requiring that Defendant making all readily achievable alterations to the Hampton Inn, to the extent required by the ADA; and (3) attorney's fees, costs, and litigation expenses. Subject matter jurisdiction in this case is based on 28 U.S.C. § 1331.
Pending before the Court are Plaintiffs' Motion for Summary Judgment, Defendant's Motion for Summary Judgment, Defendant's Cross Motion for Summary Judgment, and Defendant's Motion to Bar or Strike the Testimony of Plaintiffs' Expert. For the reasons stated below, Defendant's Motion and Cross Motion for Summary Judgment will be denied, and Plaintiffs' Motion for Summary Judgment will be denied.
Plaintiffs, Access 4 All, Inc. ("A4A") and Felix Esposito, commenced this action on December 6, 2004 against Defendant, Absecon Hospitality Corporation ("AHC"), alleging a violation of Title III of the Americans with Disabilities Act, 42 U.S.C. § 12181, et seq. (the "ADA").
Plaintiff A4A is a not-for-profit Florida corporation whose members consist of individuals with disabilities. A4A's stated purpose is to represent the interests of its members by ensuring that places of public accommodations are accessible to disabled persons. (Compl. ¶ 8). Plaintiff Esposito is a Florida resident who resides in Margate, Florida. (Compl. ¶ 2). Mr. Esposito was one of the founding members of A4A, which was formed approximately four to five years ago. Mr. Esposito served as A4A's first treasurer. (Esposito Dep., Def. Ex. 2 at 150:10-22). Defendant AHC owns and operates a Hampton Inn hotel located in Absecon, New Jersey (the "Hampton Inn").
Mr. Esposito currently resides in Florida. He has one sister and three brothers, none of whom live in New Jersey. Mr. Esposito's father is deceased and his mother currently resides in Long Island, New York. (Esposito Dep. at pp. 16-22). None of Mr. Esposito's family members lives in New Jersey except an uncle, whom Mr. Esposito has not seen for 30 or 40 years and has no knowledge of where in New Jersey the uncle resides. (Id. at 20:19-21:2, 21:3-7).
Mr. Esposito claims that two of his former girlfriends, Elizabeth Manley and Joan Rodriguez, reside in New Jersey. (Esposito Dep. at 173:7-9). Ms. Manley is a casino waitress that Mr. Esposito met during a visit in 2004 to one of the Atlantic City casinos. He does not know where Manley resides nor does he have her phone number. (Id. at 173:10-174:9). He testified that if he wanted to get into contact with her, he would have to go back to the casino where she works. (Id.). However, Mr. Esposito forgot the name of the casino in which Ms. Manley was employed. (Id.).
Mr. Esposito testified that he knew Ms. Rodriguez from Florida, before she moved to New Jersey approximately two years ago. He does not have Ms. Rodriguez's telephone number, does not know where Ms. Rodriguez resides, and has not spoken to her in two years. (Esposito Dep. at 176:9-20).
In 2004, Mr. Esposito visited Atlantic City with Richard Wyrsch. (Esposito Dep. at 81:22-82:5). At that time, Mr. Wyrsch was an employee of Access-Ability Inc, the entity that has provided an expert report for Plaintiffs in this case. Mr. Esposito testified that he stayed in five different hotels in connection with the Atlantic City trip. (Id. at 85:20-86:17). Mr. Esposito subsequently filed ADA lawsuits against all of the hotels in which he stayed.*fn2 (Id. at 97:3-6).
Mr. Esposito and Mr. Wyrsch stayed at the Hampton Inn on the night of August 31, 2004. Upon arrival at the Hampton Inn at approximately 9:00 p.m., Mr. Esposito and Mr. Wyrsch parked in a designated handicap space. (Esposito Dep. at 103:19-104:2). Mr. Esposito does not recall how he went from the parking space to the hotel lobby, or whether he encountered any difficulty. (Id. at 111:17-112:1). Indeed, Mr. Esposito's testimony contained many statements such as "I don't remember exactly how the hotel looked like," (Id. at 111:21-22), and "It's rough to remember 19 months ago. I can't remember." (Id. at 120:19-22; see also id. at 115:12-17).
Mr. Esposito did not have any problem checking into the hotel. (Esposito Dep. at 115:18-20). He stayed in Room 128, which is not one of the Hampton Inn's designate handicap accessible rooms. (Stillwagon Cert, ¶ 2). The Hampton Inn has four rooms designated "handicap accessible." (Id.).
After arriving in his room, Mr. Esposito and Mr. Wyrsch proceeded to examine the room. (Esposito Dep. at 121:18-23). Mr. Esposito claims taht he personally encountered accessibility barriers in his hotel room. These barriers include:
(1) A bathtub, instead of a roll-in shower, in the bathroom;
(2) No grab bars behind the toilet;
(3) No 36-inch clearance space on the sides of the beds;
(4) No lift to get into the bed;
(5) Storage hangers were too high;
(6) The bathtub controls were unreachable; and
(7) Not enough clearance spaces inside the bathroom. (Id. at 123:8-23, 126:10-11, 129:24-130:14). Mr. Wyrsch took measurements and photographs of the hotel room to document these barriers.
In addition to the room, Mr. Esposito claims he had trouble utilizing the soda machine and ice machine. (Esposito Dep. at 136:19-137:1). In addition, Mr. Esposito claims that he could not reach the public telephone in the lobby, but he admits that he did not attempt to use the public phone. (Id. at 138:12-16). Finally, Mr. Esposito claims that the restroom in the lobby was inaccessible because it had no grab bars. However, he did not attempt to use them. (Id. at 138:22-139:2). Mr. Esposito does not recall any other difficulties he encountered while staying at the Hampton Inn.
Mr. Esposito did not specifically request a handicap accessible room and was therefore given a non-handicap accessible room by the Hampton Inn. Defendant claims that a handicap accessible room was available for him had he requested one. (Stillwagon Cert., ¶¶ 2-6). During his stay, Mr. Esposito made no complaint to the hotel about his room assignment, (Id., ¶ 9), and did not report to the hotel about any problems or difficulties he encountered. (Esposito Dep. at 145:13-19).
After the commencement of this action, Plaintiffs' expert on ADA compliance, Access-Ability, Inc., examined the Hampton Inn on September 20, 2005. The expert report documented, in its view, ADA violations, remedial measures, and approximate cost. (Pl. Ex. B). The alleged ADA violations in Plaintiffs' expert report include accessibility barriers that Mr. Esposito personally encountered, as well as barriers relevant to his disability that he did not encounter (e.g. the door at the rear of the property), and barriers not relevant to his ...