Plaintiffs brought an action under the American with Disabilities Act, 42 U.S.C. 12101, saying that the presence of tobacco smoke in the Defendant’s restaurants prevents the Plaintiffs from having the opportunity to benefit from the Defendant’s goods and services. The Plaintiffs, all of whom have adverse reactions when in the presence of smoke, also allege that the Defendant’s restaurants are places of public accommodation under 42 U.S.C. 12181. They seek an injunction against smoking in the Defendant’s restaurants, “thereby giving the plaintiffs equal access to said restaurants.” A District Court judge, at 9.1. TPLR 2.9, affirmed, approved and adopted a Magistrate Judge’s recommended ruling granting the defendant’s motion to dismiss. See Felsenthal, E., “Disabilities Act Is Being Invoked in Diverse Cases,” Wall Street Journal, March 31, 1993, B1; Johnson, K., “Lawsuits Seek to Ban Smoking in Fast-Food Restaurants,” New York Times, April 3, 1993, 28; Keegan, P., “Mothers Hit Fast Feeders with Smoking Policy Suit,” Nation’s Restaurant News, April 26, 1993, 3; Taylor, S., “McSuit: American Fast Food Icon Hit with Litigation over ETS,” Indoor Air Review, June 1993, 1, 8; Hansen, M., “Suits Seek Fast-Food Smoking Ban,” American Bar Association Journal, July 1993, 40; “Smoking Case is Dismissed,” Wall Street Journal, March 16, 1994, B4; Pines, D., “Appeals Panel Reinstates Smoking Claim,” New York Law Journal, April 6, 1995, 1, 6; and Hansen, M., “Smoking Suit Fails,” American Bar Association Journal, May 1994, 27.
On April 4, 1995, the U.S. Court of Appeals for the Second Circuit reversed, at 51 F.3d 353, 1995 U.S. App. LEXIS 7643, 4 AD Cases 353, 10.2 TPLR 2.33 (2nd Cir. 1995), the judgments of the district court, ruling that “we find that plaintiffs’ complaints do on their face state a cognizable claim against the defendants under the Americans with Disabilities Act.” The court noted that “the determination of whether a particular modification is ‘reasonable’ involves a fact-specific, case-by-case inquiry that considers, among other factors, the effectiveness of the modification in light of the disability in question and the cost to the organization that would implement it . . . . We see no reason why, under the appropriate circumstances, a ban on smoking would not be a reasonable modification.” See “Smoking Ban Lawsuit,” Wall Street Journal, April 7, 1995, B5; Fry, J., “Federal Appeals Court Says Nonsmokers Can File Suit Under ADA,” Indoor Air Review, June 1995, 19; and 39 Trial Lawyer’s Guide 358-360, Fall 1995.
872 F. Supp. 1092, 8.2 TPLR 3.129, No. 3:93 CV 665, U.S. District Court (D. Conn. 1993).