17-3709-cv
Demirayak v. City of New York


                                UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT


                                       SUMMARY ORDER
        Rulings by summary order do not have precedential effect. Citation to a summary
order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of
Appellate Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in
a document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 24th day of August, two thousand eighteen.

PRESENT:          JOSÉ A. CABRANES,
                  GERARD E. LYNCH,
                  SUSAN L. CARNEY,
                               Circuit Judges,




CANER DEMIRAYAK,

                            Plaintiff-Appellant,                              17-3709-cv


                  v.

CITY OF NEW YORK, NEW YORK CITY DEPARTMENT
OF CITYWIDE ADMINISTRATIVE SERVICES, LISETTE
CAMILO, RICK D. CHANDLER P.E., IRA GLUCKMAN
RA, NEW YORK CITY DEPARTMENT OF BUILDINGS,
STATE OF NEW YORK, OFFICE OF COURT
ADMINISTRATION, AND HON. BARRY CLARKE,

                            Defendants-Appellees.



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FOR PLAINTIFF-APPELLANT:                                     CANER DEMIRAYAK, pro se, Massapequa,
                                                             NY.

FOR MUNICIPAL DEFENDANTS-APPELLEES: DANIEL MATZA-BROWN (Jane L. Gordon
                                    on the brief), for Zachary W. Carter,
                                    Corporation Counsel of the City of New
                                    York, New York, NY.

FOR STATE DEFENDANTS-APPELLEES:                              SCOTT EISMAN, Assistant Solicitor
                                                             General of Counsel (Steven C. Wu,
                                                             Deputy Solicitor General, on the brief), for
                                                             Barbara D. Underwood, Attorney General
                                                             for the State of New York, New York,
                                                             NY.

       Appeal from a November 2, 2017, 2017 order of the United States District Court for the
Eastern District of New York (William F. Kuntz, Judge).

        UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the November 2, 2017 order of the District Court be and
hereby is AFFIRMED.

         Plaintiff-appellant Caner Demirayak (“plaintiff”) appeals from the District Court’s order
denying his request for a preliminary injunction against the municipal and state Appellees
(“defendants”) alleging violations of, inter alia, the Americans with Disabilities Act (“ADA”) and the
Rehabilitation Act (“RA”). Plaintiff alleged that defendants violated the Acts by failing to provide
reliable access in the New York State Supreme Court courthouse where plaintiff, who relies on a
wheelchair for mobility, frequently practices law. He contends that various courtrooms, chambers,
and restrooms within the courthouse are not ADA-compliant. Soon after filing an amended
complaint, plaintiff moved for a preliminary injunction requiring defendants to (1) remove all
inaccurate accessibility signs and install new, correct signs; (2) keep the courthouse’s handicap-
accessible bathrooms in working order; (3) purchase and install temporary portable ramps and lifts
for use in the courthouse jury coordinating part, law library, and fourth and fifth floor staircases; (4)
submit a plan for removing all architectural barriers; and (5) prevent any government actor from
retaliating against plaintiff including by, but not limited to, circumventing the random assignment of
judges or issuing unfavorable rulings or decisions.

        The District Court denied plaintiff’s motion for a preliminary injunction on November 2,
2017. Plaintiff then moved for an “emergency” injunction pending appeal of the District Court’s
denial of a preliminary injunction and for an expedited appeal. We denied plaintiff’s motion for an



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emergency injunction in its entirety on December 7, 2017. Dkt. No. 68. We now consider plaintiff’s
merits appeal of the District Court’s order of November 2, 2017, denying a preliminary injunction.

         At oral argument, plaintiff withdrew two of his demands for relief (for the submission of
architectural plans and the prohibition of retaliation) and conceded that a third (the correction of
signage) was moot. Accordingly, we need not further address these issues. We thus focus on
plaintiff’s remaining requests for injunctive relief: (1) the maintenance of the courthouse’s three
accessible bathrooms in working order; and (2) the installation of ramps and lifts throughout the
courthouse.

                                             DISCUSSION

        We review the denial of a preliminary injunction for abuse of discretion. E.g., Nicosia v.
Amazon.com, Inc., 834 F.3d 220, 238 (2d Cir. 2016). “A district court abuses its discretion when its
decision rests on an error of law or clearly erroneous finding of fact.” Id.

        A party seeking a preliminary injunction must ordinarily establish that (1) he is likely to
succeed on the merits, (2) he is likely to suffer irreparable harm in the absence of preliminary relief,
(3) the balance of equities tips in his favor, and (4) an injunction is in the public interest. Winter v.
NRDC, Inc., 555 U.S. 7, 20 (2008). Irreparable harm is “the single most important prerequisite for
the issuance of a preliminary injunction.” Bell & Howell: Mamiya Co. v. Masel Supply Co. Corp., 719
F.2d 42, 45 (2d Cir. 1983). A heightened standard applies when a movant seeks a preliminary
injunction that either alters the status quo or would provide the ultimate relief sought in the
underlying action. Tom Doherty Assocs., Inc. v. Saban Entm’t, Inc., 60 F.3d 27, 33-34 (2d Cir. 1995).
Under this heightened standard, plaintiff must make a clear showing that he is entitled to the relief
requested, or that “extreme or very serious damage” will result from denial of preliminary relief.
Nicholson v. Scoppetta, 344 F.3d 154, 165 (2d Cir. 2003).

                                                    I.

        Plaintiff has failed to show that the current condition of the courthouse bathrooms results in
extreme or serious harm. Although plaintiff alleged that the three accessible bathrooms in the
Courthouse were not kept in working order, his motion and accompanying affidavit did not contain
sufficient facts regarding how frequently accessible bathrooms were closed or in disrepair. Although
the lack of any accessible bathroom would likely suffice to show actual and imminent harm, plaintiff
did not allege any day where all three accessible bathrooms were inoperable. The fact that one or
two of the bathrooms might be out of order at different times over the course of a year, while
inconvenient, does not present an actual, imminent threat of extreme or very serious damage.

       The evidence presented by plaintiff also does not establish that extreme or serious damage
would result without the ramps and lifts that plaintiff has requested. The only specific allegation that
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plaintiff makes as to the damage caused to him by this lack of ramps and lifts is his inability to
observe a single trial on August 16, 2017. As defendants note, plaintiff has otherwise been provided
full access to an ADA-accessible courtroom when he practices in the courthouse. The record thus
falls short of the clear showing of extreme and serious damage that is required.

                                                   II.

         Plaintiff has also not established a clear likelihood of success on the merits. To establish an
ADA or RA violation, plaintiff must establish: (1) that he was a qualified individual with a disability;
(2) that the defendants are subject to the Acts they are alleged to have violated; and (3) that he was
“denied the opportunity to participate in or benefit from the defendant[s’] services, programs, or
activities, or was otherwise discriminated against by the defendant[s] because of his disability.”
Disabled in Action v. Bd. of Elections, 752 F.3d 189, 196-97 (2d Cir. 2014) (quoting McElwee v. Cnty. of
Orange, 700 F.3d 635, 640 (2d Cir. 2012)).

         Because plaintiff has not established that he was denied access to all available bathrooms at
any given time, the availability of one or more functioning accessible bathrooms could qualify under
the ADA as an “alternate accessible” bathroom, 28 CFR §35.150(b)(1). Because defendants can
avoid liability under the ADA by providing alternate accessible accommodations, defendant has
failed to establish a clear likelihood of success on the merits.

         Relatedly, plaintiff has not established a clear likelihood of success on the merits with regard
to his claim for construction and installation of ramps and stair lifts. His motion papers did not
acknowledge the accommodations defendants had previously provided and are currently willing to
provide, including the use of alternate accessible and fully ADA-compliant courtrooms in the very
same courthouse.

                                                   III.

       Plaintiff also argues that he was entitled to a hearing to resolve factual disputes. That
argument is unavailing, however, as there were no facts in dispute as to plaintiff’s access to the
courthouse. Rather, the District Court accepted plaintiff’s allegations as true for the purposes of the
motion before it. See In re Rationis Enters., Inc. of Panama, 261 F.3d 264, 269 (2d Cir. 2001) (“On a
motion for an injunction, ‘[w]here … essential facts are in dispute, there must be a hearing and
appropriate findings of fact must be made,’” (quoting Visual Scis., Inc. v. Integrated Commc’ns Inc., 660
F.2d 56, 58 (2d Cir. 1981))).




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                                                  CONCLUSION

       We have considered plaintiff’s remaining arguments and find them to be without merit. 1
Accordingly, we AFFIRM the order of the District Court.


                                                                  FOR THE COURT:
                                                                  Catherine O’Hagan Wolfe, Clerk of Court




1Our decision on this appeal of a denial of a preliminary injunction does not, of course, reflect a view about what the
ultimate merits of plaintiff’s suit will prove to be after a more complete development of the factual record.
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