Case 2:21-cv-01785-GRB-ST Document 1 Filed 04/01/21 Page 1 of 24 PageID #: 29
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` No.: ___________________
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`CLASS ACTION COMPLAINT
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`JURY TRIAL DEMANDED
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`Plaintiff,
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`v.
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`MAPLEBEAR, INC.,
`D/B/A INSTACART.COM,
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` Defendant.
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
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`MICHELLE TENZER-FUCHS, on behalf of
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`herself and all others similarly situated,
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`INTRODUCTION
`Plaintiff MICHELLE TENZER-FUCHS (hereinafter “Plaintiff”), on behalf of herself and
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`1.
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`others similarly situated, brings this civil rights action against Defendant MAPLEBEAR,
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`INC., D/B/A INSTACART.COM, for its failure to design, construct, maintain, and operate
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`its website to be fully accessible to and independently usable by Plaintiff and other blind
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`or visually-impaired people.
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`2.
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`Plaintiff is a visually-impaired and legally blind person who suffers from what constitutes
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`a “qualified disability” under the Americans with Disabilities Act of 1990 (“ADA”) and
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`thus requires screen-reading software to read website content using her computer. Plaintiff
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`uses the terms “blind” or “visually-impaired” to refer to all people with visual impairments
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`who meet the legal definition of blindness in that they have a visual acuity with correction
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`of less than or equal to 20 x 200. Some blind people who meet this definition have limited
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`vision while others are completely impaired and have no vision.
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`3.
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`4.
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`Defendant’s denial of full and equal access to its website, and therefore denial of its goods
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`and services offered thereby, is a violation of Plaintiff’s rights under the ADA.
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`Because Defendant’s website, www.instacart.com (the “Website” or “Defendant’s
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`website”), is not equally accessible to blind and visually-impaired consumers, it violates
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`the ADA. Defendant’s website contains various access barriers that make it extremely
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`difficult – if not impossible – for blind and visually-impaired consumers to attempt to
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`complete a transaction.
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`5.
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`Plaintiff seeks a permanent injunction to initiate a change in Defendant’s corporate
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`policies, practices, and procedures so that Defendant’s website will become and remain
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`accessible to blind and visually-impaired consumers.
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`JURISDICTION AND VENUE
`This Court has subject-matter jurisdiction over this action under 28 U.S.C. § 1331 and 42
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`6.
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`U.S.C. § 12181, as Plaintiff’s claims arise under Title III of the ADA, 42 U.S.C. § 12181,
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`et seq., and 28 U.S.C. § 1332.
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`7.
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`This Court has supplemental jurisdiction under 28 U.S.C. § 1367 over Plaintiff’s pendent
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`claims under the New York State Human Rights Law (“NYSHRL”), Article 15 of N.Y.
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`Executive Law § 290 et seq., and the New York City Human Rights Law (“NYCHRL”),
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`N.Y.C. Admin. Code § 8-101 et seq.
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`8.
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`Venue is proper in this district under 28 U.S.C. §1391(a)(2) because a substantial part of
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`the acts and omissions giving rise to Plaintiff’s claims occurred in this District. Defendant
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`has also been and is continuing to commit the alleged acts and omissions in this District
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`that caused injury and violated Plaintiff’s rights and the rights of other disabled individuals.
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`Courts have repeatedly held that the District in which Plaintiff tried and failed to access
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`the Website is a proper venue for a suit such as this one, “although the Website may have
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`been created and operated outside of the District, [because] the attempts to access the
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`Website in [this District] are part of the sequence of events underlying the claim. Therefore,
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`venue is proper in [this District].” Access Now, Inc. v. Otter Products, LLC, 280 F.Supp.3d
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`287, 294 (D. Mass. 2017).
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`9.
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`Defendant is also subject to personal jurisdiction in this District. Defendant has been, and
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`is presently, committing the acts and omissions alleged herein in the Eastern District of
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`New York, causing injury and violating the rights guaranteed to Plaintiff and other blind
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`or visually-impaired-consumers under the ADA, NYSHRL, and the NYCHRL. On several
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`separate occasions, Plaintiff has been denied the full use and enjoyment of the facilities,
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`goods, and services offered to the general public on Defendant’s Website here in Nassau
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`County due to the Website’s accessibility errors and barriers. Accordingly, by neglecting
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`to mitigate such errors and barriers, Defendant is actively and unlawfully deterring Plaintiff
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`and other blind or visually-impaired consumers here in Nassau County from accessing its
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`Website and utilizing the facilities, goods, or services offered thereon.
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`10.
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`This Court is empowered to issue a declaratory judgment under 28 U.S.C. §§ 2201 and
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`2202.
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`PARTIES
`Plaintiff MICHELLE TENZER-FUCHS, at all relevant times, has been a resident of
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`11.
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`Nassau County, New York.
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`12.
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`Plaintiff is legally blind, visually-impaired, and handicapped person, making her a member
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`of a protected class of individuals under the ADA, under 42 U.S.C. § 12102(1)-(2), and the
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`regulations implementing the ADA set forth at 28 CFR §§ 36.101 et seq., the NYSHRL,
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`and the NYCHRL. Plaintiff, MICHELLE TENZER-FUCHS, cannot use a computer
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`without the assistance of screen-reading software. Plaintiff has been denied the full
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`enjoyment of the facilities, goods, and services offered on www.instacart.com as a result
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`of the accessibility barriers that permeate the site.
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`13.
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`Defendant is and was at all relevant times a Delaware Corporation doing business in New
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`York.
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`14.
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`Defendant owns, manages, controls, and maintains the public Website www.instacart.com,
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`and the facilities, goods, and services offered thereupon, which qualify Defendant’s
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`Website as a place of public accommodation within the definition of Title III of the ADA,
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`42 U.S.C. § 12181(7).
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`15.
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`Under the law, Websites which hold themselves out to be “places of exhibition and
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`entertainment,” “places of recreation,” and/or “service establishments” are, by legal
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`definition, places of public accommodation. 28 CFR §§ 36.201 (a); 42 U.S.C. § 12181 (7).
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`NATURE OF ACTION
`The Internet is a significant source of information, constituting both a channel leading to
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`16.
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`endless discoveries, and a tool that can be actively used for conducting business, shopping,
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`learning, banking, researching, as well as for accomplishing many other activities, by
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`sighted, blind, and visually-impaired persons alike.
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`17.
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`Although the Internet has been vital to human life for some time now, it has become
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`exponentially more essential since the emergence of the COVID-19 pandemic. As this
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`pandemic swept the globe, the world has shifted to an almost entirely online model. It is
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`now essential for restaurants to have a website for customers to place pick-up and delivery
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`orders. Entertainment venues have had to adapt to being able to deliver performances to
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`their audiences via their websites or an online streaming service. Educational institutions
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`of all levels have had to shift away from classroom teaching entirely and replace it with
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`completely virtual instruction, often for the first time in their histories. And additionally,
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`due to store closures and new building capacity limitations, a large majority of stores and
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`other service-focused businesses today must now rely on their websites to serve as the main
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`point of contact and sale between their business and consumers. And in order for blind and
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`visually-impaired individuals to engage in all of these newly networked aspects of our
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`world today, the sites must be accessible to screen-reading software.
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`18.
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`Blind and visually-impaired users of Windows operating system computers and devices
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`have several screen-reading software programs available to them. Some of these programs
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`are available for purchase and other programs are available for subscription, but they all
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`work in largely the same ways: they read and/or describe the contents of a webpage to the
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`blind or visually-impaired users trying to access it. Job Access With Speech (“JAWS”),
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`and NonVisual Desktop Access (“NVDA”) are among the most popular.
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`19.
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`By using keyboards in conjunction with one or more of the aforementioned software
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`programs, blind and visually-impaired people have the ability to access websites and
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`interact with them as would a sighted user, because the software can describe the visual
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`information found on a computer screen or in some cases, can even display the content on
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`a refreshable Braille display. Each of these kinds of technology is what is known as screen-
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`reading software.
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`20.
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`Screen-reading software is currently the only method by which a blind or visually-impaired
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`person may independently access the Internet. Unless websites are designed to be read by
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`screen-reading software, blind and visually-impaired persons are unable to fully access
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`websites, or the information, products, goods, and services contained therein.
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`21.
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`For screen-reading software to function, however, the information on a website must be
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`capable of being rendered into text. If the website content is not capable of being rendered
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`into text, a blind or visually-impaired user will not be able to access the same content
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`available to sighted users.
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`22.
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`The international website standards organization, the World Wide Web Consortium,
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`known throughout the world as W3C, has published version 2.1 of the Web Content
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`Accessibility Guidelines (“WCAG 2.1”). WCAG 2.1 are well-established guidelines for
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`making websites accessible to blind and visually-impaired people. These guidelines are
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`universally followed by most large business entities and government agencies to ensure
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`their websites are accessible.
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`23.
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`Non-compliant websites pose common access barriers to blind and visually-impaired
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`persons. Common barriers encountered by blind and visually-impaired persons include,
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`but are not limited to, the following:
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`a.
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`Missing alternative text (“alt-text”) or text equivalent for every non-
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`text element. Alt-text is an invisible code embedded beneath a graphical image on
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`a website. Web accessibility requires that alt-text be coded with each picture so that
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`screen-reading software can speak the alt-text where a sighted user sees pictures,
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`which includes captcha prompts. Alt-text does not change the visual presentation,
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`but instead, a text box shows when the cursor moves over the picture;
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`b.
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`c.
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`Videos that do not maintain audio descriptions;
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`Title frames that do not include text for identification and
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`navigation;
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`d.
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`e.
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`Lack of equivalent text provided when using scripts;
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`Inaccessible forms that do not provide the same information and
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`functionality available for sighted persons;
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`f.
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`Information about the meaning and structure of content is not
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`conveyed by more than the visual presentation of the content;
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`g.
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`Text cannot be resized without assistive technology up to 200%
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`without losing content or functionality;
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`h.
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`If the content enforces a time limit, the user is not able to extend,
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`adjust or disable it;
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`i.
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`j.
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`Web pages that do not have titles describing the topic or purpose;
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`The purpose of each link cannot be determined from the link text
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`alone or from the link text and its programmatically determined link context;
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`k.
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`One or more keyboard operable user interfaces lack a mode of
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`operation where the keyboard focus indicator is discernible;
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`l.
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`The default human language of each web page cannot be
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`programmatically determined;
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`m.
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`Changing the setting of a user interface component automatically
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`causes a change of context that the user has not been advised of before using the
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`component;
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`n.
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`Labels or instructions are not provided when content requires user
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`input, which includes captcha prompts that require the user to verify that she is not
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`a robot;
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`o.
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`In content implemented by using markup languages, elements do not
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`have complete start and end tags, are not nested according to their specifications,
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`contain duplicate attributes, and/or are not unique;
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`p.
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`Inaccessible Portable Document Format (PDFs); and,
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`q.
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`The name and role of all User Interface elements cannot be
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`programmatically determined; items that can be set by the user cannot be
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`programmatically set; and/or notification of changes to these items is not available
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`to user agents, including via assistive technology.
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`STATEMENT OF FACTS
`Defendant is an online retailer that allows customers to shop at local grocery stores and
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`24.
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`creates a virtual shopping cart that is later fulfilled by a "personal shopper" on a designated
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`day. Defendant owns, operates, manages, and controls the website, www.instacart.com (its
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`“Website”), which allows Defendant to offer its items and services on both a national and
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`international scale. Defendant’s Website is an exclusive point of sale for Defendant’s
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`products.
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`25.
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`Defendant’s Website is a commercial marketplace. The Website offers features of a
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`physical marketplace in that it allows all consumers to browse goods and services, provides
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`details about the products, notifies users of special sale or clearance items, and completes
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`purchases of products, which Defendant will thereafter ensure the delivery of throughout
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`the United States, including in New York State.
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`26.
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`The Website offers products and services for online sale and general delivery to the public.
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`The Website offers features that ought to allow users to learn about Defendant’s products
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`and services, browse for items and information, access navigation bar descriptions, prices,
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`sales, coupons, and discount items, as well as to simply peruse the numerous items offered
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`for sale. The features offered by www.instacart.com include product descriptions,
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`information about the company, review boards, and purchase portals.
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`27.
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`It is, upon information and belief, Defendant’s policy and practice to deny Plaintiff and
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`other blind or visually-impaired users access to its Website, thereby denying the facilities
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`and services that are offered and integrated with its retail operations. Due to its failure and
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`refusal to remove access barriers to its Website, Plaintiff and visually-impaired persons
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`have been and are still being denied equal access to Defendant’s retail operations and the
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`numerous facilities, goods, services, and benefits offered to the public through its Website.
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`28.
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`Plaintiff is a visually-impaired and legally blind person, who cannot use a computer
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`without the assistance of screen-reading software. Plaintiff has visited the Website on
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`separate occasions using her NVDA screen-reader.
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`29.
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`During Plaintiff’s visits to the Website, www.instacart.com, the last occurring in March of
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`2021, Plaintiff encountered multiple access barriers which effectively denied her the full
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`enjoyment of the goods and services of the Website. Plaintiff visited Defendant’s Website
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`with an intent to browse and attempt to sign-up for Defendant’s service and purchase
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`groceries online. Despite her efforts, however, Plaintiff was denied a shopping experience
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`similar to that of a sighted individual due to the website’s lack of a range of features and
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`accommodations, which effectively barred Plaintiff from being able to make her desired
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`purchase.
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`30.
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`The issues started on the homepage of the site where Plaintiff immediately found that she
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`was unable to figure out how to navigate to other pages because her reader could not read
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`the page options to her. She could see images all over the page and a menu that appeared
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`to list site options, but none of these were readable to her screen-reader, even when she
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`actually selected one as opposed to just hovering her cursor over them.
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`31.
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`These issues indicate that many features on Defendant’s Website lack alt. text, which is the
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`invisible code embedded beneath a graphical image. Because of this issue, Plaintiff was
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`unable to differentiate what items and prompts were on the screen due to the failure of the
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`Website to adequately describe its content.
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`32.
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`Additionally on the homepage, Plaintiff encountered a box requesting she enter
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`information, but Plaintiff’s reader could not identify what the box was asking for
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`specifically, which was especially problematic because it appeared the site would not let
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`Plaintiff proceed to browse until she entered the information.
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`33.
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`Frustrated, Plaintiff instead had to repeatedly try entering random bits of personal
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`information, such as her email address and phone number, until finally, the box accepted
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`her entry – apparently, the box wanted Plaintiff to enter her home address.
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`34.
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`This area of the Website plainly failed to provide a label element or title attribute for each
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`field. This is a problem for the visually-impaired because the screen reader fails to
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`communicate the purpose of the page elements. It also leads to the user not being able to
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`understand what he or she is expected to insert into the subject field.
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`35. Moreover, when Plaintiff finally got to shopping pages and began looking for information
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`on cost and delivery options, Plaintiff found herself stuck in an unending loop of tabing
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`and clicking on something unreadable and being constantly redirected back to the
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`homepage. Each time she would have to navigate back to the second page of the site, and
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`here, even when she tabed and hovered over the button her reader could read that said
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`“Start Shopping Now,” she kept being redirected to the homepage. Despite her efforts,
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`Plaintiff was ultimately left paralyzed in her attempt to use www.instacart.com.
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`36.
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`Furthermore, the Website also contained a host of broken links, which is a hyperlink to a
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`non-existent or empty webpage. For the visually-impaired, this is especially paralyzing due
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`to the inability to navigate or otherwise determine where one is on the website once a
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`broken link is encountered. For example, upon coming across a link of interest, Plaintiff
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`was redirected to an error page. However, the screen-reader failed to communicate that the
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`link was broken. As a result, Plaintiff could not get back to her original search.
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`37.
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`Plaintiff has made multiple attempts to complete a purchase on www.instacart.com, most
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`recently in March of 2021, but was unable to do so independently because of the many
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`access barriers on Defendant’s website. These access barriers have caused
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`www.instacart.com to be inaccessible to, and not independently usable by, blind and
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`visually-impaired persons.
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`38.
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`These access barriers effectively denied Plaintiff the ability to use and enjoy Defendant’s
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`website the same way sighted individuals do. The access barriers Plaintiff encountered
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`have caused a denial of Plaintiff’s full and equal access in the past, and now deter Plaintiff
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`on a regular basis from accessing the Website.
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`39.
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`Due to the inaccessibility of Defendant’s Website, blind and visually-impaired customers
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`such as Plaintiff, who need screen-readers, cannot fully and equally use or enjoy the
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`facilities, products, and services Defendant offers to the public on its Website. The access
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`barriers Plaintiff encountered have caused a denial of Plaintiff’s full and equal access in
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`the past, and now deter Plaintiff on a regular basis from visiting the Website, presently and
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`in the future.
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`40.
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`But for the Website’s access barriers, Plaintiff would have returned to and further utilized
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`Defendant’s Website.
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`41.
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`If the Website was equally accessible to all, Plaintiff could independently navigate the
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`Website and complete a desired transaction as sighted individuals do.
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`42.
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`Through her attempts to use the Website, Plaintiff has actual knowledge of the access
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`barriers that make these services inaccessible and independently unusable by blind and
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`visually-impaired people.
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`43.
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`Because simple compliance with the WCAG 2.1 Guidelines would provide Plaintiff and
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`other visually-impaired consumers with equal access to the Website, Plaintiff alleges that
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`Defendant has engaged in acts of intentional discrimination, including but not limited to
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`the following policies or practices:
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`a.
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`Constructing and maintaining a website that is inaccessible to
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`visually-impaired individuals, including Plaintiff;
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`b.
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`Failure to construct and maintain a website that is sufficiently intuitive
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`so as to be equally accessible to visually-impaired individuals, including Plaintiff; and,
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`c.
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`Failing to take actions to correct these access barriers in the face of
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`substantial harm and discrimination to blind and visually-impaired consumers, such
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`as Plaintiff, as a member of a protected class.
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`44.
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`Defendant, therefore, uses standards, criteria, or methods of administration that have the effect
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`of discriminating or perpetuating the discrimination of others, as alleged herein.
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`45.
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`The ADA expressly contemplates the injunctive relief that Plaintiff seeks in this action. In
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`relevant part, the ADA requires:
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`In the case of violations of . . . this title, injunctive relief shall include
`an order to alter facilities to make such facilities readily accessible
`to and usable by individuals with disabilities . . . Where appropriate,
`injunctive relief shall also include requiring the . . . modification of
`a policy . . .
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` 42 U.S.C. § 12188(a)(2).
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`46.
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`Because Defendant’s Website has never been equally accessible, and because Defendant
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`lacks a corporate policy that is reasonably calculated to cause its Website to become and
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`remain accessible, Plaintiff invokes 42 U.S.C. § 12188(a)(2) and seeks a permanent
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`injunction requiring:
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`a. that Defendant retain a qualified consultant acceptable to Plaintiff (“Mutually
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`Agreed Upon Consultant”) who shall assist it in improving the accessibility of its
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`Website so the goods and services on them may be equally accessed and enjoyed
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`by individuals with vision-related disabilities;
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`b. that Defendant work with the Mutually Agreed Upon Consultant to ensure that all
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`employees involved in website development and content development be given
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`web accessibility training on a periodic basis, including onsite training to create
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`accessible content at the design and development stages;
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`c. that Defendant work with the Mutually Agreed Upon Consultant to perform an
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`automated accessibility audit on a periodic basis to evaluate whether Website may
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`be equally accessed and enjoyed by individuals with vision-related disabilities on
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`an ongoing basis;
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`d. that Defendant work with the Mutually Agreed Upon Consultant to perform end-
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`user accessibility/usability testing on a periodic basis with said testing to be
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`performed by individuals with various disabilities to evaluate whether Website may
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`be equally accessed and enjoyed by individuals with vision-related disabilities on
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`an ongoing basis;
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`e. that Defendant work with the Mutually Agreed Upon Consultant to create an
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`accessibility policy that will be posted on its Website, along with an e-mail address
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`and tollfree phone number to report accessibility-related problems; and
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`f.
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`that Plaintiff, their counsel, and its experts monitor Defendant’s Website for up to
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`two years after the Mutually Agreed Upon Consultant validates it is free of
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`accessibility errors/violations to ensure it has adopted and implemented adequate
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`accessibility policies.
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`47.
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`Although Defendant may currently have centralized policies regarding maintaining and
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`operating its Website, Defendant lacks a plan and policy reasonably calculated to make
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`them fully and equally accessible to, and independently usable by, blind and other visually-
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`impaired consumers.
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`48.
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`Defendant has, upon information and belief, invested substantial amounts of money in
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`developing and maintaining its Website and, through the site, has generated significant
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`revenue. The invested amounts are far greater than the associated cost of making their
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`Website equally accessible to visually-impaired consumers.
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`49. Without injunctive relief, Plaintiff and other visually-impaired consumers will continue to
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`be unable to independently use the Website, violating their rights.
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`CLASS ACTION ALLEGATIONS
`Plaintiff, on behalf of herself and all others similarly situated, seeks to certify a nationwide
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`50.
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`class under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the United
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`States who have attempted to access Defendant’s Website and as a result have been denied
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`access to the equal enjoyment of goods and services, during the relevant statutory period.
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`51.
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`Plaintiff, on behalf of herself and all others similarly situated, seeks certify a New York City
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`subclass under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the City of
`
`New York who have attempted to access Defendant’s Website and as a result have been denied
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`Case 2:21-cv-01785-GRB-ST Document 1 Filed 04/01/21 Page 15 of 24 PageID #: 43
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`access to the equal enjoyment of goods and services offered, during the relevant statutory
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`period.
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`52.
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`Common questions of law and fact exist amongst Class, including:
`
`a.
`
`Whether Defendant’s Website is a “public accommodation” under
`
`the ADA;
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`b.
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`Whether Defendant’s Website is a “place or provider of public
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`accommodation” under the NYSHRL and the NYCHRL;
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`c.
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`Whether Defendant’s Website denies the full and equal enjoyment
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`of its products, services, facilities, privileges, advantages, or accommodations to
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`people with visual disabilities, violating the ADA; and
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`d.
`
`Whether Defendant’s Website denies the full and equal enjoyment
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`of its products, services, facilities, privileges, advantages, or accommodations to
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`people with visual disabilities, violating the NYSHRL and the NYCHRL.
`
`53.
`
`Plaintiff’s claims are typical of the Class. The Class, similarly to Plaintiff, are severely
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`visually-impaired or otherwise blind and likewise claim that Defendant has violated the
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`ADA, NYSHRL, and the NYCHRL by failing to update or remove access barriers on its
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`Website so either can be independently accessible to the Class.
`
`54.
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`Plaintiff will fairly and adequately represent and protect the interests of the Class Members
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`because Plaintiff has retained and is represented by counsel competent and experienced in
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`complex class action litigation, and because Plaintiff has no interests antagonistic to the
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`Class Members. Class certification of the claims is appropriate under Fed. R. Civ. P.
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`23(b)(2) because Defendant has acted or refused to act on grounds generally applicable to
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`the Class, making appropriate both declaratory and injunctive relief with respect to Plaintiff
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`and the Class as a whole.
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`55.
`
`Alternatively, class certification is appropriate under Fed. R. Civ. P. 23(b)(3) because fact
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`and legal questions common to Class Members predominate over questions affecting only
`
`individual Class Members, and because a class action is superior to other available methods
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`for the fair and efficient adjudication of this litigation.
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`56.
`
`Judicial economy will be served by maintaining this lawsuit as a class action in that it is
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`likely to avoid the burden that would be otherwise placed upon the judicial system by the
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`filing of numerous similar suits by people with visual disabilities throughout the United
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`States.
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`FIRST CAUSE OF ACTION
`VIOLATIONS OF THE ADA, 42 U.S.C. § 12181 et seq.
`Plaintiff, on behalf of herself and the Class Members, repeats and realleges every allegation
`
`57.
`
`of the preceding paragraphs as if fully set forth herein.
`
`58.
`
`Section 302(a) of Title III of the ADA, 42 U.S.C. § 12101 et seq., provides:
`
`No individual shall be discriminated against on the basis of
`disability in the full and equal enjoyment of the goods, services,
`facilities, privileges, advantages, or accommodations of any place
`of public accommodation by any person who owns, leases (or leases
`to), or operates a place of public accommodation.
`
`42 U.S.C. § 12182(a).
`
`
`
`59.
`
`The Website instacart.com is a public accommodation within the definition of Title III of
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`the ADA, 42 U.S.C. § 12181(7). The Website offers services to the general public, and as
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`such, must be equally accessible to all potential consumers.
`
`60.
`
`Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny
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`individuals with disabilities the opportunity to participate in or benefit from the products,
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`services, facilities, privileges, advantages, or accommodations of an entity. 42 U.S.C. §
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`12182(b)(1)(A)(i).
`
`61.
`
`Under Section 302(b)(2) of Title III of the ADA, unlawful discrimination also includes,
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`among other things:
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`[A] failure to make reasonable modifications in policies, practices,
`or procedures, when such modifications are necessary to afford such
`goods,
`services,
`facilities,
`privileges,
`advantages,
`or
`accommodations to individuals with disabilities, unless the entity
`can demonstrate
`that making
`such modifications would
`fundamentally alter the nature of such goods, services, facilities,
`privileges, advantages or accommodations; and a failure to take such
`steps as may be necessary to ensure that no individual with a
`disability is excluded, denied services, segregated or otherwise
`treated differently than other individuals because of the absence of
`auxiliary aids and services, unless the entity can demonstrate that
`taking such steps would fundamentally alter the nature of the good,
`service, facility, privilege, advantage, or accommodation being
`offered or would result in an undue burden.
`
`42 U.S.C. § 12182(b)(2)(A)(ii)-(iii).
`
`
`
`62.
`
`The acts alleged herein constitute violations of Title III of the ADA, and the regulations
`
`promulgated thereunder. Plaintiff, who is a member of a protected class of persons under
`
`the ADA, has a physical disability that substantially limits the major life activity of sight
`
`within the meaning of 42 U.S.C. §§ 12102(1)(A)-(2)(A).
`
`63.
`
`In the present case, Plaintiff has been denied full and equal access to the Website and
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`consequently has also been denied the services that are provided to other patrons who are
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`not disabled. Instead, Plaintiff has been provided services that are inferior to the services
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`provided to non-disabled persons, and Defendant has failed to take any prompt or equitable
`
`steps to remedy this discriminatory conduct. These violations are ongoing.
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`64.
`
`Under 42 U.S.C. § 12188 and the remedies, procedures, and rights set forth and
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`incorporated therein, Plaintiff, requests relief as set forth below.
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`SECOND CAUSE OF ACTION
`VIOLATIONS OF THE NYSHRL
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`65.
`
`Plaintiff repeats, realleges, and incorporates by reference the allegations contained in
`
`paragraphs 1 through 72