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Calcano v. Swarovski North Am. Ltd.

United States District Court for the Southern District of New York

April 24, 2020, Decided; April 24, 2020, Filed

1:19-cv-10536-GHW

Opinion

MEMORANDUM OPINION AND ORDER

GREGORY H. WOODS, United States District Judge:

This is another case where a visually impaired person has sued a retailer for failing to stock Braille or otherwise accessible gift cards. Because this complaint suffers from the same pitfalls as those in Dominguez v. Banana Republic, LLC, No. 1:19-CV-10171-GHW, 2020 U.S. Dist. LEXIS 72193, 2020 WL 1950496 (S.D.N.Y. Apr. 23, 2020)1 , the Court comes to the same conclusion and GRANTS Defendant's motion to dismiss.

I. BACKGROUND

Like the allegations in Banana Republic, the facts presented in the complaint are relatively straightforward.

Swarovski North America Limited ("Defendant" or "Swarovski"), like many other retail businesses, offers consumers the opportunity to purchase "pre-paid cash cards, colloquially [*2]  referred as 'store gift cards,'" that can be used in place of cash at its stores. First Amended Complaint ("FAC"), Dkt. No. 20, ¶ 4 & n.2. Though they look and feel like credit cards, see FAC ¶ 35, they are redeemable only at "a specified merchant or affiliated merchants." FAC ¶ 29 & n.4.

On November 9, 2019, Marcos Calcano ("Plaintiff") called Swarovski's customer service office to ask whether the store sold Braille gift cards. See FAC ¶ 16. An employee told him that Swarovski did not. See FAC ¶ 16. During that call, the employee did not offer Plaintiff any alternative auxiliary aids or services. See FAC ¶ 17. Sometime later, Plaintiff unsuccessfully attempted to locate accessible Swarovski gift cards on his own. See FAC ¶ 18. The lack of an accessible gift card deterred Plaintiff from "fully and equally us[ing] or enjoy[ing]" the "facilities, goods, and services Defendant offers to the public at its retail stores." FAC ¶ 42. As soon as accessible gift cards are available, however, "Plaintiff intends to immediately go purchase" one. FAC ¶ 45.

Plaintiff sued Swarovski under the ADA, the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 290 et seq., and New York City Human Rights Law ("NYCHRL"),  [*3] N.Y.C. Admin. Code § 8-101 et seq., seeking compensatory damages, punitive damages, and a permanent injunction to "cause a change in Defendant's corporate policies, practices, and procedures so that Defendant's store gift cards will become and remain accessible to blind and visually-impaired consumers," and, of course, attorney's fees.

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2020 U.S. Dist. LEXIS 73039 *

MARCOS CALCANO, on behalf of all other persons similarly situated, Plaintiff, -against- SWAROVSKI NORTH AMERICA LIMITED, Defendant.

CORE TERMS

gift card, amended complaint, retail store, per curiam, articulated, consumers, proximity, customer, merchant, asserts, damages, factors, intends, reasons, offers, retail, blind, cards