PHILLIP SULLIVAN, JR vs. MELTY CONE LLC d/b/a MELTY CONE (Case 515396/2019 )

PHILLIP SULLIVAN, JR., represented by LEE LITIGATION GROUP, PLLC , filed suit in State of New York on 2019-07-15 alleging that MELTY CONE LLC d/b/a MELTY CONE website www.meltycone.com/ is not accessible using the following testing standard(s): WCAG 2.1, Section 508.

The plaintiff's issues with the site mentioned in the suit include:

  • Defendant’s policy and practice of denying the deaf and hard of hearing access to the Website, including the goods and services offered by Defendant through the Website. Due to Defendant’s failure and refusal to remove access barriers to the Website, deaf and hard-of-hearing individuals have been and are being denied equal access to the Website, as well as to the numerous goods, services and benefits offered to the public through the Website.
  • The Website contains access barriers that prevent free and full use by Plaintiff and other deaf or hard-of-hearing persons, including but not limited to the lack of closed captioning. This barrier is in violation of WCAG 2.1 Guideline 1.2.2, which mandates that video content contain captioning.
  • Due to the Website’s inaccessibility, Plaintiff cannot access the audio portion of the videos offered by Defendant. Some deaf and hard-of-hearing individuals may require an interpreter to apprehend the audio portion of the video or require assistance from their friends or family. By contrast, if the Website was accessible, a deaf or hard-of-hearing person could independently watch the videos and enjoy the services provided by Defendant as hearing individuals can and do.
  • The Website thus contains access barriers which deny full and equal access to Plaintiff, who would otherwise use the Website and who would otherwise be able to fully and equally enjoy the benefits and services of the Website in New York State.
  • Plaintiff attempted to watch the videos “Latch Instructional Video”, “Cyrill by Spigen- NYC”, “Industry City Brooklyn Waterfront Doc” and “Liveperson” on the website but was unable to do so independently because of the lack of closed captioning on the Website, causing them to be inaccessible to Plaintiff because of his disability. The videos are found on the Website and located at: (a) https://vimeo.com/327998126 (b) https://vimeo.com/310988496 (c) https://vimeo.com/305249984 (d) https://vimeo.com/315014726
  • Defendant engages in acts of intentional discrimination, including but not limited to the following policies or practices: (a) constructing and maintaining a website that is inaccessible to deaf and hard-of-hearing individuals with knowledge of the discrimination; and/or (b) constructing and maintaining a website that is sufficiently intuitive and/or obviously inaccessible to deaf and hard-of hearing individuals; and/or (c) failing to take actions to correct access barriers in the face of substantial harm and discrimination to deaf and hard-of-hearing individuals.

The plaintiff is seeking the following (Prayer for relief):

  • A preliminary and permanent injunction to prohibit Defendant from violating the N.Y. Exec. Law § 296, et seq., N.Y.C. Administrative Code § 8-107, et seq., and the laws of New York;
  • A preliminary and permanent injunction requiring Defendant to take all the steps necessary to make the Website fully functional and compliant with WCAG 2.1 A and AA Standards, so that the Website is readily accessible to and usable by deaf and hard-of-hearing individuals and other individuals with impairments, such as those who are visually impaired.
  • A declaration that Defendant owns, maintains, and/or operates the Website in a manner which discriminates against the deaf and hard of hearing, and which fails to provide access for persons with disabilities as required by N.Y. Exec. Law § 296, et seq., N.Y.C. Administrative Code § 8-107, et seq., and the laws of New York;
  • Compensatory damages in an amount to be determined by proof, including all applicable statutory damages and fines, to Plaintiff for violations of their civil rights under New York State Human Rights Law and City Law;
  • Plaintiff’s reasonable attorneys’ fees, statutory damages, expenses, and costs of suit as provided by state law;
  • For pre- and post-judgment interest to the extent permitted by law; and
  • Such other and further relief as the Court deems just and proper.

The specific laws that MELTY CONE LLC d/b/a MELTY CONE allegedly violated include:

  • Violation of New York State Human Rights Law, N.Y. Exec. Law, Article 15 (Executive Law § 292 et seq.
  • Violation of New York State Civil Rights Law, NY CLS Civ R,Article 4 (CLS Civ R § 40 et seq.)
  • Violation of New York City Human Rights Law,N.Y.C. Administrative Code § 8102, et seq.
  • Declaratory Relief