Nobu Still Faces Suit After Settling With Feds

MANHATTAN (CN) - Though Nobu Restaurant has agreed to access for disabled patrons, a wheelchair user may still have a case about its earlier condition, a federal judge ruled.

Named after celebrity chef Nobuyuki Matsuhisa, Nobu is an international franchise restaurant that combines traditional Japanese dishes with South American cuisine. The Nobu New York location in Tribeca operates in an historical preservation area of lower Manhattan.

Last year, the Department of Justice clamped down on the renowned restaurant for alleged violations of the Americans with Disabilities Act (ADA), and the parties entered into an agreement to improve access to its public entrance, dining area, host station and restrooms. Nobu promised to complete its upgrades within three years, submit to federal monitoring and submit annual reports about its progress.

Dan Gropper, who uses a wheelchair and has limited use of his hands and arms, sued the storied restaurant months earlier in a complaint identifying 45 architectural barriers preventing him from dining there.

Nobu argued that its agreement with the government made that lawsuit moot.

U.S. District Judge Denise Cote disagreed Thursday in a 20-page opinion stating that "a defendant cannot automatically moot a case simply by ending its unlawful conduct once sued."

"Otherwise, a defendant could engage in unlawful conduct, stop when sued to have the case declared moot, then pick up where he left off, repeating this cycle until he achieves all his unlawful ends," she added, quoting the Supreme Court opinion in Knox v. SEIU.

Since the agreement with the Justice Department does address "the majority of Gropper's ADA claims - Nobu Restaurant's lack of an accessible public entrance, adequate interior space and access aisles, and ADA-compliant bathroom," Cote conceded that "there is no longer a live controversy as to these claims."

"But, because the VCA consists largely of promises that Nobu will fulfill in the future, it cannot be contended that Nobu has 'completely and irrevocably eradicated the effects' of the alleged ADA violation," the decision continues, abbreviating voluntary cooperating agreement.

Though she would not dismiss the ADA allegations, Cote dismissed Gropper's other claim for conspiracy.

Lawyers for both parties did not immediately respond to a request for comment.

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