U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:20−cv−03338−VEC

CASREF,ECF

Martinez et al v. Cuomo Assigned to: Judge Valerie E. Caproni Referred to: Magistrate Judge Katharine H. Parker (Settlement) Cause: 42:12101 The Americans with Disabilities Act of 1990
Plaintiff

Date Filed: 04/29/2020 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question

Dennis Martinez

represented by Jessica Barlow Disability Rights New York 44 Exchange Blvd Ste 110 Rochester, NY 14614 (518)−512−4841 Fax: (585)−348−9823 Email: jessica.barlow@drny.org ATTORNEY TO BE NOTICED

Plaintiff Douglas Nguyen

represented by Jessica Barlow (See above for address) ATTORNEY TO BE NOTICED

Plaintiff James Hallenbeck

represented by Jessica Barlow (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Jill Wildberger

represented by Jessica Barlow (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Disability Rights New York

represented by Jessica Barlow (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Andrew M. Cuomo in his official capacity as Governor of New York State

represented by Andrew Stuart Amer New York State Department of Law (28 Liberty) 28 Liberty Street New York, NY 10005 212−416−6127 Fax: 212−416−6009 Email: andrew.amer@ag.ny.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed # Docket Text

04/29/2020 04/29/2020 04/29/2020 04/29/2020 04/29/2020 04/29/2020
04/29/2020
04/29/2020
04/29/2020 04/29/2020 04/29/2020 04/29/2020
04/29/2020

1 COMPLAINT against Andrew M. Cuomo. (Filing Fee $ 400.00, Receipt Number ANYSDC−19629435)Document filed by Disability Rights New York, James Hallenbeck, Douglas Nguyen, Dennis Martinez, Jill Wildberger..(Barlow, Jessica) (Entered: 04/29/2020)
2 FILING ERROR − DEFICIENT PLEADING − PDF ERROR − CIVIL COVER SHEET filed..(Barlow, Jessica) Modified on 4/29/2020 (pc). (Entered: 04/29/2020)
3 REQUEST FOR ISSUANCE OF SUMMONS as to Andrew M. Cuomo, re: 1 Complaint. Document filed by Disability Rights New York, James Hallenbeck, Dennis Martinez, Douglas Nguyen, Jill Wildberger..(Barlow, Jessica) (Entered: 04/29/2020)
4 MOTION for Temporary Restraining Order . Document filed by Disability Rights New York, James Hallenbeck, Dennis Martinez, Douglas Nguyen, Jill Wildberger. (Attachments: # 1 Memo of Law, # 2 Affidavit Supporting Documents for the Memo of Law, # 3 Complaint).(Barlow, Jessica) (Entered: 04/29/2020)
***NOTICE TO ATTORNEY REGARDING PARTY MODIFICATION. Notice to attorney Jessica Barlow. The party information for the following party/parties has been modified: Govenor Andrew M. Cuomo. The information for the party/parties has been modified for the following reason/reasons: party text was omitted;. (pc) (Entered: 04/29/2020)
***NOTICE TO ATTORNEY REGARDING DEFICIENT CIVIL COVER SHEET. Notice to attorney Jessica Barlow to RE−FILE Document No. 2 Civil Cover Sheet. The filing is deficient for the following reason(s): Second page is missing;. Re−file the document using the event type Civil Cover Sheet found under the event list Other Documents and attach the correct PDF. Use civil cover sheet issued by S.D.N.Y. dated June 2017. The S.D.N.Y. Civil Cover Sheet dated June 2017 is located at http://nysd.uscourts.gov/file/forms/civil−cover−sheet.. (pc) (Entered: 04/29/2020)
CASE OPENING INITIAL ASSIGNMENT NOTICE: The above−entitled action is assigned to Judge Valerie E. Caproni. Please download and review the Individual Practices of the assigned District Judge, located at https://nysd.uscourts.gov/judges/district−judges. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Please download and review the ECF Rules and Instructions, located at https://nysd.uscourts.gov/rules/ecf−related−instructions..(pc) (Entered: 04/29/2020)
Magistrate Judge Katharine H. Parker is so designated. Pursuant to 28 U.S.C. Section 636(c) and Fed. R. Civ. P. 73(b)(1) parties are notified that they may consent to proceed before a United States Magistrate Judge. Parties who wish to consent may access the necessary form at the following link: https://nysd.uscourts.gov/sites/default/files/2018−06/AO−3.pdf. (pc) (Entered: 04/29/2020)
Case Designated ECF. (pc) (Entered: 04/29/2020)
5 CIVIL COVER SHEET filed..(Barlow, Jessica) (Entered: 04/29/2020)
6 ELECTRONIC SUMMONS ISSUED as to Andrew M. Cuomo..(pc) (Entered: 04/29/2020)
7 ORDER TO SHOW CAUSE FOR PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER granting 4 Motion for TRO. ORDERED, that the above named Defendant show cause before at a teleconference, in the City, County and State of New York, on May 5, 2020 at 2:00 p.m. ORDERED that personal service of a copy of this order and annexed affidavit upon the Defendant or his Counsel on or before 5:00 o'clock in the afternoon, April 30, 2020. Plaintiff must post proof of service by close of business on May 1, 2020. Defendant must file responsive papers by May 4, 2020. The parties must appear for the hearing on May 5, 2020 at 2:00 p.m. by calling (888) 363−4749, using the access code 3121171 and the security code 6350. (Signed by Judge Valerie E. Caproni on 4/29/2020) (ama) (Entered: 04/29/2020)
Set/Reset Hearings: Telephone Conference set for 5/5/2020 at 02:00 PM before Judge Valerie E. Caproni. (ama) (Entered: 04/29/2020)

04/29/2020 04/29/2020 04/30/2020 04/30/2020 04/30/2020 05/04/2020 05/04/2020 05/05/2020 05/05/2020 05/05/2020 05/06/2020
05/07/2020 05/11/2020

Set/Reset Deadlines: Show Cause Response due by 5/4/2020. (ama) (Entered: 04/29/2020)
8 LETTER addressed to Judge Valerie E. Caproni from Jessica Barlow, Esq. dated April 29, 2020 re: Service. Document filed by Disability Rights New York, James Hallenbeck, Dennis Martinez, Douglas Nguyen, Jill Wildberger. (Attachments: # 1 Proof of Service).(Barlow, Jessica) (Entered: 04/29/2020)
9 NOTICE OF APPEARANCE by Andrew Stuart Amer on behalf of Andrew M. Cuomo..(Amer, Andrew) (Entered: 04/30/2020)
10 NOTICE OF APPEARANCE by Jessica Barlow on behalf of Disability Rights New York, James Hallenbeck, Dennis Martinez, Douglas Nguyen, Jill Wildberger..(Barlow, Jessica) (Entered: 04/30/2020)
11 MEMO ENDORSEMENT on re: 8 Letter Service, filed by Disability Rights New York, Douglas Nguyen, Dennis Martinez, Jill Wildberger, James Hallenbeck. ENDORSEMENT: The service via email described in this letter is sufficient. Plaintiffs need not pursue personal service. SO ORDERED. (Signed by Judge Valerie E. Caproni on 4/30/20) (yv) (Entered: 04/30/2020)
12 DECLARATION of Tim Ruffinen in Opposition re: 4 MOTION for Temporary Restraining Order .. Document filed by Andrew M. Cuomo..(Amer, Andrew) (Entered: 05/04/2020)
13 MEMORANDUM OF LAW in Opposition re: 4 MOTION for Temporary Restraining Order . . Document filed by Andrew M. Cuomo..(Amer, Andrew) (Entered: 05/04/2020)
14 ORDER: IT IS HEREBY ORDERED THAT: 1. Plaintiffs may file a reply brief by May 8, 2020. 2. A referral to Magistrate Judge Parker for a settlement conference will be entered separately. SO ORDERED., ( Replies due by 5/8/2020.) (Signed by Judge Valerie E. Caproni on 5/05/2020) (ama) (Entered: 05/05/2020)
15 ORDER OF REFERENCE TO A MAGISTRATE JUDGE: Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for Settlement. Referred to Magistrate Judge Katharine H. Parker. SO ORDERED. (Signed by Judge Valerie E. Caproni on 5/05/2020) (ama) (Entered: 05/05/2020)
Minute Entry for proceedings held before Judge Valerie E. Caproni: Telephone Conference held on 5/5/2020. Jessica Barlow and Mark Fleedner attorneys present for plaintiff. Andrew Amer attorney for defendant present. Court Reporter Andrew Walker present. (anc) (Entered: 05/07/2020)
16 ORDER SCHEDULING SETTLEMENT CONFERENCE: This matter has been referred to me for settlement purposes. (Doc. No. 15.) A telephonic settlement conference in this matter is hereby scheduled for May 19, 2020 at 10:00 a.m. The parties shall use the Court Solutions platform. Parties must send the person with decision making authority to settle the matter to the conference. The parties are instructed to complete the Settlement Conference Summary Report and prepare pre−conference submissions in accordance with Judge Parkers Individual Rules of Practice. Pre−conference submissions must be received by the Court no later than May 12, 2020 by 5:00 p.m.; as further set forth herein. ( Telephone Conference set for 5/19/2020 at 10:00 AM before Magistrate Judge Katharine H. Parker.) (Signed by Magistrate Judge Katharine H. Parker on 5/6/2020) (mro) (Entered: 05/06/2020)
17 REPLY MEMORANDUM OF LAW in Support re: 4 MOTION for Temporary Restraining Order . . Document filed by Disability Rights New York, James Hallenbeck, Dennis Martinez, Douglas Nguyen, Jill Wildberger. (Attachments: # 1 Affidavit Supporting Declarations).(Barlow, Jessica) (Entered: 05/07/2020)
18 ORDER: WHEREAS on April 29, 2020, Plaintiffs filed a motion for a preliminary injunction (Dkt. 4); IT IS HEREBY ORDERED THAT: Plaintiffs' motion for a preliminary injunction is GRANTED. An opinion will follow. Defendant is directed to immediately implement in−frame ASL interpretation during his daily press briefings. SO ORDERED. (Signed by Judge Valerie E. Caproni on 5/11/2020) (ama) (Entered: 05/11/2020)

05/11/2020 05/12/2020 05/12/2020
05/12/2020 05/12/2020 05/12/2020

19 LETTER addressed to Judge Valerie E. Caproni from Andrew Amer dated May 11, 2020 re: Implementing Preliminary Injunction Order. Document filed by Andrew M. Cuomo..(Amer, Andrew) (Entered: 05/11/2020)
20 LETTER addressed to Judge Valerie E. Caproni from Jessica Barlow, Esq. dated May 11, 2020 re: Defendant's Timeline for Implementing the Preliminary Injunction Order. Document filed by Disability Rights New York, James Hallenbeck, Dennis Martinez, Douglas Nguyen, Jill Wildberger..(Barlow, Jessica) (Entered: 05/12/2020)
21 OPINION AND ORDER: For the foregoing reasons, Plaintiffs' motion for a preliminary injunction was GRANTED on May 11, 2020. Defendant was ordered to immediately implement in−frame ASL interpretation during his daily press briefings. If in−frame ASL translation cannot be implemented by May 13, 2020, Defendant must submit a detailed affidavit by May 13, 2020, explaining why and providing a date by which it will be implemented. The Court urges the parties to proceed with the currently−scheduled settlement conference. If the case fails to settle, the deadline for fact discovery is June 8, 2020. A pretrial conference will be held on June 12, 2020 at 10:00 a.m. SO ORDERED., ( Fact Discovery due by 6/8/2020., Pretrial Conference set for 6/12/2020 at 10:00 AM before Judge Valerie E. Caproni.) (Signed by Judge Valerie E. Caproni on 5/12/2020) (ama) (Entered: 05/12/2020)
22 TRANSCRIPT of Proceedings re: CONFERENCE held on 5/5/2020 before Judge Valerie E. Caproni. Court Reporter/Transcriber: Andrew Walker, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 6/2/2020. Redacted Transcript Deadline set for 6/12/2020. Release of Transcript Restriction set for 8/10/2020..(McGuirk, Kelly) (Entered: 05/12/2020)
23 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 5/5/2020 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days....(McGuirk, Kelly) (Entered: 05/12/2020)
24 ORDER. The Court is in receipt of Plaintiffs letter requesting that the Plaintiffs be excused from attending the telephonic settlement conference scheduled for next week due to difficulties setting up videophone relay service, among other reasons. The Court provides reasonable accommodation to litigants with disabilities and is open to utilizing any other platform that Plaintiffs believe will allow them to participate fully in the settlement conference. Alternatively, the Court will excuse Plaintiffs from attending the conference so long as they are reachable during the conference. If Plaintiffs wish to utilize a different technology, they should email Christopher Aiello at Parker_NYSDChambers@nysd.uscourts.gov and provide information about the platform. (HEREBY ORDERED by Magistrate Judge Katharine H. Parker) (Text Only Order) (Parker, Katharine) (Entered: 05/12/2020)

 
 Case 1:20-cv-03338-VEC Document 1 Filed 04/29/20 Page 1 of 14

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
DENNIS MARTINEZ, DOUGLAS NGUYEN, JAMES HALLENBECK, JILL WILDBERGER, and DISABILITY RIGHTS NEW YORK,
Plaintiffs,
-against-
ANDREW M. CUOMO, in his official capacity as Governor of New York State
Defendant.

CASE NO: 1:20-CV-03338 COMPLAINT

PRELIMINARY STATEMENT 1. Plaintiffs challenge Governor Andrew Cuomo’s practice of holding daily press briefings
regarding the COVID-19 pandemic without providing simultaneous American Sign Language (“ASL”) interpretation for television broadcast for deaf audience members. 2. The impact of the COVID-19 pandemic is being disproportionately felt by New Yorkers, with confirmed COVID-19 cases at a rate four times greater than any other state and with more than a third of all domestic COVID-19 related deaths occurring in New York. 3. Governor Cuomo’s daily briefings provide critical information about steps taken by the state and federal government to address the health crisis and recommendations on how New Yorkers can stay safe and help limit the spread of the virus. 4. The Governor has ordered schools and non-essential businesses to close. 5. The Governor has ordered people in New York to maintain a 6-foot distance when in public
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6. The Governor has ordered the public to wear masks or face coverings when taking public or private transportation or riding in for-hire vehicles.
7. Governor Cuomo’s briefings have briefed the public on important developments, and provided commentary on the government’s response at the local, state and national levels.
8. Many deaf New Yorkers cannot understand Governor Cuomo’s briefings without live televised ASL interpretation in frame.
9. According to the 2014 census, there are approximately 208,000 people in New York City who are deaf or hard of hearing.
10. Rochester, New York, is home to the United States’ largest deaf population per capita, with about 90,000 people who are deaf or hard of hearing living in the metropolitan area.
11. ASL is the primary language for the majority of deaf individuals, 12. These individuals are often unable to follow closed captioning due to imperfections in the
transcription, English being their second language, cognitive and/or processing issues, and other factors. 13. Media reports indicate that every other state in the nation has provided some form of live televised ASL interpretation in frame during its briefings.
JURISDICTION AND VENUE 14. Plaintiffs’ federal claims are made pursuant to Title II of the Americans with Disabilities
Act (“ADA”), Section 504 of the Rehabilitation Act of 1973 (“Section 504”). 15. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331
and 1343. 16. Declaratory and injunctive relief are authorized by 28 U.S.C. §§ 2201, 2202. 17. Venue is appropriate in this District pursuant to 28 U.S.C. § 1391(b)(2) as a number of
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the events and omissions complained of below occurred in this district, Defendant has an office in this district, and Plaintiff Martinez resides in New York City.
PARTIES 18. PLAINTIFF DENNIS MARTINEZ is a deaf resident of Brooklyn, New York. 19. PLAINTIFF DOUGLAS NGUYEN is a deaf resident of Albany, New York. 20. PLAINTIFF JAMES HALLENBECK is a deaf resident of Endicott, New York. 21. PLAINTIFF JILL WILDBERGER is a deaf resident of Round Lake, New York. 22. PLAINTIFF DISABILITY ADVOCATES, INC. is an independent non-profit
corporation organized under the laws of the State of New York. Disability Advocates, Inc. is authorized to conduct business under the name Disability Rights New York (“DRNY”). 23. DRNY is a Protection and Advocacy system (“P&A”), as that term is defined under the Developmental Disabilities Assistance and Bill of Rights Act (“DD Act”), 42 U.S.C. § 15041 et seq., the Protection and Advocacy for Individuals with Mental Illness Act of 1986 (“PAIMI Act”), 42 U.S.C. § 10801 et seq., and the Protection and Advocacy of Individual Rights Act (“PAIR Act”), 29 U.S.C. § 794e et seq. with offices in the State of New York located at: 25 Chapel Street, Suite 1005, Brooklyn, NY 11201; 725 Broadway, Suite 450, Albany, NY 12208; and 44 Exchange Blvd., Suite 110, Rochester, NY 14614. 24. As New York State’s Protection & Advocacy system, DRNY is specifically authorized to pursue legal, administrative, and other appropriate remedies or approaches to ensure the protection of, and advocacy for, the rights of individuals with disabilities. 42 U.S.C. § 15043(a)(2)(A) (i); N.Y. Exec. Law § 558(b).
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25. Pursuant to the authority vested in it by Congress to file claims of abuse, neglect, and rights violations on behalf of individuals with disabilities, DRNY brings claims on behalf of individuals with disabilities, including the individuals named herein who are seeking or may seek publicly available government information pertaining to the COVID-19 pandemic.
26. DEFENDANT ANDREW M. CUOMO is the governor of New York State. 27. Governor Cuomo is responsible for ensuring that New York operates its services, programs,
and activities in conformity with Title II of the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act of 1973 (“Section 504”). 28. Governor Cuomo, in his official capacity as Governor of the State of New York, is covered as a public entity under Title II of the ADA. 29. Governor Cuomo, in his official capacity, is a recipient of federal financial assistance and therefore covered under Section 504.
STATEMENT OF FACTS 30. On or about March 1, 2020, Governor Cuomo began holding daily, televised briefings
regarding the COVID-19 outbreak in New York. 31. Governor Cuomo’s briefings typically last between thirty and sixty minutes. 32. Governor Cuomo’s briefings have included key government officials from the New York
State Department of Health, New York State Division of Budget, and the Army National Guard. 33. Governor Cuomo has held briefings through New York State, including the Javits Center in New York City, and the Capitol in Albany, New York.
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34. Local and major news networks, including ABC, CBS, NBC, and Fox, have broadcasted Governor Cuomo’s briefings live to a national audience.
35. Governor Cuomo’s briefings cover a wide range of topics including the number of confirmed COVID-19 cases, the availability of testing, information about social distancing and other personal safety measures to be utilized by New Yorkers to stop the spread of the virus, and the coordination of local, state, and federal government emergency response systems.
36. New York is the only state that has never provided televised in frame ASL interpretation of its COVID-19 briefings.
37. DRNY has received a large number of complaints from deaf New Yorkers who are unable to understand Governor Cuomo’s daily briefings due to the lack of in frame televised ASL interpretation.
38. On March 24, 2020 DRNY requested that Governor Cuomo provide in frame ASL interpretation of all his briefings.
39. On March 27, 2020, Governor Cuomo began offering ASL interpretation of his live briefings only through an online broadcast on the Governor’s website.
40. On March 27, 2020, DRNY received the following response from the Governor’s office regarding the request for ASL interpreters at the live briefings: Governor Cuomo is committed to ensure that all New Yorkers are promptly and accurately informed about developments related to the COVID-19 pandemic. To that end, he has offered regular press conferences to update the public about the spread of the virus throughout the State as well as to inform the public about resources that the State is making available to assist those who have been
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impacted. Our office has already been providing closed captioning for the Governor’s press conferences; starting today real-time ASL interpretation for the Governor’s press conferences will also be available at https://www.governor.ny.gov/. (NOTE: Information about upcoming press conferences is added to the website generally 30 minutes before the start of the press conference; today’s press conference is scheduled to begin at 11:30 AM ET). Going forward, we will continue to assess efforts around accessibility for the Governor’s press conferences. 41. Closed-captioning is not provided on all television channels broadcasting the briefings and when closed captioning is provided questions from the audience are not captioned. 42. The closed-captioning frequently contains errors and omissions that make it difficult or impossible for individuals who are deaf to understand the information being provided in the briefings. 43. Governor Cuomo’s televised broadcasts do not direct deaf individuals to the ASL broadcast available on his website. 44. DRNY requested that Governor Cuomo provide simultaneous in frame ASL interpretation for all briefings broadcast on television. 45. On March 30, 2020, DRNY again wrote to Governor Cuomo to advocate for deaf New Yorkers without access to the internet who are therefore unable to benefit from the daily briefings. 46. On April 3, 2020, DRNY filed a complaint with the United States Department of Justice (“DOJ”) regarding Governor Cuomo’s failure to provide live televised ASL interpretation.
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47. On April 13, 2020, Governor Cuomo hosted a multi-state press briefing with the Governors of New Jersey, Delaware, Connecticut, Rhode Island, Pennsylvania, and Massachusetts announcing the Multi-State Council to Get People Back to Work and Restore the Economy.
48. An ASL interpreter was not available in frame during the televised broadcast of this briefing.
49. DRNY continues to receive complaints from deaf New Yorkers who are unable to access Governor Cuomo’s daily briefings.
Plaintiff Dennis Martinez 50. PLAINTIFF DENNIS MARTINEZ is a 30-year-old deaf resident of Brooklyn, New York. 51. Mr. Martinez is fluent in ASL, and it is his preferred and primary language. 52. Mr. Martinez was raised in Colombia and learned to read and write Spanish before learning some English. 53. Mr. Martinez has watched Governor Cuomo’s briefings several times since March 1, 2020. 54. Mr. Martinez is not able to understand Governor Cuomo’s live briefings due to the lack of an ASL interpreter. 55. Mr. Martinez works as a Deaf Service Advocate at the Harlem Independent Living Center. 56. Deaf community members have contacted Mr. Martinez asking for information about what Governor Cuomo said during his press briefings.
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57. Mr. Martinez is unable to answer community questions about Governor Cuomo’s briefings because he does not have access to the information himself.
58. Mr. Martinez has to seek out videos on social media platforms with ASL interpretation of the information covered by Governor Cuomo, thereby delaying timely access to information.
Plaintiff Douglas Nguyen 59. PLAINTIFF DOUGLAS NGUYEN is a 56-year-old deaf resident of Albany, New York. 60. Mr. Nguyen learned ASL as a teenager and it is his only language. 61. Mr. Nguyen does not read, write or understand English. 62. Mr. Nguyen does not use a computer and does not have access to the internet. 63. Mr. Nguyen is employed full-time at a home improvement retail store and regularly interacts with customers and co-workers. 64. Mr. Nguyen watched a number of Governor Cuomo’s daily briefings during March and April of 2020, but he cannot understand them because there is no ASL interpreter. 65. Mr. Nguyen watches Governor Cuomo’s briefings because he wants information on how to stay safe at work and in the community. 66. Mr. Nguyen is unable to access Governor Cuomo’s website because he does not use a computer.
Plaintiff James Hallenbeck 67. PLAINTIFF JAMES HALLENBECK is a 63-year-old deaf resident of Endicott, New York. 68. Mr. Hallenbeck’s primary language is ASL and he understands some English. 69. Mr. Hallenbeck has watched Governor Cuomo’s briefings on an almost daily basis.
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70. Mr. Hallenbeck attempts to read the closed captioning on television but due to his limited English and frequent errors and omissions in the captioning he understands about half of the information conveyed.
71. Mr. Hallenbeck does not own a computer and therefore cannot access the Governor’s briefings online.
72. Mr. Hallenbeck worries that he has missed important health and safety information due to his inability to understand the Governor’s briefings.
73. Mr. Hallenbeck learned of the Governor’s stay-at-home order only when his brother called him to make sure he was aware of this development.
Plaintiff Jill Wildberger 74. PLAINTIFF JILL WILDBERGER is a 23-year-old deaf resident of Round Lake, New York. 75. Ms. Wildberger is fluent in ASL, which is her preferred language. 76. Ms. Wildberger also has a learning disability. 77. Ms. Wildberger has watched Governor Cuomo’s briefings several times since March 1, 2020. 78. Ms. Wildberger was unable to understand a significant portion of the information in the briefing because the closed captioning did not appear to match what the Governor was saying and at other times there was no captioning at all. 79. Ms. Wilderberger also struggled to understand the closed captioning due to her learning disability. 80. Ms. Wildberger has access to the internet but found that the live ASL interpreter offered on the Governor’s website was frequently not available.
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81. Due to her limited access to the Governor’s briefings, Ms. Wildberger was not aware of the Governor’s executive order requiring New Yorkers to wear a facemask. FIRST CLAIM FOR RELIEF
TITLE II OF THE AMERICANS WITH DISABILITIES ACT, 42 U.S.C. § 12101, et seq. 82. DRNY incorporates by reference each and every allegation contained in the foregoing paragraphs as if specifically alleged herein. 83. Title II of the ADA states, in pertinent part: [N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or subjected to discrimination by any such entity. 42 U.S.C. § 12132. 84. A “public entity” includes state and local government, their agencies, and their instrumentalities. 42 U.S.C. § 12131(1). 85. Governor Cuomo, acting in is official capacity, at all times relevant to this action, and currently is a “public entity” within the meaning of Title II of the ADA. 86. Governor Cuomo provided and provides “services, programs [and] activities” through his office. 28 C.F.R. § 35.130. 87. The term “disability” includes physical and mental impairments that substantially limit one or more major life activities. 42 U.S.C. § 12102(2). 88. A “qualified individual with a disability” is a person “who, with or without reasonable modification to rules, policies or practices … meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” 42 U.S.C. § 12131(2).
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89. Public entities are required to take appropriate steps to ensure that communications with members of the public with disabilities are as effective as communications with others. 28 C.F.R. § 35.160(a)(1).
90. Public entities are required to provide reasonable accommodations in the form of “appropriate auxiliary aids and services” when necessary to provide individuals with disabilities an equal opportunity to participate in a service, program, or activity. 28 C.F.R. § 35.160(b)(1).
91. “Auxiliary aids and services” includes qualified interpreters. 28 C.F.R. § 35.104. 92. The necessary type of auxiliary aid or service to ensure effective communication
depends on the method of communication used by the individual with a disability; the nature, length, and complexity of the communication involved; and the context of the communication. 28 C.F.R. § 35.160(b)(2). 93. Public entities are required to give primary consideration to the requests of individuals with disabilities in determining what types of auxiliary aids and services are needed. Id. 94. Plaintiffs in seeking access to Governor Cuomo’s daily briefings are qualified individuals under the ADA. 95. Plaintiffs in their attempts to access Governor Cuomo’s televised briefings are frequently unable to understand portions of the briefing by following closed captioning, when available. 96. Plaintiffs who do not have access to the Internet are unable to access Governor Cuomo’s daily briefings with an ASL interpreter. 97. As a result of Governor Cuomo’s acts and omissions, deaf New Yorkers are unable to obtain critical health and safety information from his daily briefings.
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SECOND CLAIM FOR RELIEF SECTION 504 OF THE REHABILITATION ACT OF 1973, 29 U.S.C. § 794 98. DRNY incorporates by reference each and every allegation contained in the foregoing paragraphs as if specifically alleged herein. 99. Section 504 provides, in pertinent part that “no otherwise qualified individual with a disability in the United States… shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). 100.Governor Cuomo was, at all times relevant to this complaint, and is currently a recipient of federal financial assistance within the meaning of Section 504. 101.Governor Cuomo provided and provides a “program or activity” where “program or activity” is described as “all operations of a department, agency, special purpose district or other instrumentality of a State or of a local government.” 29. U.S. C. § 794(b)(1)(A). 102.A disability is defined as “a physical or mental impairment that substantially limits one or more major life activities of such individual.” 29 U.S.C. § 705(9)(B) citing 42 U.S.C. § 12102(1)(A). 103.Deaf New Yorkers are qualified individuals under Section 504. 104.Governor Cuomo’s practice of denying access to ASL interpretation violates Section 504 by authorizing, or failing to forbid, actions that:
a. Exclude from participation in, deny the benefits of, or otherwise subject individuals to discrimination on the basis of disability. 29 U.S.C.§ 794(a); 28 C.F.R. § 41.51(a).
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b. Deny qualified persons with a disability the opportunity to participate in or benefit from the aid, benefit, or service. 45 C.F.R. § 84.4(b)(1)(i); 28 C.F.R. § 41.51(b)(1)(i).
c. Afford qualified persons with a disability an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded to others. 45 C.F.R. §§ 84.4(b)(1)(ii), 84.52(a)(2); 28 C.F.R. § 41.51(b)(1)(ii).
d. Limit individuals with a disability in the enjoyment of rights, privileges, advantages and opportunities enjoyed by others receiving an aid, benefit, or service. 45 C.F.R. §§ 84.4(b)(1)(vii), 84.52(a)(4); 28 C.F.R. § 41.51(b)(1)(vii).
105.As a result of Governor Cuomo’s acts and omissions, deaf New Yorkers who rely on television to access his daily briefings are denied the full benefits of these briefings. PRAYER FOR RELIEF
WHEREFORE, Plaintiffs request the Court to provide relief as set forth below: 1. Issue a Temporary Restraining Order requiring Governor Cuomo to provide live televised in frame ASL interpretation at any and all briefings designed to reach residents of New York; 2. Enter preliminary and thereafter permanent injunctive relief, pursuant to 28 U.S.C. § 2202, requiring Governor Cuomo to provide live televised in frame ASL interpretation at all briefings designed to reach residents of New York; 3. Order Governor Cuomo to immediately provide live televised in frame ASL interpretation at any and all briefings designed to reach residents of New York;
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4. Enter a declaratory judgment, in accordance with 28 U.S.C. § 2201, declaring that the Governor Cuomo’s actions and failures violate the ADA and Section 504 by subjecting Plaintiffs to discrimination;
5. Retain jurisdiction over this action to ensure Governor Cuomo’s compliance with the mandates of the ADA and Section 504;
6. Award plaintiff reasonable attorney fees and costs; 7. Provide such other further relief as deemed just and proper DATE: April 29, 2020 Albany, NY DISABILITY RIGHTS NEW YORK Plaintiff By: /S/ Jessica Barlow____ JESSICA BARLOW JB2194 MARC FLIEDNER MF4201 DISABILITY RIGHTS NEW YORK Attorneys for Plaintiffs 25 Chapel Street, Suite 1005 Brooklyn, NY 11201 Phone: 518-512-4841 Fax: 518-427-6561 (not for service)
14

 
 Case 1:20-cv-03338-VEC Document 4 Filed 04/29/20 Page 1 of 2

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

DENNIS MARTINEZ, DOUGLAS NGUYEN, JAMES HALLENBECK, JILL WILDBERGER, and DISABILITY RIGHTS NEW YORK,
Plaintiffs,
-against-

CIVIL CASE NO. 1:20-CV-03338
ORDER TO SHOW CAUSE FOR PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINIGN ORDER

ANDREW CUOMO, in his official capacity as Governor of New York State,

Defendant.

Upon the declarations of Dennis Martinez, Douglas Nguyen, James Hallenbeck, and Jill Wildberger, and the affirmation of Marc Fliedner, Esq. on behalf of Disability Rights New York, sworn to the 28 day of April, 2020, and upon the copy of the complaint hereto annexed, it is
ORDERED, that the above named Defendant show cause before a motion term of this Court, at Room _____, United States Courthouse, 500 Pearl Street, in the City, County and State of New York, on ________________ ______, ______, at __________ o’clock in the ____ noon thereof, or as soon thereafter as counsel may be heard, why an order should not be issued pursuant to Rule 65 of the Federal Rules of Civil Procedure enjoining the defendant during the pendency of this action from denying Plaintiffs’ access to a live televised in-frame ASL interpretation at any and all briefings designed to reach residents of New York; and it is further
ORDERED that, sufficient reason having been shown therefor, pending the hearing of Plaintiffs’ application for a preliminary injunction, pursuant to Rule 65, Fed. R. Civ. P., the Defendant is temporarily retained and enjoined from denying Plaintiffs’ access to a live televised

Case 1:20-cv-03338-VEC Document 4 Filed 04/29/20 Page 2 of 2
in-frame ASL interpretation at any and all briefings designed to reach residents of New York; and it is further
ORDERED that security in the amount of $ _____________ be posted by the Plaintiffs prior to ________________ ______, ______, at __________ o’clock in the ____ noon of that day; and it is further
ORDERED that personal service of a copy of this order and annexed affidavit upon the Defendant or his Counsel on or before __________ o’clock in the ____ noon, _______________ ______, ______, shall be deemed good and sufficient service thereof.
DATED: New York, New York ISSUED: __________________M
_______________________________ United States District Judge

Case 1:20-cv-03338-VEC Document 4-1 Filed 04/29/20 Page 1 of 20

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

DENNIS MARTINEZ, DOUGLAS NGUYEN, JAMES HALLENBECK, JILL WILDBERGER, and DISABILITY RIGHTS NEW YORK,
Plaintiffs,
-against-

CIVIL CASE NO. 1:20-CV-03338
MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR
TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

ANDREW CUOMO, in his official capacity as Governor of New York State,

Defendant.

DISABILITY RIGHTS NEW YORK Jessica Barlow, Esq. Marc Fliedner, Esq.
25 Chapel Street, Suite 1005 Brooklyn, NY 11201 (518) 512-4841
Attorneys for Plaintiffs

Case 1:20-cv-03338-VEC Document 4-1 Filed 04/29/20 Page 2 of 20
Table of Contents Preliminary Statement..................................................................................................................... 1 Statement of Facts........................................................................................................................... 2
I. Facts Regarding the Individual Plaintiffs ........................................................................... 4 A. Dennis Martinez ........................................................................................................... 4 B. Douglas Nguyen ........................................................................................................... 5 C. James Hallenbeck ......................................................................................................... 5 D. Jill Wildberger .............................................................................................................. 6
Argument ........................................................................................................................................ 7 I. Plaintiffs have been Discriminated Against by Governor Cuomo in Violation of the ADA and Section 504........................................................................................................................... 7 A. Plaintiffs are Qualified Individuals with Disabilities ................................................... 7 B. Defendant is a Public Official Subject to Title II of the ADA ..................................... 8 C. Defendant’s Failure to Provide Plaintiffs with Effective Communication is Discrimination by Reason of their Disabilities ....................................................................... 8 II. Plaintiffs are Entitled to Injunctive Relief ........................................................................ 11 A. Plaintiffs have a Likelihood of Success on the Merits ............................................... 12 B. Plaintiffs Will Suffer Irreparable Harm if a Preliminary Injunction is not Granted... 12 C. The Balance of Hardships Weighs Heavily in Favor of Plaintiffs ............................. 14 D. The Public Interest will be Advanced by the Provision of Preliminary Relief .......... 15
Conclusion .................................................................................................................................... 16
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Cases

Table of Authorities

Andino v. Fischer, 555 F. Supp. 2d 418 (S.D.N.Y. 2008) ............................................................ 11

Bell & Howell v. Masel Supply Co., 719 F.2d 42 (2d Cir.1983) .................................................. 12

Brooklyn Ctr. for Indep. of Disabled v. Bloomberg, 980 F. Supp. 2d 588 (S.D.N.Y. 2013)...... 8, 9

Brown v. Connecticut, 2010 WL 2220580 (D. Conn. May 27, 2010) ............................................ 7

Cacchillo v. Insmed, Inc., 638 F.3d 401 (2d Cir. 2011)................................................................ 11

eBay Inc. v. Mercexchange LLC., 547 U.S. 388 (2006) ............................................................... 15

Galusha v. New York State Dep’t of Envtl. Conservaation, 27 F. Supp. 2d 117 (N.D.N.Y. 1998)

................................................................................................................................................... 12

Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738 (2d Cir. 1953)..................................... 12

Henrietta D v. Bloomberg, 331 F.3d 261 (2d Cir. 2003)................................................................ 7

Main St. Baseball, LLC v. Binghamton Mets Baseball Club, Inc., 103 F. Supp. 3d 244 (N.D.N.Y.

2015) ......................................................................................................................................... 14

Mint, Inc. v. Amad, 2011 WL 1792570 (S.D.N.Y. May 9, 2011)................................................. 12

Natera, Inc. v. Bio-Reference Labs., Inc., 2016 WL 7192106 (S.D.N.Y. Dec. 10, 2016)............ 11

People of New York ex rel. Spitzer v. Cty of Delaware, 82 F. Supp. 2d 12 (N.D.N.Y. 2000)...... 12

Sinisgallo v. Town of Islip Hous. Auth., 865 F. Supp. 2d 307 (E.D.N.Y. 2012) ............................ 8

Tennessee v. Lane, 541 U.S. 509 (2004)....................................................................................... 10

Tom Doherty Assocs. Inc. v. Saban Entertainment, Inc., 60 F.3d 27 (2d Cir. 1995).................... 12

Weinberger v. Romero–Barcelo, 456 U.S. 305 (1982)................................................................. 15

Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008) ................................................ 14, 15

Statutes

28 C.F.R. § 35.160 .................................................................................................................... 9, 10

iii

Case 1:20-cv-03338-VEC Document 4-1 Filed 04/29/20 Page 4 of 20 29 C.F.R. § 1630.2(i) ...................................................................................................................... 8 42 U.S.C. § 12102(2)(A)(B) ........................................................................................................... 8 42 U.S.C. § 12131........................................................................................................................... 7 Court Documents Fliedner Aff............................................................................................................................. 2, 3, 4 Hallenbeck Dec. ...................................................................................................................... 2, 5, 6 Martinez Dec........................................................................................................................... 2, 4, 5 Nguyen Dec. ............................................................................................................................... 2, 5 Wildberger Dec. .......................................................................................................................... 2, 6
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Preliminary Statement Since the onset of the COVID-19 pandemic in New York State, Governor Andrew Cuomo has been holding daily briefings for the public and press. These briefings provide up-todate information and statistics regarding the virus, and contain information and executive orders aimed at keeping members of the public safe and healthy. New York’s rate of infection has been vastly higher than any other state in the country, and a significant portion of domestic coronavirus-related deaths have been residents of New York. The Governor has asked most New Yorkers to stay home while ordering schools and non-essential businesses to close and hospitals to increase capacity. Governor Cuomo’s briefings have gained national attention as he emerges as a leader in fighting the pandemic and providing detailed, thoughtful commentary on the government’s response. However, there are many deaf1 New Yorkers who cannot understand these critically important briefings without live ASL interpretation. Media reports indicate that every other state in the nation has provided some form of televised ASL interpretation in its briefings. Governor Cuomo does not have in frame ASL interpretation of his briefings on broadcast television. Instead, he has only made ASL interpretation of his briefings available through a link on the governor’s official website. Governor Cuomo is failing to provide effective communication to deaf New Yorkers in violation of the Americans with Disabilities Act and Section 504. Plaintiffs’ seek a temporary restraining order and mandatory preliminary injunction to immediately require Governor Cuomo to provide an ASL interpreter in frame during televised broadcast briefings.
1 Disability Rights New York recognizes that people use many terms to describe their hearing-related disabilities. DRNY uses “deaf” in this Complaint for brevity, with no intent at offending or excluding those who prefer, require, and use other terms.

Case 1:20-cv-03338-VEC Document 4-1 Filed 04/29/20 Page 6 of 20
Statement of Facts On approximately March 1, 2020, Governor Cuomo began holding daily, televised briefings regarding the coronavirus outbreak in New York. Fliedner Aff. ¶ 3. Governor Cuomo’s briefings typically last between thirty and sixty minutes and have included key government officials from the New York State Department of Health, New York State Division of Budget, and the Army National Guard. Fliedner Aff. ¶ 4. Local and major news networks, including ABC, CBS, NBC, Fox, and their local affiliates, have broadcasted Governor Cuomo’s briefings both live and on delay to a national audience. Fliedner Aff. ¶ 7. Governor Cuomo’s briefings cover a wide range of topics including the number of confirmed COVID-19 cases, the availability of testing and personal protective equipment (“PPE”), and the coordination of local, state and federal government emergency response systems. Fliedner Aff. ¶ 6. DRNY has received a large number of complaints from deaf New Yorkers who are unable to follow Governor Cuomo’s daily briefings due to the lack of televised ASL interpretation. Fliedner Aff. ¶ 10. For these individuals, ASL is their first language, and they do not communicate regularly or effectively through written English. Martinez Dec. ¶ 3; Nguyen Dec. ¶ 4; Hallenbeck Dec. ¶¶ 2, 3; Wildberger Dec. ¶ 2. Therefore, even when closed-captioning is provided (which it is often not), individuals who solely or primarily utilize ASL cannot effectively receive Governor Cuomo’s messages. Martinez Dec. ¶ 7; Nguyen Dec. ¶ 4; Hallenbeck Dec. ¶ 5; Wildberger Dec. ¶ 5. Furthermore, closed-captioning is not provided on all channels broadcasting the briefings and even when closed captioning is provided questions from the audience are not captioned. Fliedner Aff. ¶ 8. The closed-captioning frequently contains errors and omissions that make it difficult or impossible for individuals who are deaf to understand the briefings. Fliedner Aff. ¶ 9.
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On March 24, 2020, DRNY requested that Governor Cuomo provide live ASL
interpretation for all of his briefings. Fliedner Aff. ¶ 11, Exhibit A. On March 27, 2020,
Governor Cuomo began offering ASL interpretation of his live briefings only through an online
broadcast available only on the Governor’s website (https://www.governor.ny.gov/), and stated
the following via email to DRNY:
Governor Cuomo is committed to ensure that all New Yorkers are promptly and accurately informed about developments related to the COVID-19 pandemic. To that end, he has offered regular press conferences to update the public about the spread of the virus throughout the State as well as to inform the public about resources that the State is making available to assist those who have been impacted. Our office has already been providing closed captioning for the Governor’s press conferences; starting today real-time ASL interpretation for the Governor’s press conferences will also be available at https://www.governor.ny.gov/. (NOTE: Information about upcoming press conferences is added to the website generally 30 minutes before the start of the press conference; today’s press conference is scheduled to begin at 11:30 AM ET). Going forward, we will continue to assess efforts around accessibility for the Governor’s press conferences.
Fliedner Aff. ¶ 12, Exhibit B (emphasis in original).
Governor Cuomo’s televised broadcasts do not direct deaf individuals to the ASL
broadcast available on his website. Fliedner Aff. ¶ 13. Additionally, the ASL stream is only
available when the briefing is live, and requires that a person have internet access. Fliedner Aff.
¶ 13.
On March 30, 2020, DRNY requested that Governor Cuomo provide in-frame ASL
interpretation for all briefings broadcast on television because not every deaf person has access
to the internet. Fliedner Aff. ¶¶ 14-15, Exhibit C. On April 2, 2020, DRNY made a last attempt
to seek a response from Governor Cuomo on the lack of televised ASL interpreters but Governor
Cuomo did not substantively respond to either the March 30 or April 2 requests. Fliedner Aff ¶
16.
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On April 3, 2020, DRNY filed an administrative complaint with the United States Department of Justice regarding Governor Cuomo’s failure to provide an ASL interpreter during his briefings. Fliedner Aff. ¶ 17, Exhibit D.
On April 13, 2020, Governor Cuomo hosted a multi-state press briefing with the Governors of New Jersey, Delaware, Connecticut, Rhode Island, Pennsylvania, and Massachusetts announcing the Multi-State Council to Get People Back to Work and Restore the Economy. Fliedner Aff. ¶ 18. During this conference, the other Governors participated via telephone audio, while Governor Cuomo was shown with both picture and audio. Fliedner Aff. ¶ 19. There was no ASL interpreter in frame when Governor Cuomo or the other state’s Governors were speaking. Fliedner Aff. ¶ 20. Those deaf residents who rely on ASL in each of the seven participating states were unable to understand the briefing.
DRNY continues to receive complaints from Deaf New Yorkers who are unable to access Governor Cuomo’s daily briefings. Fliedner Aff. ¶ 21.
I. Facts Regarding the Individual Plaintiffs A. Dennis Martinez
Dennis Martinez is a resident of Brooklyn, NY. Martinez Dec. ¶ 1. Mr. Martinez is deaf, and is fluent in ASL. Martinez Dec. ¶ 3. Mr. Martinez was raised in Colombia, and learned to read and write Spanish before being exposed to some English. Martinez Dec. ¶ 2. Mr. Martinez has watched Governor Cuomo’s briefings several times since March 1, 2020, but was not able to understand the live briefings due to the lack of ASL interpreter. Martinez Dec. ¶¶ 6, 7.
Mr. Martinez works as a Deaf Service Advocate at the Harlem Independent Living Center. Martinez Dec. ¶ 4. Deaf community members have contacted Mr. Martinez asking for information about what Governor Cuomo said during press briefings. Martinez Dec. ¶ 8. Mr.
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Martinez is unable to answer community questions about Governor Cuomo’s briefings because he does not have access to the information himself. Martinez Dec. ¶ 8. Mr. Martinez has to seek out videos on social media platforms with ASL interpretation of the information covered by Governor Cuomo, thereby delaying timely access to information. Martinez Dec. ¶ 7.
B. Douglas Nguyen Douglas Nguyen is a resident of Albany, New York. Nguyen Dec. ¶ 1. Mr. Nguyen is deaf, and ASL is his first language. Nguyen Dec. ¶¶ 2, 3. Mr. Nguyen was born and raised in Vietnam, and learned ASL when he moved to the United States in his late teens. Nguyen Dec. ¶ 3. Mr. Nguyen cannot read or write in English. Nguyen Dec. ¶ 4. Because of this, closedcaptioning is indecipherable to him, and he requires ASL interpretation to understand spoken communications. Nguyen Dec. ¶ 4. Mr. Nguyen is employed full-time at a home improvement retail store and regularly interacts with customers. Nguyen Dec. ¶ 6. Mr. Nguyen tries to watch Governor Cuomo’s briefings because he wants information on how to stay safe at work and in the community as an essential worker. Nguyen Dec. ¶¶ 7, 8. Mr. Nguyen has watched a number of Governor Cuomo’s briefings during March and April 2020. Nguyen Dec. ¶ 7. Mr. Nguyen has been unable to understand the majority of what is said because there is no in-frame ASL interpreter, and he cannot read closed-captioning. Nguyen Dec. ¶ 7. Mr. Nguyen cannot access Governor Cuomo’s website as he does not use a computer. Nguyen Dec. ¶ 5.
C. James Hallenbeck James Hallenbeck is a resident of Endicott, NY. Hallenbeck Dec. ¶ 1. Mr. Hallenbeck is deaf, and his primary language is ASL though he does understands some English. Hallenbeck Dec. ¶¶ 2, 3. Since March 1, 2020, Mr. Hallenbeck has watched Governor Cuomo’s briefings on
5

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an almost daily basis since. Hallenbeck Dec. ¶ 4. Mr. Hallenbeck attempts to read the close captioning on the television. Hallenbeck Dec. ¶ 5. However, due to his limited English, and the frequent errors and omissions in the captioning, he understands about half of the information conveyed. Hallenbeck Dec. ¶ 5.
Mr. Hallenbeck does not own a computer. Hallenbeck Dec. ¶ 6. Mr. Hallenbeck worries that he has missed important health and safety information due to his inability to understand the Governor’s press briefings, and only learned of the Governor’s stay-at-home order only after his brother called him to make sure he was aware of the development. Hallenbeck Dec. ¶¶ 7, 8.
D. Jill Wildberger Jill Wildberger is a resident of Round Lake, New York. Wildberger Dec. ¶ 1. Ms. Wildberger is deaf and is fluent in ASL, which is her primary language. Wildberger Dec. ¶ 2. Ms. Wildberger also has a learning disability, which makes reading and understanding written English especially challenging for her. Wildberger Dec. ¶ 3. Ms. Wildberger has attempted to understand Governor Cuomo’s coronavirus press briefing of the day either through her iPhone or on her television. Wildberger Dec. ¶ 5. She was unable to comprehend the information because the closed captioning was not contemporaneous with the speaker at the time or was nonexistent, making it impossible for her to follow. Wildberger Dec. ¶ 5. Every time she has tried to access the streaming ASL interpreter feed, it has been unavailable for her to view. Wildberger Dec. ¶ 6. Ms. Wildberger was unaware of the Executive Order requiring New Yorkers to wear masks in public. Wildberger Dec. ¶ 7.
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Argument I. Plaintiffs have been Discriminated Against by Governor Cuomo in Violation of the
ADA and Section 504 Plaintiffs have been deprived access to the services of the Governor’s daily press briefings because there is no live ASL interpreter in frame. In order to establish a claim of discrimination under Title II of the ADA,2 Plaintiffs must demonstrate that (1) they is a “qualified individuals” with a disabilities; (2) that the Defendant is subject to the ADA; and (3) that Plaintiffs were denied the opportunity to participate equally in or benefit equally from Defendants’ services, programs or activities, by reason of their disability. See Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003).
A. Plaintiffs are Qualified Individuals with Disabilities The term qualified individual with a disability means “an individual with a disability, who with or without reasonable modifications to rules, policies or practices…meets the essential eligibility requirements for the…participation in programs or activities provided by a public entity.” 42 U.S.C. § 12131(2). Plaintiffs are individuals with disabilities who, with the reasonable accommodation of an interpreter, would be able to equally participate in and benefit from Governor Cuomo’s daily press briefings. It is without question that Plaintiffs are individuals with disabilities. As stated above, each of the individual Plaintiffs is deaf. Under the ADA, an individual has a disability if he has a “physical or mental impairment that substantially limits one or more of the major life activities
2 “Claims of disability discrimination under the ADA are held to essentially the identical standard as is applied under Section 504 of the Rehabilitation Act.” Brown v. Connecticut, 2010 WL 2220580, at *20 (D. Conn. May 27, 2010) (citing Henrietta D., 331 F.3d at 272). Plaintiffs’ claims are brought pursuant to both Title II of the ADA and Section 504. In the interest of brevity Plaintiffs present their arguments using reference to the ADA with the understanding that the standard is the same under either statute.
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of such individual.” 42 U.S.C. § 12102(2)(A)(B). Hearing is a major life activity. See 29 C.F.R. § 1630.2(i)(1)(i).
Plaintiffs are members of the target audience for Governor Cuomo’s press briefings on COVID-19, and therefore clearly “meet the essential eligibility requirements” to benefit from this government service. See Brooklyn Ctr. for Indep. of Disabled v. Bloomberg, 980 F. Supp. 2d 588, 640 (S.D.N.Y. 2013).
B. Defendant is a Public Official Subject to Title II of the ADA Governor Cuomo is a “public entity” under Title II when sued in his official capacity. Henrietta D., 331 F.3d at 288 (holding a state officer sued in his official capacity, under the doctrine of Ex parte Young, is a “public entity” subject to liability under the ADA).
C. Defendant’s Failure to Provide Plaintiffs with Effective Communication is Discrimination by Reason of their Disabilities
Plaintiffs need an ASL interpreter in order to effectively participate in Governor Cuomo’s press briefings because they are deaf. Without this reasonable accommodation, Plaintiffs are not receiving effective communication, and therefore cannot access the briefings because they cannot understand the critical information covered.
A plaintiff establishes the requisite causal connection for a claim under the ADA when he shows that but for his disability he would not have needed a reasonable accommodation and therefore would not have been denied the benefit or access at issue. See Sinisgallo v. Town of Islip Hous. Auth., 865 F. Supp. 2d 307, 340 (E.D.N.Y. 2012) (citing Henrietta D., 331 F.3d at 277) (emphasis added). In the instant matter, but for their hearing impairments, Plaintiffs would not be facing discrimination.
When examining a claim regarding access to services under the ADA, a Court must focus on whether people with disabilities can actually access the benefits and services they are entitled
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to. See Brooklyn Ctr. for Indep. of Disabled, 980 F. Supp. 2d at 640 (quoting Henrietta D., 331
F.3d at 271) (“[T]he relevant inquiry asks not whether the benefits available to persons with
disabilities and to others are actually equal, but whether those with disabilities are as a practical
matter able to access benefits to which they are legally entitled.”). In addition, the access
provided must be “meaningful access,” which often requires reasonable accommodation. See id.
The applicable regulations are clear that public entities must provide individuals with
effective communication under the ADA:
(a)(1) A public entity shall take appropriate steps to ensure that communications with applicants, participants, members of the public, and companions with disabilities are as effective as communications with others.
(b)(1) A public entity shall furnish appropriate auxiliary aids and services where necessary to afford individuals with disabilities, including applicants, participants, companions, and members of the public, an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity of a public entity.
(b)(2) The type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place. In determining what types of auxiliary aids and services are necessary, a public entity shall give primary consideration to the requests of individuals with disabilities. In order to be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability.
28 C.F.R. § 35.160 (emphasis added).
The purpose of the effective communication requirement is to ensure that the person with
a vision, hearing, or speech disability can communicate with and receive information from a
covered entity. As stated above, ASL is the first language of Plaintiffs. Plaintiffs do not
communicate using English, and do not understand written English as they do ASL. Plaintiffs
cannot effectively use alternative means of receiving information such as closed captioning or
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reading news articles. Therefore, without an ASL interpreter in frame during briefings with Governor Cuomo, Plaintiffs cannot have meaningful access to his public messages.
Governor Cuomo has provided an ASL stream of his briefings online. However, all people with disabilities do not have internet access. “Recognizing that failure to accommodate persons with disabilities will often have the same practical effect as outright exclusion, Congress required the States to take reasonable measures to remove ... barriers to accessibility.” Tennessee v. Lane, 541 U.S. 509, 511 (2004). The stream is only available through the Governor’s website (https://www.governor.ny.gov/) and only airs when the press briefing is live. In order to access the ASL stream, an individual needs to know what time that day Governor Cuomo was going live3 (this varies daily and is not announced until approximately 15-20 minutes prior to the briefing starting), needs to be aware that the Governor’s website offers an ASL stream of the briefing, and needs to have internet access. In the alternative, a hearing person only needs to turn on their TV or visit a myriad of new stations’ web pages where the briefings as televised are available both live and on repeat multiple times throughout the day.
The ADA’s implementing regulations require that Governor Cuomo “shall take appropriate steps to ensure that communications with…members of the public…are as effective as communications with others…shall furnish appropriate auxiliary aids and services…[and] shall give primary consideration to the requests of individuals with disabilities.” 28 C.F.R. § 35.160. Plaintiffs cannot receive effective communication from Governor Cuomo without the provision of an ASL interpreter.
But for their disabilities, Plaintiffs would not need a reasonable accommodation in order to access to Governor Cuomo’s briefings. Governor Cuomo’s refusal to provide an ASL
3 Governor Cuomo’s press briefings are often replayed by news outlets in other time slots or on their social media. These replays do not include the ASL stream.
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interpreter in frame during his televised briefings deprives Plaintiffs of meaningful access to the messaging coming from his office, and constitutes a failure to provide effective communication under the ADA.
II. Plaintiffs are Entitled to Injunctive Relief Plaintiffs are entitled to injunctive relief. “A plaintiff seeking a temporary restraining
order must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Natera, Inc. v. Bio-Reference Labs., Inc., 2016 WL 7192106, at *2 (S.D.N.Y. Dec. 10, 2016) (internal quotation marks, citation, and alteration omitted). “It is well established that in this Circuit the standard for an entry of a TRO is the same as for a preliminary injunction.” Andino v. Fischer, 555 F. Supp. 2d 418, 419 (S.D.N.Y. 2008) (collecting cases).
Plaintiffs seek a mandatory preliminary injunction that alters the status quo by commanding that Governor Cuomo provide an ASL interpreter in frame during his televised briefings. See Cacchillo v. Insmed, Inc., 638 F.3d 401, 406 (2d Cir. 2011). A mandatory preliminary injunction may issue only with a clear showing that Plaintiffs are entitled to the relief they request, and with the showing that the damage they will suffer is severe. See id. (“A mandatory preliminary injunction should issue only upon a clear showing that the moving party is entitled to the relief requested, or where extreme or very serious damage will result from a denial of preliminary relief.”).
As set forth below, Plaintiffs demonstrate a likelihood of success on the merits, and have already suffered irreparable harm.
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A. Plaintiffs have a Likelihood of Success on the Merits Plaintiffs are entitled to effective communication under Title II of the ADA. Governor Cuomo’s failure to provide ASL interpreters in frame at his televised press briefings constitutes illegal discrimination. Therefore, Plaintiffs are likely to succeed on the merits of their claims. Plaintiffs need only show that there is a fair probability that they will prevail in order to obtain a temporary restraining order. See Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 740 (2d Cir. 1953) (“To justify a temporary injunction it is not necessary that the plaintiff's right to a final decision, after a trial, be absolutely certain, wholly without doubt; if the other elements are present (i.e., the balance of hardships tips decidedly toward plaintiff), it will ordinarily be enough that the plaintiff has raised questions going to the merits so serious, substantial, difficult and doubtful, as to make them a fair ground for litigation and thus for more deliberate investigation.”).
B. Plaintiffs Will Suffer Irreparable Harm if a Preliminary Injunction is not Granted
The showing of irreparable harm is the “single most important prerequisite for the issuance of a preliminary injunction.” People of New York ex rel. Spitzer v. Cty of Delaware, 82 F. Supp. 2d 12, 16 (N.D.N.Y. 2000) (quoting Bell & Howell v. Masel Supply Co., 719 F.2d 42, 45 (2d Cir. 1983)). “Irreparable harm is an injury that is not remote or speculative but actual and imminent, and ‘for which a monetary award cannot be adequate compensation.’” Galusha v. New York State Dep’t of Envtl. Conservaation, 27 F. Supp. 2d 117, 122 (N.D.N.Y. 1998) (quoting Tom Doherty Assocs. Inc. v. Saban Entertainment, Inc., 60 F.3d 27, 37 (2d Cir. 1995)). The “court must actually consider the injury the plaintiff will suffer if he or she loses on the preliminary injunction but ultimately prevails on the merits, paying particular attention to
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whether the remedies available at law, such as monetary damages, are inadequate to compensate for that injury.” Mint, Inc. v. Amad, 2011 WL 1792570, at *1 (S.D.N.Y. May 9, 2011).
The harm to Plaintiffs absent the requested relief is both imminent and irreparable. Every day, and sometimes multiple times a day, Governor Cuomo goes live to speak to the people of New York State about a vast amount of critical information. Governor Cuomo shares statistics regarding hospitalizations, intubations, and deaths. He discusses trends in infection rates and the spread of the virus. Governor Cuomo shares information about fighting COVID-19, including best practices for keeping yourself and your family safe, as well as new Executive Orders aimed at keeping all New Yorkers safe.
Without an ASL interpreter in frame with Governor Cuomo during these briefings an entire facet of New Yorkers are without equal access to this critical information which is rapidly changing. Individuals who rely on ASL communication may face consequences if they attempt to utilize areas like parks or non-essential businesses after the public is banned from doing so. People like Plaintiffs may be unaware of mandatory steps they must take, such as covering their face in public, because they were not able to learn of the updated policy from Governor Cuomo’s briefing.
Every day Governor Cuomo emphasizes the importance of the steps New York is taking as a whole, and repeatedly states that “we are all in this together.” Plaintiffs cannot be part of that “we” without access to the message Governor Cuomo is sharing. Individuals who rely on ASL are unable to do their part to further the collective good without access to Governor Cuomo’s briefings. There is no remedy at law that can turn back time and give Plaintiffs the daily comprehensive updates they needed during this nationwide crisis. There is no remedy at law that
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could compensate Plaintiffs if they or their families are unnecessarily exposed to the virus because they lacked critical information about how New Yorkers can best stay safe.
C. The Balance of Hardships Weighs Heavily in Favor of Plaintiffs “When confronted with a motion for a preliminary injunction, a court ‘must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.’” Main St. Baseball, LLC v. Binghamton Mets Baseball Club, Inc., 103 F. Supp. 3d 244, 262 (N.D.N.Y. 2015) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008)). “Plaintiffs must establish that the ‘balance of hardships tips in their favor regardless of the likelihood of success.’” Main St. Baseball, LLC, 103 F. Supp. 3d at 262 (quoting Salinger, 607 F.3d at 79–80). There is no hardship on Governor Cuomo if an ASL interpreter is in frame with him during the daily press briefings. An ASL interpreter has already been hired and is translating the briefings, but that interpreter is not accessible to individuals with disabilities in a meaningful way. In contrast, the failure of Governor Cuomo to provide an ASL interpreter in frame causes immense hardship on Plaintiffs. People need to take multiple extra steps to access the live ASL stream of the press briefings, and many do not even know this stream is available or have internet access. For those who do not have the skill or technology to access this online stream, the hardship is insurmountable. The only impact on Governor Cuomo in granting Plaintiffs’ motion is a wider framed shot. The effect on Plaintiffs in denying their motion is substantial and irreparable as the lack of access to critical information during the current public health crisis could be life-threatening.
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D. The Public Interest will be Advanced by the Provision of Preliminary Relief During any crisis it is imperative that all members of the public have access to up-to-date information from governing entities. The message coming from Governor Cuomo and all levels of government is consistently that all people need to work together in order to ensure that efforts like social distancing are as effective as possible in order to best serve the interest of all New Yorkers. Plaintiffs’ requested injunction furthers that interest. Without access to information through an ASL interpreter, an entire section of the New York public is without the necessary knowledge to act in a way that furthers the public interest. Without effective social distancing and adherence to orders coming from Governor Cuomo’s office, New York may face an increasingly overwhelmed hospital and medical system which would inevitably lead to the deaths of countless more New Yorkers. Individuals who utilize ASL cannot follow executive orders or health department recommendations if they are not aware of them. Without effective communication through the provision of an in frame ASL interpreter during briefings by Governor Cuomo, the Deaf community cannot ensure that they act in the public’s interest, and may unknowingly endanger themselves or others. “In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction.” Winter, 555 U.S. at 24 (quoting Weinberger v. Romero–Barcelo, 456 U.S. 305, 312 (1982)). “[T]he court must ensure that the ‘public interest would not be disserved’ by the issuance of a preliminary injunction.” Salinger, 607 F.3d at 80 (quoting eBay Inc. v. Mercexchange LLC., 547 U.S. 388, 391 (2006)). If Plaintiffs’ requested relief is granted there will be no negative impact on the public interest, as the public only benefits from more members having access to critical information.
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Conclusion For all the above reasons, this Court should issue a temporary restraining order and subsequent preliminary injunction granting Plaintiffs’ request for the reasonable accommodation of an in-frame ASL interpreter during Governor Cuomo’s daily briefings.
Dated: April 29, 2020 Brooklyn, New York By: /S/ Jessica Barlow____ JESSICA BARLOW JB2194 MARC FLIEDNER MF4201 DISABILITY RIGHTS NEW YORK Attorneys for Plaintiffs 25 Chapel Street, Suite 1005 Brooklyn, NY 11201 Phone: 518-512-4841 Fax: 518-427-6561 (not for service)
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
DENNIS MARTINEZ, DOUGLAS NGUYEN, JAMES HALLENBECK, JILL WILDBERGER, and DISABILITY RIGHTS NEW YORK,
Plaintiffs,
-against-
ANDREW M. CUOMO, in his official capacity as Governor of New York State
Defendant.

CASE NO: 1:20-CV-03338 COMPLAINT

PRELIMINARY STATEMENT 1. Plaintiffs challenge Governor Andrew Cuomo’s practice of holding daily press briefings
regarding the COVID-19 pandemic without providing simultaneous American Sign Language (“ASL”) interpretation for television broadcast for deaf audience members. 2. The impact of the COVID-19 pandemic is being disproportionately felt by New Yorkers, with confirmed COVID-19 cases at a rate four times greater than any other state and with more than a third of all domestic COVID-19 related deaths occurring in New York. 3. Governor Cuomo’s daily briefings provide critical information about steps taken by the state and federal government to address the health crisis and recommendations on how New Yorkers can stay safe and help limit the spread of the virus. 4. The Governor has ordered schools and non-essential businesses to close. 5. The Governor has ordered people in New York to maintain a 6-foot distance when in public
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6. The Governor has ordered the public to wear masks or face coverings when taking public or private transportation or riding in for-hire vehicles.
7. Governor Cuomo’s briefings have briefed the public on important developments, and provided commentary on the government’s response at the local, state and national levels.
8. Many deaf New Yorkers cannot understand Governor Cuomo’s briefings without live televised ASL interpretation in frame.
9. According to the 2014 census, there are approximately 208,000 people in New York City who are deaf or hard of hearing.
10. Rochester, New York, is home to the United States’ largest deaf population per capita, with about 90,000 people who are deaf or hard of hearing living in the metropolitan area.
11. ASL is the primary language for the majority of deaf individuals, 12. These individuals are often unable to follow closed captioning due to imperfections in the
transcription, English being their second language, cognitive and/or processing issues, and other factors. 13. Media reports indicate that every other state in the nation has provided some form of live televised ASL interpretation in frame during its briefings.
JURISDICTION AND VENUE 14. Plaintiffs’ federal claims are made pursuant to Title II of the Americans with Disabilities
Act (“ADA”), Section 504 of the Rehabilitation Act of 1973 (“Section 504”). 15. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331
and 1343. 16. Declaratory and injunctive relief are authorized by 28 U.S.C. §§ 2201, 2202. 17. Venue is appropriate in this District pursuant to 28 U.S.C. § 1391(b)(2) as a number of
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the events and omissions complained of below occurred in this district, Defendant has an office in this district, and Plaintiff Martinez resides in New York City.
PARTIES 18. PLAINTIFF DENNIS MARTINEZ is a deaf resident of Brooklyn, New York. 19. PLAINTIFF DOUGLAS NGUYEN is a deaf resident of Albany, New York. 20. PLAINTIFF JAMES HALLENBECK is a deaf resident of Endicott, New York. 21. PLAINTIFF JILL WILDBERGER is a deaf resident of Round Lake, New York. 22. PLAINTIFF DISABILITY ADVOCATES, INC. is an independent non-profit
corporation organized under the laws of the State of New York. Disability Advocates, Inc. is authorized to conduct business under the name Disability Rights New York (“DRNY”). 23. DRNY is a Protection and Advocacy system (“P&A”), as that term is defined under the Developmental Disabilities Assistance and Bill of Rights Act (“DD Act”), 42 U.S.C. § 15041 et seq., the Protection and Advocacy for Individuals with Mental Illness Act of 1986 (“PAIMI Act”), 42 U.S.C. § 10801 et seq., and the Protection and Advocacy of Individual Rights Act (“PAIR Act”), 29 U.S.C. § 794e et seq. with offices in the State of New York located at: 25 Chapel Street, Suite 1005, Brooklyn, NY 11201; 725 Broadway, Suite 450, Albany, NY 12208; and 44 Exchange Blvd., Suite 110, Rochester, NY 14614. 24. As New York State’s Protection & Advocacy system, DRNY is specifically authorized to pursue legal, administrative, and other appropriate remedies or approaches to ensure the protection of, and advocacy for, the rights of individuals with disabilities. 42 U.S.C. § 15043(a)(2)(A) (i); N.Y. Exec. Law § 558(b).
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25. Pursuant to the authority vested in it by Congress to file claims of abuse, neglect, and rights violations on behalf of individuals with disabilities, DRNY brings claims on behalf of individuals with disabilities, including the individuals named herein who are seeking or may seek publicly available government information pertaining to the COVID-19 pandemic.
26. DEFENDANT ANDREW M. CUOMO is the governor of New York State. 27. Governor Cuomo is responsible for ensuring that New York operates its services, programs,
and activities in conformity with Title II of the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act of 1973 (“Section 504”). 28. Governor Cuomo, in his official capacity as Governor of the State of New York, is covered as a public entity under Title II of the ADA. 29. Governor Cuomo, in his official capacity, is a recipient of federal financial assistance and therefore covered under Section 504.
STATEMENT OF FACTS 30. On or about March 1, 2020, Governor Cuomo began holding daily, televised briefings
regarding the COVID-19 outbreak in New York. 31. Governor Cuomo’s briefings typically last between thirty and sixty minutes. 32. Governor Cuomo’s briefings have included key government officials from the New York
State Department of Health, New York State Division of Budget, and the Army National Guard. 33. Governor Cuomo has held briefings through New York State, including the Javits Center in New York City, and the Capitol in Albany, New York.
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34. Local and major news networks, including ABC, CBS, NBC, and Fox, have broadcasted Governor Cuomo’s briefings live to a national audience.
35. Governor Cuomo’s briefings cover a wide range of topics including the number of confirmed COVID-19 cases, the availability of testing, information about social distancing and other personal safety measures to be utilized by New Yorkers to stop the spread of the virus, and the coordination of local, state, and federal government emergency response systems.
36. New York is the only state that has never provided televised in frame ASL interpretation of its COVID-19 briefings.
37. DRNY has received a large number of complaints from deaf New Yorkers who are unable to understand Governor Cuomo’s daily briefings due to the lack of in frame televised ASL interpretation.
38. On March 24, 2020 DRNY requested that Governor Cuomo provide in frame ASL interpretation of all his briefings.
39. On March 27, 2020, Governor Cuomo began offering ASL interpretation of his live briefings only through an online broadcast on the Governor’s website.
40. On March 27, 2020, DRNY received the following response from the Governor’s office regarding the request for ASL interpreters at the live briefings: Governor Cuomo is committed to ensure that all New Yorkers are promptly and accurately informed about developments related to the COVID-19 pandemic. To that end, he has offered regular press conferences to update the public about the spread of the virus throughout the State as well as to inform the public about resources that the State is making available to assist those who have been
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impacted. Our office has already been providing closed captioning for the Governor’s press conferences; starting today real-time ASL interpretation for the Governor’s press conferences will also be available at https://www.governor.ny.gov/. (NOTE: Information about upcoming press conferences is added to the website generally 30 minutes before the start of the press conference; today’s press conference is scheduled to begin at 11:30 AM ET). Going forward, we will continue to assess efforts around accessibility for the Governor’s press conferences. 41. Closed-captioning is not provided on all television channels broadcasting the briefings and when closed captioning is provided questions from the audience are not captioned. 42. The closed-captioning frequently contains errors and omissions that make it difficult or impossible for individuals who are deaf to understand the information being provided in the briefings. 43. Governor Cuomo’s televised broadcasts do not direct deaf individuals to the ASL broadcast available on his website. 44. DRNY requested that Governor Cuomo provide simultaneous in frame ASL interpretation for all briefings broadcast on television. 45. On March 30, 2020, DRNY again wrote to Governor Cuomo to advocate for deaf New Yorkers without access to the internet who are therefore unable to benefit from the daily briefings. 46. On April 3, 2020, DRNY filed a complaint with the United States Department of Justice (“DOJ”) regarding Governor Cuomo’s failure to provide live televised ASL interpretation.
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47. On April 13, 2020, Governor Cuomo hosted a multi-state press briefing with the Governors of New Jersey, Delaware, Connecticut, Rhode Island, Pennsylvania, and Massachusetts announcing the Multi-State Council to Get People Back to Work and Restore the Economy.
48. An ASL interpreter was not available in frame during the televised broadcast of this briefing.
49. DRNY continues to receive complaints from deaf New Yorkers who are unable to access Governor Cuomo’s daily briefings.
Plaintiff Dennis Martinez 50. PLAINTIFF DENNIS MARTINEZ is a 30-year-old deaf resident of Brooklyn, New York. 51. Mr. Martinez is fluent in ASL, and it is his preferred and primary language. 52. Mr. Martinez was raised in Colombia and learned to read and write Spanish before learning some English. 53. Mr. Martinez has watched Governor Cuomo’s briefings several times since March 1, 2020. 54. Mr. Martinez is not able to understand Governor Cuomo’s live briefings due to the lack of an ASL interpreter. 55. Mr. Martinez works as a Deaf Service Advocate at the Harlem Independent Living Center. 56. Deaf community members have contacted Mr. Martinez asking for information about what Governor Cuomo said during his press briefings.
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57. Mr. Martinez is unable to answer community questions about Governor Cuomo’s briefings because he does not have access to the information himself.
58. Mr. Martinez has to seek out videos on social media platforms with ASL interpretation of the information covered by Governor Cuomo, thereby delaying timely access to information.
Plaintiff Douglas Nguyen 59. PLAINTIFF DOUGLAS NGUYEN is a 56-year-old deaf resident of Albany, New York. 60. Mr. Nguyen learned ASL as a teenager and it is his only language. 61. Mr. Nguyen does not read, write or understand English. 62. Mr. Nguyen does not use a computer and does not have access to the internet. 63. Mr. Nguyen is employed full-time at a home improvement retail store and regularly interacts with customers and co-workers. 64. Mr. Nguyen watched a number of Governor Cuomo’s daily briefings during March and April of 2020, but he cannot understand them because there is no ASL interpreter. 65. Mr. Nguyen watches Governor Cuomo’s briefings because he wants information on how to stay safe at work and in the community. 66. Mr. Nguyen is unable to access Governor Cuomo’s website because he does not use a computer.
Plaintiff James Hallenbeck 67. PLAINTIFF JAMES HALLENBECK is a 63-year-old deaf resident of Endicott, New York. 68. Mr. Hallenbeck’s primary language is ASL and he understands some English. 69. Mr. Hallenbeck has watched Governor Cuomo’s briefings on an almost daily basis.
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70. Mr. Hallenbeck attempts to read the closed captioning on television but due to his limited English and frequent errors and omissions in the captioning he understands about half of the information conveyed.
71. Mr. Hallenbeck does not own a computer and therefore cannot access the Governor’s briefings online.
72. Mr. Hallenbeck worries that he has missed important health and safety information due to his inability to understand the Governor’s briefings.
73. Mr. Hallenbeck learned of the Governor’s stay-at-home order only when his brother called him to make sure he was aware of this development.
Plaintiff Jill Wildberger 74. PLAINTIFF JILL WILDBERGER is a 23-year-old deaf resident of Round Lake, New York. 75. Ms. Wildberger is fluent in ASL, which is her preferred language. 76. Ms. Wildberger also has a learning disability. 77. Ms. Wildberger has watched Governor Cuomo’s briefings several times since March 1, 2020. 78. Ms. Wildberger was unable to understand a significant portion of the information in the briefing because the closed captioning did not appear to match what the Governor was saying and at other times there was no captioning at all. 79. Ms. Wilderberger also struggled to understand the closed captioning due to her learning disability. 80. Ms. Wildberger has access to the internet but found that the live ASL interpreter offered on the Governor’s website was frequently not available.
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81. Due to her limited access to the Governor’s briefings, Ms. Wildberger was not aware of the Governor’s executive order requiring New Yorkers to wear a facemask. FIRST CLAIM FOR RELIEF
TITLE II OF THE AMERICANS WITH DISABILITIES ACT, 42 U.S.C. § 12101, et seq. 82. DRNY incorporates by reference each and every allegation contained in the foregoing paragraphs as if specifically alleged herein. 83. Title II of the ADA states, in pertinent part: [N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or subjected to discrimination by any such entity. 42 U.S.C. § 12132. 84. A “public entity” includes state and local government, their agencies, and their instrumentalities. 42 U.S.C. § 12131(1). 85. Governor Cuomo, acting in is official capacity, at all times relevant to this action, and currently is a “public entity” within the meaning of Title II of the ADA. 86. Governor Cuomo provided and provides “services, programs [and] activities” through his office. 28 C.F.R. § 35.130. 87. The term “disability” includes physical and mental impairments that substantially limit one or more major life activities. 42 U.S.C. § 12102(2). 88. A “qualified individual with a disability” is a person “who, with or without reasonable modification to rules, policies or practices … meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” 42 U.S.C. § 12131(2).
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89. Public entities are required to take appropriate steps to ensure that communications with members of the public with disabilities are as effective as communications with others. 28 C.F.R. § 35.160(a)(1).
90. Public entities are required to provide reasonable accommodations in the form of “appropriate auxiliary aids and services” when necessary to provide individuals with disabilities an equal opportunity to participate in a service, program, or activity. 28 C.F.R. § 35.160(b)(1).
91. “Auxiliary aids and services” includes qualified interpreters. 28 C.F.R. § 35.104. 92. The necessary type of auxiliary aid or service to ensure effective communication
depends on the method of communication used by the individual with a disability; the nature, length, and complexity of the communication involved; and the context of the communication. 28 C.F.R. § 35.160(b)(2). 93. Public entities are required to give primary consideration to the requests of individuals with disabilities in determining what types of auxiliary aids and services are needed. Id. 94. Plaintiffs in seeking access to Governor Cuomo’s daily briefings are qualified individuals under the ADA. 95. Plaintiffs in their attempts to access Governor Cuomo’s televised briefings are frequently unable to understand portions of the briefing by following closed captioning, when available. 96. Plaintiffs who do not have access to the Internet are unable to access Governor Cuomo’s daily briefings with an ASL interpreter. 97. As a result of Governor Cuomo’s acts and omissions, deaf New Yorkers are unable to obtain critical health and safety information from his daily briefings.
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SECOND CLAIM FOR RELIEF SECTION 504 OF THE REHABILITATION ACT OF 1973, 29 U.S.C. § 794 98. DRNY incorporates by reference each and every allegation contained in the foregoing paragraphs as if specifically alleged herein. 99. Section 504 provides, in pertinent part that “no otherwise qualified individual with a disability in the United States… shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). 100.Governor Cuomo was, at all times relevant to this complaint, and is currently a recipient of federal financial assistance within the meaning of Section 504. 101.Governor Cuomo provided and provides a “program or activity” where “program or activity” is described as “all operations of a department, agency, special purpose district or other instrumentality of a State or of a local government.” 29. U.S. C. § 794(b)(1)(A). 102.A disability is defined as “a physical or mental impairment that substantially limits one or more major life activities of such individual.” 29 U.S.C. § 705(9)(B) citing 42 U.S.C. § 12102(1)(A). 103.Deaf New Yorkers are qualified individuals under Section 504. 104.Governor Cuomo’s practice of denying access to ASL interpretation violates Section 504 by authorizing, or failing to forbid, actions that:
a. Exclude from participation in, deny the benefits of, or otherwise subject individuals to discrimination on the basis of disability. 29 U.S.C.§ 794(a); 28 C.F.R. § 41.51(a).
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b. Deny qualified persons with a disability the opportunity to participate in or benefit from the aid, benefit, or service. 45 C.F.R. § 84.4(b)(1)(i); 28 C.F.R. § 41.51(b)(1)(i).
c. Afford qualified persons with a disability an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded to others. 45 C.F.R. §§ 84.4(b)(1)(ii), 84.52(a)(2); 28 C.F.R. § 41.51(b)(1)(ii).
d. Limit individuals with a disability in the enjoyment of rights, privileges, advantages and opportunities enjoyed by others receiving an aid, benefit, or service. 45 C.F.R. §§ 84.4(b)(1)(vii), 84.52(a)(4); 28 C.F.R. § 41.51(b)(1)(vii).
105.As a result of Governor Cuomo’s acts and omissions, deaf New Yorkers who rely on television to access his daily briefings are denied the full benefits of these briefings. PRAYER FOR RELIEF
WHEREFORE, Plaintiffs request the Court to provide relief as set forth below: 1. Issue a Temporary Restraining Order requiring Governor Cuomo to provide live televised in frame ASL interpretation at any and all briefings designed to reach residents of New York; 2. Enter preliminary and thereafter permanent injunctive relief, pursuant to 28 U.S.C. § 2202, requiring Governor Cuomo to provide live televised in frame ASL interpretation at all briefings designed to reach residents of New York; 3. Order Governor Cuomo to immediately provide live televised in frame ASL interpretation at any and all briefings designed to reach residents of New York;
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4. Enter a declaratory judgment, in accordance with 28 U.S.C. § 2201, declaring that the Governor Cuomo’s actions and failures violate the ADA and Section 504 by subjecting Plaintiffs to discrimination;
5. Retain jurisdiction over this action to ensure Governor Cuomo’s compliance with the mandates of the ADA and Section 504;
6. Award plaintiff reasonable attorney fees and costs; 7. Provide such other further relief as deemed just and proper DATE: April 29, 2020 Albany, NY DISABILITY RIGHTS NEW YORK Plaintiff By: /S/ Jessica Barlow____ JESSICA BARLOW JB2194 MARC FLIEDNER MF4201 DISABILITY RIGHTS NEW YORK Attorneys for Plaintiffs 25 Chapel Street, Suite 1005 Brooklyn, NY 11201 Phone: 518-512-4841 Fax: 518-427-6561 (not for service)
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 Case 1:20-cv-03338-VEC Document 12 Filed 05/04/20 Page 1 of 4

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

--------------------------------------------------------------- X

DENNIS MARTINEZ, et al.,

:

:

Plaintiffs,

:

:

- against -

:

:

ANDREW M. CUOMO, in his official capacity as :

Governor of New York State,

:

:

Defendant.

:

--------------------------------------------------------------- X

1:20-cv-03338 (VEC)

DECLARATION OF TIM RUFFINEN IN OPPOSITION TO PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION
I, TIM RUFFINEN, declare under penalty of perjury pursuant to 28 U.S.C. § 1746 that the following is correct:
1. My name is Tim Ruffinen and I serve as the Deputy Communications Director for Human Services in the Office of Governor Andrew M. Cuomo.
2. As part of my work, I serve as a liaison between the Press Information Office and the Media Services Center, a part of the New York State Office of General Services. I ensure that the Media Services Center is notified whenever the Governor does a media event and assigns the appropriate technical staff to provide a live webstream and satellite feed of the event. The information contained in this declaration is based on my personal knowledge and a review of documents in my possession.
3. I have been involved in ensuring that the Governor’s regular daily press conference on the COVID-19 public health emergency reaches as many New Yorkers as possible, including the deaf and hearing impaired. The Governor’s Office uses various means to communicate with this community.

Case 1:20-cv-03338-VEC Document 12 Filed 05/04/20 Page 2 of 4
4. On March 2, 2020, Governor Cuomo started holding a regular daily press conference on the COVID-19 public health emergency.
5. Since that date, the Governor has conducted this press conference on a daily basis, with the exception of March 14, 2020, when he held a phone call with the media. The Governor’s Office prepared a transcript of that phone call and posted it on the Governor’s website immediately after the call. Transcripts are typically posted no later than a few hours from the conclusion of the event, and usually by 4pm on the day of the event.
6. Information about the timing of the regular daily COVID-19 press conference is distributed via the Governor and New York State’s social media platform and the Governor’s email distribution list, and is added to the Governor’s website at least 30 minutes prior to the start of the regular daily COVID-19 press conference.
7. Anyone can sign up for the email distribution list to receive updates related to the COVID-19 public health emergency by visiting https://coronavirus.health.ny.gov/home.
8. During the regular daily press conference, the Governor frequently utilizes a PowerPoint presentation. The presentation includes slides of facts and figures related to the COVID19 public health emergency that are usually displayed as graphs or charts. The presentation also includes slides with text explaining important announcements related to the COVID-19 public health emergency.
9. Since March 2, 2020, the Governor’s Office and Media Services have provided closed captioning for all of the Governor’s regular daily press conferences addressing COVID19. A person listens to the real time audio of the conference and transcribes what is being said.
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10. Since March 27, 2020, the Governor’s Office has made a simultaneous American Sign Language (“ASL”) broadcast of these regular daily press conferences available via its webstream. This ASL broadcast contains a split screen of the Governor’s briefing and the ASL interpretation.
11. The ASL broadcast is done by a Certified Deaf Interpreter (“CDI”) to provide the simultaneous ASL interpretation of the Governor’s daily COVID-19 press conference. A CDI is a certified interpreter for ASL who possesses native fluency in ASL. CDIs are the preferred method of ASL translation for the hearing impaired community.
12. The Governor’s Office notifies the public of this ASL interpretation daily. Specifically, prior to the start of each COVID-19 press conference, the Governor's Office advises New Yorkers about the simultaneous ASL interpretation through e-mail blasts and the Governor’s social media accounts. In addition, the link to the simultaneous ASL broadcast is prominently displayed on the Governor’s website.
13. This simultaneous interpretation has been reaching the deaf and hearing-impaired community. For example, on March 27, 2020, there were 1,103 views of the simultaneous ASL interpretation of the Governor’s COVID-19 press conference. On April 30, 2020, the standard webstream of the press conference received 66,682 views and the simultaneous ASL feed received 4,832 views.
14. Following every daily COVID-19 press conference, the Governor’s Office issues a press release that contains information relevant to the press conference through the Governor’s website and the email distribution list.
15. In addition to the closed captioning, the simultaneous ASL broadcast, and the email distribution list, the Governor’s Office disseminates important information about the
3

Case 1:20-cv-03338-VEC Document 12 Filed 05/04/20 Page 4 of 4 COVID-19 emergency via social media accounts on Facebook, Twitter, and Instagram. This information is often disseminated simultaneously with the Governor’s regular daily COVID-19 press conference. 16. The Governor’s Office also provides a written transcript of every regular daily COVID19 press conference via the Governor’s website and through e-mail distribution. 17. In addition, following every regular daily COVID-19 press conference, a video with simultaneous ASL interpretation is posted on the Governor’s public facing YouTube page, which is also accessible via a link on the Governor’s website. Dated: New York, New York May _4_, 2020
TIM RUFFINEN
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Case 1:20-cv-03338-VEC Document 13 Filed 05/04/20 Page 1 of 30

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

--------------------------------------------------------------- X

DENNIS MARTINEZ, et al.,

:

:

Plaintiffs,

:

:

- against -

:

:

ANDREW M. CUOMO, in his official capacity as :

Governor of New York State,

:

:

Defendant.

:

--------------------------------------------------------------- :

X

1:20-cv-03338 (VEC)

DEFENDANT’S MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION
LETITIA JAMES Attorney General State of New York 28 Liberty Street New York, NY 10005 Attorney for Defendant
Andrew Amer Special Litigation Counsel
of Counsel

Case 1:20-cv-03338-VEC Document 13 Filed 05/04/20 Page 2 of 30
TABLE OF CONTENTS
PRELIMINARY STATEMENT .................................................................................................... 1 STATEMENT OF FACTS ............................................................................................................. 4
A. The Governor’s Daily COVID-19 Press Conferences........................................................ 4 B. Plaintiffs’ Complaint........................................................................................................... 6 STANDARD OF REVIEW ............................................................................................................ 8 ARGUMENT .................................................................................................................................. 9
I. PLAINTIFFS FAIL TO DEMONSTRATE A CLEAR OR SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS ............................ 9
A. There is No Clear or Substantial Likelihood Plaintiffs Will Succeed on the Merits Because They Fail to Allege Facts that Support a Reasonable Inference They Are Unable to Access the ASL Interpretation Already Provided on the Governor’s Official Website........................ 10
B. There is No Clear or Substantial Likelihood Plaintiffs Will Succeed on the Merits Because the Governor’s Multiple Accommodations for the Deaf Are Not Unreasonable Under the ADA and Rehab Act .................................... 14
II. PLAINTIFFS FAIL TO DEMONSTRATE IRREPARABLE HARM IN THE ABSENCE OF A MANDATORY INJUNCTION ........................................ 22
III. THE BALANCE OF EQUITIES DOES NOT TIP IN PLAINTIFFS’ FAVOR......................................................................................................................... 23
CONCLUSION............................................................................................................................. 25

Case 1:20-cv-03338-VEC Document 13 Filed 05/04/20 Page 3 of 30
TABLE OF AUTHORITIES
Cases Abbott Labs. v. Adelphia Supply USA, No. 15 CV 5826, 2015 WL 10906060
(E.D.N.Y. Nov. 6, 2015), aff'd sub nom. Abbott Labs. v. H&H Wholesale Servs., Inc., 670 F. App’x 6 (2d Cir. 2016)......................................................................... 8 Alexander v. Choate, 469 U.S. 287 (1985) ................................................................................... 16 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ......................................................................................... 10 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ......................................................................... 10 Bergamaschi v. Cuomo, No. 20-cv- 2817, 2020 WL 1910754 (S.D.N.Y. April 20, 2020) ................................................................................................................................. 21 Brooklyn Center for Independence of the Disabled v. Bloomberg, 980 F. Supp. 2d 588 (S.D.N.Y. 2013) ..................................................................................................... 2, 17 Disability Rights New York v. New York State, No. 17-cv-6965, 2019 WL 2497907 (E.D.N.Y. June 14, 2019) ........................................................................ 2, 13, 14 Disabled in Action v. Bd. of Elections in City of New York, 752 F.3d 189 (2d Cir. 2012) ................................................................................................................................. 15 eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006)............................................................ 23 Freedom Holdings, Inc. v. Spitzer, 408 F.3d 112 (2d Cir. 2005) ........................................... 22, 23 Henrietta D. v. Bloomberg, 331 F.3d 261 (2d Cir. 2003)....................................................... 15, 16 Jaghory v. N.Y. State Dep’t of Educ., 131 F.3d 326 (2d Cir. 1997) ............................................. 10 Lincoln CERCPAC v. Health and Hosps. Corp., 147 F.3d 165 (2d Cir. 1998)............................ 16 Loye v. Cnty. of Dakota, 625 F.3d 494 (8th Cir. 2010) ........................................................... 18, 21 Matson v. Bd. of Educ., 631 F.3d 57 (2d Cir. 2011) ................................................... 10, 11, 12, 13 Midgett v. Tri-County Metro. Transp. Dist., 254 F.3d 846 (9th Cir. 2001)............................ 16, 20 N.Y. Civil Liberties Union v. N.Y.C. Transit Auth., 684 F.3d 286 (2d Cir. 2012) .......................... 8 New York ex rel. Schneiderman v. Actavis PLC, 787 F.3d 638 (2d Cir. 2015) .............................. 8 North American Soccer League, LLC v. United States Soccer Federation, Inc., 883 F.3d 32 (2d Cir. 2018)........................................................................................ 8, 9, 14
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Patton v. Dole, 806 F.2d 24 (2d Cir. 1986) .................................................................................... 8 Pension Ben. Guar. Corp. ex rel. St. Vincent Catholic Med. Ctrs. Ret. Plan v.
Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705 (2d Cir. 2013) ........................................ 10 Prakel v. Indiana, 100 F. Supp. 3d 661 (S.D. Ind. 2015) ............................................................. 17 Rodriguez v. City of New York, 197 F. 3d 611 (2d Cir. 1999)...................................................... 16 Salinger v. Colting, 607 F.3d 68 (2d Cir. 2010) ........................................................................... 23 Singas Famous Pizza Brands Corp. v. New York Adver. LLC, 468 F. App’x 43 (2d
Cir. 2012) .................................................................................................................... 22, 23 Stauber v. N.Y. City Transit Auth., 10 A.D.3d 280 (N. Y. App. Div. 1st Dep't
2004) ................................................................................................................................. 17 Stephens v. Shuttle Assocs., L.L.C., 547 F. Supp. 2d 269 (S.D.N.Y. 2008) ................................. 17 Tom Doherty Assocs., Inc. v. Saban Entm’t, Inc., 60 F.3d 27 (2d Cir. 1995)................................. 8 Tsirelman v. Daines, 794 F.3d 310 (2d Cir. 2015) ....................................................................... 10 Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982) ................................................................. 23 Wells Fargo Bank, N.A. v. Wrights Mill Holdings, LLC, 127 F. Supp. 3d 156
(S.D.N.Y. 2015) ................................................................................................................ 11 Williams v. City of New York, 121 F. Supp. 3d 354 (S.D.N.Y. 2015) .................................... 15, 17 Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008)....................................... 23 Wright v. New York State Dep’t of Corrections, 831 F.3d 64 (2d Cir. 2016)............................... 17 Statutes 29 U.S.C. § 794............................................................................................................................... 7 29 U.S.C. § 794(a) ........................................................................................................................ 15 42 U.S.C. § 12101........................................................................................................................... 7 42 U.S.C. § 12132......................................................................................................................... 15 Other Authorities U.S. Deparment of Justice Technical Assistance Manual, § II-5.1000 ........................................ 16 U.S. Department of Justice Technical Assistance Manual § II-3.3000 ........................................ 16
iii

Case 1:20-cv-03338-VEC Document 13 Filed 05/04/20 Page 5 of 30 Regulations 28 C.F.R. § 35.150 ........................................................................................................................ 16
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Defendant Andrew M. Cuomo, Governor of New York State (“Governor”), sued here in his official capacity, respectfully submits this memorandum of law and the Declaration of Tim Ruffinen, dated May 4, 2020 (“Ruffinen Decl.”), in opposition to Plaintiffs’ motion for a preliminary injunction.
PRELIMINARY STATEMENT During his daily COVID-19 press briefings, the Governor provides multiple means by which deaf individuals can access the important information conveyed during the briefings. On his official website, www.governor.ny.gov/news, the Governor provides links to a live and recorded video presentation of his press briefings with an in-frame American Sign Language (“ASL”) interpreter and a same-day transcript. The live television broadcast of the press briefing uses closed captioning and PowerPoint slides, all of which visually convey the important information covered by the Governor and the day’s panel of experts. Plaintiffs, four deaf individuals and a non-profit organization that files claims to protect the rights of individuals with disabilities, contend these many and varied accommodations are unreasonable under federal law. They assert that the law requires the Governor to go one step further by making the in-frame ASL interpretation now available on his website also available on the live television broadcast of his press briefings carried by the major networks and other cable news channels. And they seek a preliminary injunction to mandate this change, which is the ultimate relief they request in the action. The Court should deny Plaintiffs’ motion for a preliminary injunction for multiple reasons. First, Plaintiffs fail to meet the heightened standard for a mandatory injunction requiring them to show a clear or substantial likelihood of success on the merits. Plaintiffs concede by the very relief they seek that, as a means of communicating the important information covered in the

Case 1:20-cv-03338-VEC Document 13 Filed 05/04/20 Page 7 of 30
press briefings, ASL interpretation provides a reasonable accommodation. In light of this concession, Plaintiffs have no likelihood of success on the merits unless they can allege facts supporting a reasonable inference that they cannot access the ASL interpretation the Governor already provides on his website, and they allege no such facts. Two of the individual Plaintiffs admit that they have access to the internet and the remaining two individual Plaintiffs allege merely that they do not own or use a computer, but do not allege any other facts to support a reasonable inference that they are unable to watch the ASL interpretation of the press briefings currently available online on other devices, such as a smart phone. To the extent that the organizational Plaintiff, Disability Advocates, Inc. (d/b/a Disability Rights New York) (“DRNY”), asserts that it is authorized by federal statute to bring this action on behalf of other deaf individuals who cannot access the ASL interpretation online, that argument is without merit; DRNY has no such standing to assert the legal rights of others. See Disability Rights New York v. New York State, No. 17-cv-6965, 2019 WL 2497907 at *5, 8-11 (E.D.N.Y. June 14, 2019).
Moreover, even if the individual Plaintiffs’ allegations did permit a reasonable inference that they cannot access the ASL interpretation online, Plaintiffs would still fall far short of establishing a clear or substantial likelihood of success on the merits based on existing precedent. The only case decided by this Court involving a reasonable accommodation challenge to the means of communication by a government entity during an emergency provides no support for Plaintiffs’ position. See Brooklyn Center for Independence of the Disabled v. Bloomberg, 980 F. Supp. 2d 588, 656 (S.D.N.Y. 2013) (Furman, J.) (holding no violation with respect to the means of communication in light of the “multiplicity of ways that the City communicates emergency information and lack of evidence that people with disabilities do not receive this information”). Plaintiffs fail to cite a single case lending support to their position that the multiple ways in
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which the Governor ensures deaf individuals can access his briefings are insufficient. Accordingly, they fail to establish any likelihood of success on the merits, much less a likelihood of success that is clear or substantial.
Second, Plaintiffs will not suffer any irreparable harm if there is no mandatory injunction pending the resolution of the case. In essence, Plaintiffs’ irreparable injury argument is the assertion that the individual Plaintiffs are unable to access the ASL interpretation currently available online and therefore will not obtain the important information conveyed to the general public during the briefings. For the reasons already discussed, there are no allegations in the complaint to support a reasonable inference that Plaintiffs are unable to access the ASL interpretation available online. In the absence of a basis to infer Plaintiffs have no such access, they have no basis to argue they will suffer any irreparable harm.
Third, the balance of equities does not tip in Plaintiffs’ favor. Plaintiffs’ argument that they suffer “immense hardship” in attempting to access the in-frame ASL interpretation available on the Governor’s website is without support. See Memorandum of Law in Support of Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction, ECF No. 4-1 (“Plaintiffs’ MOL”), at 14. None of the Plaintiffs alleges or attests to any such hardship. On balance, the equities tip in favor of maintaining the status quo.
For these reasons, the Court should deny Plaintiffs’ request for a preliminary injunction in its entirely. The Governor has made multiple accommodations to ensure deaf individuals can access his daily COVID-19 press briefings, including an in-frame ASL interpretation available on his official website during and after the briefings, closed captioning and frequent use of visual demonstrative aids on the live television broadcast, and same-day transcripts available online. These accommodations are more than reasonable and sufficient under federal law.
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STATEMENT OF FACTS A. The Governor’s Daily COVID-19 Press Conferences On March 2, 2020, the Governor started holding a regular daily press conference on the COVID-19 public health emergency. Ruffinen Decl. ¶ 4. Since that date, the Governor has conducted this press conference daily, with the exception of March 14, 2020, when he held a phone call with the media. Id. ¶ 5. Information about the timing of the regular daily COVID-19 press conference is distributed via the Governor and New York State’s social media platform and the Governor’s e-mail distribution list, and is added to the Governor’s website at least 30 minutes prior to the start of the regular daily COVID-19 press conference. Id. ¶ 6. Anyone can sign up for the e-mail distribution list to receive updates related to the COVID-19 public health emergency by visiting https://coronavirus.health.ny.gov/home. Id. ¶ 7. During the regular daily press conference, the Governor frequently utilizes a PowerPoint presentation. Id. ¶ 8. The presentation includes slides of facts and figures related to the COVID19 public health emergency that are usually displayed as graphs or charts. Id. The presentation also includes slides containing text explaining important announcements related to the COVID19 public health emergency. Id. For example, during the March 20, 2020 briefing, the Governor announced the stay-at-home executive order, referred to as “New York on PAUSE.” All of the important information about this order was conveyed on multiple PowerPoint slides that were displayed on a split screen as the Governor was speaking, including slides instructing viewers to “remain indoors to greatest extent to protect physical and mental health,” listing the rules for the “most vulnerable groups” and “non-vulnerable populations,” and advising that the restrictions
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would be enforced through civil fines and mandatory closure of non-compliant businesses.1 Similarly, the Governor’s announcement during the April 15, 2020 COVID-19 press conference that residents are required to wear face masks in public was prominently conveyed on a split screen PowerPoint slide while the Governor was speaking.2
Since March 2, 2020, the Governor’s Office and Media Services have provided closed captioning for all the Governor’s regular daily press conferences addressing COVID-19. Id. ¶ 9. A person listens to the real time audio of the conference and transcribes what is being said. Id.
Since March 27, 2020, the Governor’s Office has made a simultaneous ASL broadcast of these regular daily press conferences available via its webstream. Id. ¶ 10. This ASL broadcast contains a split screen of the Governor’s briefing and the ASL interpretation. Id. The ASL broadcast is done by a Certified Deaf Interpreter (“CDI”) to provide simultaneous ASL interpretation of the Governor’s daily COVID-19 press conference. Id. ¶ 11. A CDI is a certified interpreter for ASL who possesses native fluency in ASL. Id. CDIs are the preferred method of ASL translation for the deaf community. Id. The Governor’s Office notifies the public of this ASL interpretation daily. Id. ¶ 12. Specifically, prior to the start of each COVID19 press conference, the Governor's Office advises New Yorkers about the simultaneous ASL interpretation through e-mail blasts and the Governor’s social media accounts. Id. In addition, the link to the simultaneous ASL broadcast is prominently displayed on the Governor’s website.
1 See archived video of the television broadcast of the March 20, 2020 COVID-19 press briefing (available at https://www.youtube.com/watch?v=XxA4HL-I8sc&feature=youtu.be) at mark 10:24 (NY on PAUSE, 2 Rules), mark 11:13 (100 percent workforce reduction); mark 11:29 (rules for most vulnerable groups), mark 14:44 (rules for non-vulnerable populations), and mark 16:59 (enforcement through civil fines and closures). 2 See archived video of the television broadcast of the April 15, 2020 COVID-19 press briefing (available https://www.youtube.com/watch?v=FeNECzGY11g&feature=youtu.be) at mark 30:21 (“All people in public in New York must have mask or mouth/nose covering”).
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Id. This simultaneous ASL interpretation has been reaching the deaf community. Id. ¶ 13. For example, on March 27, 2020, there were 1,103 views of the simultaneous ASL interpretation of the Governor’s COVID-19 press conference. Id. On April 30, 2020, the standard webstream of the press conference received 66,682 views and the simultaneous ASL feed received 4,832 views. Id.
Following every daily COVID-19 press conference, the Governor’s Office issues a press release that contains information relevant to the press conference through the Governor’s website and the e-mail distribution list. Id. ¶ 14. In addition to the closed captioning, the simultaneous ASL broadcast, and the e-mail distribution list, the Governor’s Office disseminates important information about the COVID-19 emergency via social media accounts on Facebook, Twitter, and Instagram. Id. ¶ 15. This information is often disseminated simultaneously with the Governor’s regular daily COVID-19 press conference. Id. The Governor’s Office also provides a written transcript of every regular daily COVID-19 press conference via the Governor’s website and through e-mail distribution. Id. ¶ 16. These transcripts are typically posted no later than a few hours from the conclusion of the conference, and usually by 4pm on the day of the conference.3 Id. ¶ 5. In addition, following every regular daily COVID-19 press conference, a video with simultaneous ASL interpretation is posted on the Governor’s public facing YouTube page, which is also accessible via a link on the Governor’s website. Id. ¶ 17.
B. Plaintiffs’ Complaint Four individuals and DRNY filed this action against the Governor to challenge the means by which he communicates his daily COVID-19 press briefings under Title II of the Americans
3 The Governor’s Office posted on the Governor’s website a transcript of the previouslyreferenced March 14, 2020 call held with the media in lieu of a daily press conference immediately after the call. Id. ¶ 5.
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with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101, et seq., and Section 504 of the Rehabilitation Act of 1973 (“Rehab Act”), 29 U.S.C. § 794. See Complaint, ECF No. 1 (“Compl.”), at ¶¶ 1, 14.
Plaintiff Martinez is a 30-year-old deaf individual who is fluent in ASL. Id. ¶¶ 50-51. He was raised in Colombia and learned to read and write Spanish before learning some English. Id. ¶ 52. He seeks out videos on social media platforms with ASL interpretation of the information covered in the Governor’s press briefings in order to respond to questions he receives from other deaf community members. Id. ¶ 58. Plaintiff Nguyen is a 56-year-old deaf individual who learned ASL as a teenager and does not read, write, or understand English. Id. ¶¶ 60-61. He does not use a computer. Id. ¶ 62. The complaint is silent about whether he resides with anyone who uses a computer or whether he uses a smart phone or other device with a data plan or wifi connectivity. Plaintiff Hallenbeck is a 63-year-old deaf individual who is fluent in ASL and understands some English. Id. ¶¶ 67-68. He does not own a computer. Id. ¶ 71. The complaint is silent about whether he resides with anyone who owns or has access to a computer or whether he uses a smart phone or other device with a data plan or wifi connectivity. Plaintiff Wildberger is a 23-year-old deaf individual who is fluent in ASL. Id. ¶ 75. The complaint is silent about whether she understands and reads English. She has access to the internet. Id. ¶ 80.
Plaintiff DRNY alleges that it is authorized by federal statute to pursue legal, administrative, and other appropriate remedies or approaches to ensure the protection of, and advocacy for, the rights of individuals with disabilities. Id. ¶ 24. DRNY brings this action on behalf of itself and the four individual Plaintiffs pursuant to that alleged statutory authority. Id. ¶ 25.
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Plaintiffs acknowledge that the Governor currently offers ASL interpretation of his live press conferences on the Governor’s official website and that at least some of the television stations broadcasting his briefings provide closed captioning. Id. ¶ 39, 41. Plaintiffs allege the Governor is in violation of Title II of the ADA and Section 504 of the Rehab Act because he provides closed captioning and uses visual demonstrative aids on the live television broadcasts of his press conferences without also providing on those broadcasts the same ASL interpretation available on his website. Id. ¶¶ 95-97, 105.
STANDARD OF REVIEW A preliminary injunction is an “extraordinary remedy that should not be granted as a routine matter.” Patton v. Dole, 806 F.2d 24, 28 (2d Cir. 1986). Because of the extraordinary nature of the relief involved, a plaintiff is required to “carry the burden of persuasion by a clear showing for each factor.” Abbott Labs. v. Adelphia Supply USA, No. 15 CV 5826, 2015 WL 10906060, at *5 (E.D.N.Y. Nov. 6, 2015), aff'd sub nom. Abbott Labs. v. H&H Wholesale Servs., Inc., 670 F. App’x 6 (2d Cir. 2016). Generally, a plaintiff seeking a preliminary injunction must show: “(1) irreparable harm; (2) either a likelihood of success on the merits or both serious questions on the merits and a balance of hardships decidedly favoring the moving party; and (3) that a preliminary injunction is in the public interest.” North American Soccer League, LLC v. United States Soccer Federation, Inc., 883 F.3d 32, 37 (2d Cir. 2018) (citing New York ex rel. Schneiderman v. Actavis PLC, 787 F.3d 638, 650 (2d Cir. 2015)). Where, as here, a plaintiff seeks a mandatory injunction - one that “alter[s] the status quo by commanding some positive act” - a higher standard applies. Tom Doherty Assocs., Inc. v. Saban Entm’t, Inc., 60 F.3d 27, 34 (2d Cir. 1995). Plaintiffs seeking a mandatory injunction must show “a clear or substantial likelihood of success on the merits.” N.Y. Civil Liberties Union v. N.Y.C. Transit Auth., 684 F.3d 286, 294 (2d Cir. 2012); see also North American Soccer, 883 F.3d at 37.
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Plaintiffs acknowledge that they seek a mandatory injunction and must satisfy this heightened standard. See Plaintiffs’ MOL at 11.4
ARGUMENT I. PLAINTIFFS FAIL TO DEMONSTRATE A CLEAR OR
SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS The gravamen of Plaintiffs’ case, and the basis for their requested injunction, is the contention that the Governor has failed to provide reasonable accommodation for deaf individuals with respect to the means of communicating his daily COVID-19 press briefings, in violation of Title II of the ADA and Section 504 of the Rehab Act. Plaintiffs have no clear or substantial likelihood of success on the merits for two reasons. First, Plaintiffs fail to state a claim under the ADA or Rehab Act because they fail to allege facts sufficient to support a reasonable inference that they cannot adequately access the inframe ASL interpretation the Governor already provides on his official website, which is the very form of accommodation they seek. Two of the Plaintiffs concede they have internet access. Compl. ¶¶ 58, 80. The cursory allegations by the other two individual Plaintiffs that they do not “use” or “own” a computer (Compl. ¶¶ 62, 71) are insufficient. Nowhere in the complaint or their declarations do they allege that they have no access to a computer with wifi that may be owned by others in their households, could not obtain assistance from others to use a computer to log onto the Governor’s site, or cannot access the internet through some other device such as an
4 Inexplicably, Plaintiffs assert on the very next page of their brief that they “need only show that there is a fair probability that they will prevail” on the merits to obtain a preliminary injunction. Plaintiffs’ MOL at 12. This is incorrect. Because Plaintiffs seek a mandatory injunction, they must meet the heightened standard requiring that they show a clear or substantial likelihood of success on the merits. North American Soccer, 883 F.3d at 37.
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iPad, smart phone, or smart TV. And DRNY has no standing to assert the rights of other deaf individuals.
Second, even if Plaintiffs’ allegations were sufficient to support a reasonable inference that they cannot access the ASL interpretation provided on the Governor’s website, the closed captioning available on the live television broadcast and the Governor’s frequent use of PowerPoint slides to convey critical information constitute a reasonable accommodation as a matter of law, or at a minimum presents a sufficiently close question such that Plaintiffs’ likelihood of success is far from clear or substantial.
These points are discussed in turn below. A. There is No Clear or Substantial Likelihood Plaintiffs Will Succeed on the Merits Because They Fail to Allege Facts that Support a Reasonable Inference They Are Unable to Access the ASL Interpretation Already Provided on the Governor’s Official Website
Plaintiffs’ complaint fails to state a claim that would survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. A court reviewing a Rule 12(b)(6) motion must “accept all factual allegations in the complaint as true and draw inferences from those allegations in the light most favorable to the plaintiff.” Tsirelman v. Daines, 794 F.3d 310, 313 (2d Cir. 2015) (internal citations omitted). A plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Although a court must accept all allegations contained in the complaint to be true, this principle is “inapplicable to legal conclusions” or “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Iqbal, 556 U.S. at 678.
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Plaintiffs concede that providing in-frame ASL interpretation during the Governor’s COVID-19 press briefings that is accessible to them would satisfy Title II of the ADA and Section 504 of the Rehab Act; indeed, that is the very relief they seek in this action. Plaintiffs’ MOL at 1. They also concede that the Governor provides live in-frame ASL interpretation during his COVID-19 press briefings on his official website. Compl. ¶ 39. The in-frame ASL interpretation is also available on archived videos accessible on YouTube through a link provided on the Governor’s website.5 In order to state a claim for relief then, Plaintiffs must at least allege facts sufficient to support a reasonable inference that they are unable to access the ASL interpretation available on the Governor’s website. This they have not done.
Plaintiff Martinez alleges that he “seek[s] out videos on social media platforms with ASL interpretation of the information covered by” the Governor’s press briefings after the fact. Compl. ¶ 58; Martinez Decl. ¶ 7. This allegation establishes that Plaintiff Martinez has access to the internet and can, if he so chooses, either watch the press briefings live on the Governor’s site with in-frame ASL interpretation or watch them later at his convenience through the YouTube link provided on the Governor’s website. Accordingly, Plaintiff Martinez’s allegations fail to state a claim under the ADA or Rehab Act because the Court may not reasonably infer from his allegations that he is unable to access the live in-frame ASL interpretation already provided online. Matson, 631 F.3d at 63.
5 The Governor’s website provides, inter alia, a link for constituents to watch videos of past press briefings “with ASL interpretation available on YouTube.” See, e.g., https://www.governor.ny.gov/news/video-audio-photos-rush-transcript-amid-ongoing-covid-19pandemic-governor-cuomo-announces-16. The Court may take judicial notice that this material is available on the Governor’s official website. Wells Fargo Bank, N.A. v. Wrights Mill Holdings, LLC, 127 F. Supp. 3d 156, 166 (S.D.N.Y. 2015) (noting courts have taken judicial notice of documents filed with government entities and available on their official websites).
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Plaintiff Wildberger alleges that she “has access to the internet,” but without any elaboration claims she has not been able to stream the live ASL interpretation on the Governor’s website and has found the ASL interpreter on the Governor’s website to be “frequently not available.” Compl. ¶ 80; Wildberger Decl. ¶ 6. She also alleges that she “would be able to understand Governor Cuomo’s briefings if televised ASL interpretation were provided,” offering no plausible explanation for why she would have a better understanding of the ASL interpretation if she watched it on the television broadcast as opposed to the Governor’s website. In the absence of any explanation as to why Plaintiff Wildberger was unable to stream the live ASL interpretation on the Governor’s website, what it means for the ASL interpreter to be “not available,” or why she would have a better understanding of the ASL interpretation viewed on a television screen versus over the internet, the Court should not accept her conclusory statements that she was unable to access or understand the live ASL interpretation provided on the Governor’s website, Iqbal, 556 U.S. at 678, and cannot reasonably infer that she is unable to derive the benefits of the live ASL interpretation the Governor already provides. Matson, 631 F.3d at 63. Moreover, even if the Court were to credit Plaintiff Wildberger’s conclusory statement that she is unable to access or understand the live ASL interpretation provided during each press briefing on the Governor’s website, there is no basis in the complaint for the Court to reasonably infer that Plaintiff Wildberger has any issue with accessing the YouTube video with ASL interpretation posted within a short time after the conclusion of each briefing available through a link provided on the Governor’s website. Ruffinen Decl. ¶ 17. Accordingly, Plaintiff Wildberger’s allegations fail to state a claim under the ADA or Rehab Act because the Court may not reasonably infer from her allegations that she is unable to access the in-frame ASL interpretation already provided online. Matson, 631 F.3d at 63.
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The allegations for the two remaining individual Plaintiffs similarly fall short, even though they do not concede internet access like the allegations for Plaintiffs Martinez and Wildberger. Plaintiff Nguyen alleges he “do[es] not use a computer and therefore cannot access the internet.” Nguyen Decl. ¶ 5 (emphasis added). Similarly, Plaintiff Hallenbeck alleges that he “do[es] not own a computer and therefore cannot access the Governor’s briefings online.” Hallenbeck Decl. ¶ 6 (emphasis added). However, the Court should reject the conclusory statements that these Plaintiffs cannot access the internet merely because they do not “use” or “own” a computer. Notably, they fail to allege that there is no one in their households who possesses a computer or that they do not have access to any other device, such as a smart phone, that would enable them to access the ASL interpretation available on the Governor’s website. Therefore, the Court cannot reasonably infer based on the mere assertion that they do not “use” or “own” a computer that they are unable to access the ASL interpretation online. Matson, 631 F.3d at 63.
Finally, Plaintiff DRNY is without standing to assert claims on behalf of other, unnamed deaf individuals who may in theory have no access to the live or recorded ASL interpretation available on the Governor’s website. DRNY alleges that it is the New York State Protection & Advocacy System (“P&A System”) with the authority to “file claims of abuse, neglect, and rights violations on behalf of individuals with disabilities . . . .” Compl. ¶¶ 24-25. To the extent DRNY will argue that, as a P&A System, it has standing to assert claims on behalf of other third parties who could potentially allege, unlike the named individual Plaintiffs, that they are deaf and without any ability to access the ASL interpretation on the Governor’s official website, that legal theory of standing has already been soundly rejected. In Disability Rights New York v. New York State, No. 17-cv-6965, 2019 WL 2497907 (E.D.N.Y. June 14, 2019), DRNY and an individual
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plaintiff on his own behalf and on behalf of a purported class of others similarly situated, alleged that the state defendants failed to timely discharge adults with disabilities from residential schools where they lived to a more integrated community setting in violation of the ADA and Rehab Act. Id. at *1. In a comprehensive opinion, the court rejected DRNY’s assertion that its authorization as a P&A System overcomes the prudential standing rule prohibiting a litigant from raising another person’s legal rights.6 Id. at *5, 8-11 (“To overcome [the third-party bar] and assert the rights of the mentally disabled in New York, DRNY was required to show that an exception to that prohibition applied. . . . It did not, and its claims must be dismissed.”) (internal citation omitted). There is no clear or substantial likelihood that the same standing argument would fare any better in this case.
* * * Absent any allegations in the complaint that would support a reasonable inference the Plaintiffs are unable to access the live or recorded ASL interpretation available on the Governor’s official website, Plaintiffs have no clear or substantial likelihood of surviving a Rule 12(b)(6) motion to dismiss. North American Soccer, 883 F.3d at 37.
B. There is No Clear or Substantial Likelihood Plaintiffs Will Succeed on the Merits Because the Governor’s Multiple Accommodations for the Deaf Are Not Unreasonable Under the ADA and Rehab Act
Even if the Plaintiffs had alleged facts to support a reasonable inference that they have no ability to access the in-frame ASL interpretation on the Governor’s official website (which is not
6 In Disability Rights, DRNY eschewed any reliance on associational standing as a basis for asserting the legal rights of third parties. Id. at *7 (noting DRNY has “disavowed . . . any attempt to show that it has associational standing”). So too here. DRNY alleges merely that as a P&A System it is authorized to assert claims on behalf of others and asserts no facts in the complaint to establish that it possesses the requisite “indicia of membership” for associational standing. Compl. ¶¶ 24-25.
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the case), they would still fail to establish a clear or substantial likelihood of success on the merits because there is no case law that supports their position.
Title II of the ADA provides in relevant part that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Section 504 of the Rehab Act similarly provides that “[n]o otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . .” 29 U.S.C. § 794(a). Standards under, and requirements imposed by, the Rehab Act and the ADA are effectively the same, and claims under the two statutes are generally treated identically and in tandem. See, e.g., Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003).
To prevail on an ADA claim, plaintiffs must establish that: (1) they are qualified individuals with disabilities; (2) the defendant is subject to the ADA; and (3) they were denied the opportunity to participate in or benefit from the defendant's services, programs or activities, or were otherwise discriminated against by the defendant, by reason of their disabilities. Williams v. City of New York, 121 F. Supp. 3d 354, 364 (S.D.N.Y. 2015) (VEC) (citing Disabled in Action v. Bd. of Elections in City of New York, 752 F.3d 189, 196-97 (2d Cir. 2012)); Henrietta D., 331 F.3d at 272. To establish a claim under the Rehab Act, plaintiffs must also establish that the defendant receives federal funding. Williams, 121 F. Supp. 3d at 364 (citing Henrietta D., 331 F.3d at 272).
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“[T]he disabilities statutes do not guarantee any particular level of . . . care for disabled persons, nor assure maintenance of service previously provided.” Lincoln CERCPAC v. Health and Hosps. Corp., 147 F.3d 165, 168 (2d Cir. 1998); Rodriguez v. City of New York, 197 F. 3d 611, 618 (2d Cir. 1999). The “relevant inquiry” instead focuses on meaningful access, asking “not whether the benefits available to persons with disabilities and to others are actually equal, but whether those with disabilities are as a practical matter able to access benefits to which they are legally entitled.” Henrietta D., 331 F.3d at 273.
Meaningful programmatic access likewise does not guarantee equality of results. See Alexander v. Choate, 469 U.S. 287, 299 (1985); United Spinal Ass'n v. Bd. of Elections in the City of New York, 882 F. Supp. 2d 615, 623 (S.D.N.Y. 2012) (noting “[i]t is well-established in this Circuit that . . . the ADA and its implementing regulations do not require “equal access” or “equal results” for individuals with disabilities”); U.S. Department of Justice (“DOJ”) Technical Assistance Manual § II-3.3000 (“The ADA provides for equality of opportunity, but does not guarantee equality of results.”) (available at https://www.ada.gov/taman2.html#II-1.3000). Meaningful programmatic access means accessibility of the program when viewed in its entirety. See 28 C.F.R. § 35.150 (requiring accessibility of the program “when viewed in its entirety”); DOJ Technical Assistance Manual, § II-5.1000 (explaining that meaningful access should be evaluated in the context of services, programs, or activities, when viewed in their entirety).
The ADA and Rehab Act do not contemplate perfectly accessible service in every respect. See Midgett v. Tri-County Metro. Transp. Dist., 254 F.3d 846, 849 (9th Cir. 2001) (holding that regulations implementing the ADA do not contemplate perfect service for wheelchair-using bus commuters and that isolated or temporary problems are not violations of
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the ADA); Stephens v. Shuttle Assocs., L.L.C., 547 F. Supp. 2d 269, 278 (S.D.N.Y. 2008) (acknowledging that the ADA cannot regulate individuals' conduct in every situation and dismissing ADA claim based on an isolated incident); Stauber v. N.Y. City Transit Auth., 10 A.D.3d 280, 282 (N.Y. App. Div. 1st Dep't 2004) (noting ADA and its implementing regulations “do not contemplate perfect service for wheelchair-using bus commuters.”).
While there are many cases addressing the need for government actors to provide reasonable accommodations to the deaf in other contexts, such as arrests, court appearances, and correctional facilities (see, e.g., Williams, 121 F. Supp. 3d at 359 (arrests); Prakel v. Indiana, 100 F. Supp. 3d 661, 666 (S.D. Ind. 2015) (court proceedings); Wright v. New York State Dep’t of Corrections, 831 F.3d 64, 73 (2d Cir. 2016) (correctional facilities)), cases addressing the need for governments to provide reasonable accommodation when communicating with the public during emergencies are few and far between. This Court has spoken on the issue only once before, in Brooklyn Center for Independence of the Disabled v. Bloomberg, 980 F. Supp. 2d 588 (S.D.N.Y. 2013). In Brooklyn Center, the plaintiff brought a class action suit against New York City to challenge to the City’s emergency and disaster plans developed in the wake of Hurricanes Irene and Sandy for failing to address the needs of individuals with disabilities. Id. at 595-96. In a lengthy decision following a bench trial, Judge Furman addressed in detail each aspect of the City’s emergency and disaster plans under the standards of Title II of the ADA and Section 504 of the Rehab Act, including the means of communicating with deaf individuals during an emergency. Id. at 655. The court found that the City utilized in its plans a “wide variety of methods,” including press conferences and websites, to communicate information during an emergency. Id. The court determined that “[m]ost, if not all, of these means are accessible to people with disabilities,” noting the policy of using ASL interpreters for important press
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conferences, the accessibility of the City’s websites, and the availability of 311 to the deaf via TTY. Id. The court held the City’s means of communication did not violate the ADA or Rehab Act:
None of these means of information distribution is perfect. Press conferences may not always be closed-captioned . . . . But the multiplicity of means by which information is distributed ensures that people with disabilities have an equal opportunity to access emergency information as those without disabilities. Id. (citing Loye v. Cnty. of Dakota, 625 F.3d 494, 499-501 (8th Cir. 2010)). Particularly relevant to this case, the plaintiffs in Brooklyn Center identified only one person with disabilities who was insufficiently warned of Hurricane Sandy’s approach because he did not have a computer, watch television, or listen to the radio in the days leading up to the storm. Brooklyn Center, 980 F. Supp. 2d at 655. The Court held it was not the individual’s disabilities that prevented him from receiving the City’s emergency information because “a person without disabilities who did not use a computer, watch television, or listen to the radio would also likely not have received information that a storm was approaching.” Id. at 655-56. The Court concluded the plaintiffs “provided no evidence that the means of communication employed by the City during an emergency are any less effective at reaching people with disabilities as those without.” Id. at 656. The same is true here. To the extent a deaf individual chooses not to take advantage of the various means by which the Governor communicates critical information during his press briefings – through closed captioning and demonstratives during the television broadcast and video with ASL interpretation and same-day transcripts available on the Governor’s official website – it is not the individual’s disabilities that prevent him from receiving the information because a person without disabilities who did not avail himself of these various means would similarly not receive such information.
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Notably, the court acknowledged that there was “certainly room for the City to improve on its plans with respect to the means of communicating emergency information,” citing as examples the fact that the City’s policy of using ASL interpretation at press conferences is “not memorialized in the City’s emergency plans themselves and is limited by its terms to the Mayor’s press conferences” and that the use of closed captioning in televised warnings is recommended but not required by the plans. Id. Nevertheless, in light of the “multiplicity of ways that the City communicates emergency information and lack of evidence that people with disabilities do not receive this information,” the court held “these shortcomings are not enough in themselves to constitute a violation of the ADA.” Id.
Judge Furman’s analysis applies with equal force here. The Governor employs a “multiplicity of ways” to ensure that deaf individuals can access the important information he conveys during his daily COVID-19 briefings. He provides live in-frame ASL interpretation of his briefings on his official website, which can also be viewed after the briefings are over on YouTube accessible through a link provided on the Governor’s website. The televised broadcasts of his briefings carried by all of the major networks and other cable television stations provide closed captioning. During the briefings, the Governor regularly uses PowerPoint slides containing charts, graphs, and text to convey visually all of the critical information discussed during the briefings. In fact, the PowerPoint slides used during the press briefings held on March 20, 2020 and April 15, 2020 prominently displayed in writing information about the stay-athome order and face mask requirement (see, supra, at 4-5) -- information that Plaintiffs Hellenbeck and Wildberger allege they did not learn about from watching the press briefings on television. See Hellenbeck Decl. ¶ 8 (stay-at-home order); Wildberger Decl. ¶ 7 (face mask requirement). Finally, the Governor posts on his site a same-day transcript of the briefings.
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Plaintiffs fail to allege that they are unable to access the internet on any device, including an iPad, smart phone, or smart TV, in order to watch the ASL translation or review the same-day transcript, or receive the most important information from the briefings on television conveyed through closed captioning and the Governor’s PowerPoint slides.7 Plaintiffs insist the Governor must provide in-frame ASL interpretation not just on his official website, but also as part of the live television broadcast. But they are entitled only to a reasonable accommodation under the ADA and Rehab Act, not a perfect accommodation. Based on the facts alleged in the complaint conceding the multiplicity of ways deaf individuals can access the critical information conveyed during the Governor’s COVID-19 press briefings, Plaintiffs fail to state a claim under Title II of the ADA or Section 504 of the Rehab Act. Brooklyn Center, 980 F. Supp. 2d at 655 (holding no violation of the ADA despite noting none of the City’s means of information distribution “is perfect”); see also Midgett, 254 F.3d at 849 (holding regulations implementing ADA do not contemplate perfection).
Even if the Court does not conclude based on the allegations in the complaint that the multiplicity of ways the Governor makes his COVID-19 press briefings accessible to the deaf constitute a reasonable accommodation under the ADA and Rehab Act, at a minimum the Court should hold Plaintiffs fall far short of meeting their burden on this motion of establishing a clear or substantial likelihood of success on the merits. Plaintiffs fail to cite a single case involving reasonable accommodation for the deaf in the context of press briefings during an emergency, let alone a case suggesting that a television broadcast with closed captioning and frequent use of visual demonstratives is legally insufficient and must be accompanied by in-frame ASL
7 To the extent the Plaintiffs assert that they cannot understand the closed captioning because it contains “frequent errors and omissions” (see Hallenbeck Decl. ¶ 5), they ignore the PowerPoint slides that convey the same information.
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interpretation. The only case addressing the issue from this Court, Brooklyn Center, compels the opposite conclusion – that the multiplicity of ways the Governor communicates the critical information from his press briefings are more than legally sufficient.
The only other case to address the means of government communication during an emergency under the ADA and Rehab Act similarly offers no support to Plaintiffs. In Loye, deaf plaintiffs were provided temporary housing after their neighborhood was contaminated with mercury. 625 F.3d at 495. The county held a number of large-group meetings with residents, including the plaintiffs, to convey important information about the decontamination process and associated health issues. Id. at 498. The plaintiffs alleged the county violated the ADA and Rehab Act, as well as the Minnesota Human Rights Act, because there was no ASL interpreter at some of the meetings, and at other meetings the ASL interpretation was “imperfect” because the interpreter spent time interpreting individual discussions instead of interpreting the large-group discussion. Id. The Eighth Circuit affirmed the district court’s grant of summary judgment for the county, holding in relevant part that the ADA and Rehab Act did not require the county to provide an ASL interpreter at every meeting because based on the interpretation services that were provided the county “effectively communicated” the relevant information to the plaintiffs at the large-group meetings. Id. at 499.
Because the Plaintiffs fail to cite “a single precedent” that stands for the proposition they ask the Court to adopt, they “have not come close to establishing a clear likelihood that the law entitles them to success on the merits of their” claim. Bergamaschi v. Cuomo, No. 20-cv- 2817 (CM), 2020 WL 1910754 at *15 (S.D.N.Y. April 20, 2020) (denying preliminary injunction application to require the state parole board to include a bond hearing as part of its parole
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revocation procedures in the absence of any precedent supporting such a requirement under the Due Process Clause).
II. PLAINTIFFS FAIL TO DEMONSTRATE IRREPARABLE HARM IN THE ABSENCE OF A MANDATORY INJUNCTION
Irreparable harm requires showing that an “actual and imminent” injury will occur that “cannot be remedied if a court waits until the end of trial to resolve the harm.” Singas Famous Pizza Brands Corp. v. New York Adver. LLC, 468 F. App’x 43, 45 (2d Cir. 2012); accord Freedom Holdings, Inc. v. Spitzer, 408 F.3d 112, 115 (2d Cir. 2005). In evaluating whether the plaintiff will suffer imminent harm, “the court must actually consider the injury the plaintiff will suffer if he or she loses on the preliminary injunction but ultimately prevails on the merits . . . .” Weinstein v. Krumpter, 120 F. Supp. 3d 289, 297 (E.D.N.Y. 2015) (quotation omitted). “At the preliminary injunction stage, the only cognizable harms are those that cannot be remedied at the end of trial if the movant were to prevail.” Freedom Holdings, 408 F.3d at 115.
Plaintiffs assert they will suffer irreparable harm pending the resolution of this case unless the Governor is required to provide in-frame ASL interpretation during the television broadcast of the COVID-19 press briefings because they will be unaware of critical information about fighting the virus, including how to stay safe and healthy, and “may face consequences” as a result. Plaintiffs’ MOL at 13. This argument assumes that Plaintiffs are incapable of obtaining this critical information from the Governor’s press briefings absent in-frame ASL interpretation during the television broadcast. As discussed above, supra Point I.A, this assumption is without factual basis in the complaint. Plaintiffs Martinez and Wildberger concede they have internet access and can therefore watch the press briefings on the Governor’s official website with inframe ASL interpretation. Plaintiffs Nguyen and Hallenbeck allegedly do not own or use a computer, but those allegations without more do not reasonably infer that they cannot access the
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internet. There are many devices other than a computer, including an iPad, smart phone, and smart TV, that will enable a user to access the internet and thereby provide access to the Governor’s press briefings on his official website with in-frame ASL interpretation. Plaintiffs do not need a preliminary injunction to avoid the alleged harm – they just need to watch the briefings online instead of on television. Plaintiffs’ allegations and declarations offer no reason why they cannot do so right now in order to obtain the critical information they allegedly need to avoid irreparable harm even in the absence of a preliminary injunction.
Because Plaintiffs’ allegations and testimony fail to support a reasonable inference that they cannot access the critical information conveyed at the press briefings given the current availability of ASL interpretation online, they will not suffer any “actual and imminent” harm in the absence of a preliminary injunction. Singas Famous Pizza Brands Corp., 468 F. App’x at 45; accord Freedom Holdings, 408 F.3d at 115.
III. THE BALANCE OF EQUITIES DOES NOT TIP IN PLAINTIFFS’ FAVOR
A court may award preliminary injunctive relief only if “the ‘public interest would not be disserved’ by the issuance of a preliminary injunction.” Salinger v. Colting, 607 F.3d 68, 80 (2d Cir. 2010) (quoting eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006)); see also Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 24 (2008) (“In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction.”) (quoting Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982)).
Plaintiffs assert without elaboration that they suffer “immense hardship” because they and other deaf individuals “need to take multiple extra steps to access the live ASL stream of the press briefings, and many do not even know this stream is available or have internet access” or
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“have the skill or technology to access this online stream.” Plaintiffs’ MOL at 14. None of this finds any support in the complaint or Plaintiffs’ declarations. To the contrary, Plaintiff Martinez has no difficulty searching online for videos on social media platforms with ASL interpretation of the information covered in the Governor’s press briefings. Martinez Decl. ¶ 7. Plaintiff Wildberger attests that she has “access to the internet.” Wildberger Decl. ¶ 6. While she claims (inconsistently) both that she has not been able to “successfully stream the live ASL interpretation offered on the Governor’s website” and that she has “found the ASL interpreter on the Governor’s website to be frequently unavailable,” she does not claim that she lacks the skill or technology to access the Governor’s website. Id. Plaintiffs Nguyen and Hallenbeck testify they do not own or use a computer (Hallenbeck Decl. ¶ 6; Nguyen Decl. ¶ 5), but neither states that they are unable to access the internet on any other device such as an iPad, smart phone, or smart TV, or that they lack the skill or technology to do so.
Accordingly, the balance of the equities tips against having this Court issue a preliminary injunction that would change the status quo; at present, Plaintiffs and other deaf individuals can avail themselves of a multiplicity of ways to access the important information conveyed during the Governor’s press briefings, including through ASL interpretation and same-day transcripts on the Governor’s website and closed captioning and PowerPoint slides on the television broadcast.
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CONCLUSION

For the reasons set forth above, the Governor respectfully requests that the Court deny

Plaintiffs’ motion for a preliminary injunction in its entirety and grant such other and further

relief as the Court deems just and proper.

Dated: New York, New York May 4, 2020

LETITIA JAMES Attorney General State of New York

By: /s/ Andrew Amer Andrew Amer Special Litigation Counsel 28 Liberty Street New York, New York 10005 (212) 416-6127 andrew.amer@ag.ny.gov
Attorney for Defendant

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 Case 1:20-cv-03338-VEC Document 17 Filed 05/07/20 Page 1 of 13

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
DENNIS MARTINEZ, DOUGLAS NGUYEN, JAMES HALLENBECK, JILL WILDBERGER, and DISABILITY RIGHTS NEW YORK,
Plaintiffs,
-against-
ANDREW CUOMO, in his official capacity as Governor of New York State,
Defendant.

CIVIL CASE NO. 1:20-CV-03338
REPLY MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION
FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

DISABILITY RIGHTS NEW YORK Jessica Barlow, Esq. Marc Fliedner, Esq.
25 Chapel Street, Suite 1005 Brooklyn, NY 11201 (518) 512-4841
Attorneys for Plaintiffs
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Table of Contents Procedural Status ............................................................................................................................ 1 Preliminary Statement..................................................................................................................... 1 Statement of Facts........................................................................................................................... 2 Argument ........................................................................................................................................ 4
I. The Accommodations Offered by Governor Cuomo are Not Sufficient Because they are not Accessible to Plaintiffs ......................................................................................................... 4 II. The Harm to Plaintiffs Absent Relief is Irreparable and Ongoing, and the Requested Relief Advances the Public Interest ............................................................................................ 8 Conclusion .................................................................................................................................... 10
Table of Authorities Cases Brooklyn Ctr. for Indep. Of Disabled v. Bloomberg, 980 F. Supp. 2d 588 (S.D.N.Y. 2013)..... 6, 7 Disabled in Action v. Bd. of Elections in City of New York, 752 F.3d 189 (2d Cir. 2014). 1, 4, 5, 7 Disabled in Action v. City of New York, No. 2020 WL 550612, at *5 (S.D.N.Y. Feb. 4, 2020).... 7 Henrietta D. v. Bloomberg, 331 F.3d 261 (2d Cit. 2003) ............................................................... 4 Innes v. Bd. of Regents of Univ. Sys. of Maryland, 29 F. Supp. 3d 566, 580 (D. Md. 2014) ......... 6 Jones v. Nat'l Conference of Bar Examiners, 801 F.Supp.2d 270 (D. Vt. 2011) ........................... 5 Shotz v. Cates, 256 F.3d 1077 (11th Cir. 2001) .............................................................................. 1 Regulations 28 C.F.R. § 35.104(2) ..................................................................................................................... 5 28 C.F.R. § 35.164 .......................................................................................................................... 5
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Case 1:20-cv-03338-VEC Document 17 Filed 05/07/20 Page 3 of 13 28. C.F. R. § 35.160 ........................................................................................................................ 4 Court Documents Hallenbeck Dec. .............................................................................................................................. 2 Martinez Dec................................................................................................................................... 3 Nguyen Dec. ............................................................................................................................... 1, 2 Wildberger Dec. .......................................................................................................................... 2, 3
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Procedural Status On April 29, 2020, Plaintiffs filed a Motion for Temporary Restraining Order and Mandatory Preliminary Injunction, Dkt. 4, in this matter requesting that the Court immediately order Governor Cuomo to provide an in-frame American Sign Language interpreter at his televised briefings on the COVID-19 pandemic. On May 5, 2020, the parties participated in a telephonic oral argument regarding the pending motions. Following the argument, this matter was referred to Magistrate Judge Katherine Parker for a settlement conference. Dkt. 15. On May 6, 2020, Judge Parker scheduled a settlement conference for May 19, 2020. Dkt. 16. In light of the delay in the scheduling of the settlement conference and the emergent nature of Plaintiffs’ requested relief, Plaintiffs’ submit this reply brief and respectfully renew their request for the immediate issuance of a temporary restraining order and subsequent mandatory preliminary injunction.
Preliminary Statement This action and Plaintiffs’ motion for a temporary restraining order and preliminary injunction seek to remedy Defendant Governor Cuomo’s failure to provide an in-frame American Sign Language (“ASL”) interpreter during his televised press briefings, thus depriving Plaintiffs of effective communication in violation of the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act of 1973 (“Section 504”). Since the onset of the COVID-19 pandemic, Governor Cuomo has held daily briefings for the public and press. As accommodations, Governor Cuomo provides closed captioning and an online ASL interpreted stream to accompany his briefings. Online ASL interpretation and closed-captioning and other written transcriptions are not accessible formats for Plaintiffs. Plaintiffs have requested that Governor Cuomo, like the 49 other Governors, provide an in-frame
1

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ASL interpreter during his televised briefings in order to provide them with effective communication.
Statement of Facts The facts are as alleged in the Complaint. Dkt. 1. In addition, the facts are supplemented here in order to amplify and remove any doubt regarding Plaintiffs’ inability to access Governor Cuomo’s press briefings through means presently available.1 Plaintiff Douglas Nguyen is deaf and communicates only using ASL. Nguyen Dec. ¶¶ 1, 3. Plaintiff Nguyen does not read or write in English. Nguyen Dec. ¶ 4. Plaintiff Nguyen cannot read closed captioning, transcripts, PowerPoints, or any other written transcription of Governor Cuomo’s press briefings. Nguyen Dec. ¶ 5. Plaintiff Nguyen does not use any type of internet capable device. Nguyen Dec. ¶ 6. Plaintiff Nguyen cannot access Governor Cuomo’s briefings through any of the current accommodations being provided. Nguyen Dec. ¶ 7. Plaintiff Nguyen could access Governor Cuomo’s briefings if televised in-frame ASL interpretation were provided as a reasonable accommodation. Nguyen Dec. ¶ 8. Plaintiff James Hallenbeck is deaf and his primary language is ASL. Hallenbeck Dec. ¶¶ 1, 2. Plaintiff Hallenbeck also has cerebral palsy, which puts him at an increased risk of complications or death from COVID-19. Hallenbeck Dec. ¶ 10. He is able to understand some written English but is not fluent. Hallenbeck Dec. ¶ 3. Plaintiff Hallenbeck cannot read closed captioning, transcripts, PowerPoints, or any other written account of Governor Cuomo’s press
1 While Plaintiffs are glad to supplement the record for clarity and comprehension, exhaustion of every possible avenue of inaccessibility is unnecessary. “Plaintiffs need not…prove that they have been disenfranchised or otherwise ‘completely prevented from enjoying a service, program, or activity’ to establish discrimination under Section 504 or Title II.” Disabled in Action v. Bd. of Elections in City of New York, 752 F.3d 189, 198 (2d Cir. 2014) (quoting Shotz v. Cates, 256 F.3d 1077, 1080 (11th Cir.2001) (“A violation of Title II, however, does not occur only when a disabled person is completely prevented from enjoying a service, program, or activity.”)).
2

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briefings. Hallenbeck Dec. ¶ 4. Plaintiff Hallenbeck has internet access in his home solely for use through a webcam that he uses only with his videophone. Hallenbeck Dec. ¶ 5. He does not own any internet capable devices besides his videophone. Hallenbeck Dec. ¶ 6. Plaintiff Hallenbeck cannot access websites through his videophone. Hallenbeck Dec. ¶ 7. Plaintiff Hallenbeck cannot access Governor Cuomo’s briefings through any of the means currently available. Hallenbeck Dec. ¶ 8. He could access Governor Cuomo’s briefings if televised in-frame ASL interpretation were provided as a reasonable accommodation. Hallenbeck Dec. ¶ 9.
Plaintiff Jill Wildberger is deaf and ASL is her preferred and primary language. Wildberger Dec. ¶¶ 1, 2. She has a learning disability that makes it difficult for her to read and write English. Wildberger Dec. ¶ 3. Plaintiff Wildberger cannot read closed captioning, transcripts, PowerPoints, or any other written account of Governor Cuomo’s press briefings due to her learning disability and her difficulty reading and writing English. Wildberger Dec. ¶ 4. Plaintiff Wildberger does have access to the internet and owns internet capable devices such as a smartphone. Wildberger Dec. ¶ 5. However, because of her learning disability, she does not know how to access Governor Cuomo’s press briefings online. Wildberger Dec. ¶ 6. Plaintiff Wildberger tried to access Governor Cuomo’s press briefings online but could not understand how to do so effectively. Wildberger Dec. ¶ 7. Plaintiff Wildberger cannot access Governor Cuomo’s briefings through any of the means currently available. Wildberger Dec. ¶ 8. She could access Governor Cuomo’s briefings if televised in-frame ASL interpretation were provided as a reasonable accommodation. Wildberger Dec. ¶ 9.
Plaintiff Martinez is deaf, and ASL is his primary and preferred language. Martinez Dec. ¶¶ 1, 4. Plaintiff Martinez was born in the United States, but was raised primarily in Colombia where Spanish and Colombian sign language were his first languages. Martinez Dec. ¶¶ 2, 3.
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Plaintiff Martinez works as a Deaf Service Advocate at the Harlem Living Center. Martinez Dec. ¶ 5. In his job, a number of his clients are deaf and solely use ASL to communicate. Martinez Dec. ¶ 6. His clients rely on him as a source of timely and up-to-date information regarding the COVID-19 pandemic. Martinez Dec. ¶ 7. Plaintiff Martinez cannot consistently access Governor Cuomo’s briefings through any of the means currently available. Martinez Dec. ¶ 8. He could access Governor Cuomo’s briefings if televised in-frame ASL interpretation were provided as a reasonable accommodation. Martinez Dec. ¶ 9.
Argument I. The Accommodations Offered by Governor Cuomo are Not Sufficient Because
they are not Accessible to Plaintiffs Governor Cuomo’s opposition to Plaintiffs’ motion centers on the argument that if there are reasonable accommodations being provided to some deaf New Yorkers, such as an online ASL stream and closed captioning, then the Plaintiffs and all deaf New Yorkers have been provided with effective communication. Dkt. 13, p. 24 (“The Governor employs a ‘multiplicity of ways’’ to ensure that deaf individuals can access the important information he conveys during his daily COVID-19 briefings.”). Governor Cuomo’s position is wrong. The implementing regulations of the ADA state that “[i]n order to be effective, auxiliary aids and services must be provided in accessible formats.” 28. C.F. R. § 35.160 (emphasis added). Plaintiffs are not required to show that every level of access is a sheer impossibility, but rather that they are not accommodated because they have not been provided meaningful access: Plaintiffs need not…prove that they have been disenfranchised or otherwise “completely prevented from enjoying a service, program, or activity” to establish discrimination under Section 504 or Title II. Rather, plaintiffs must show that [defendant] has failed to “provide[ ] [them] with meaningful access to the benefit that [it] offers.”
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Disabled in Action v. Bd. of Elections in City of New York, 752 F.3d 189, 198–99 (2d Cir. 2014) (internal citations omitted) (emphasis added) (citing Henrietta D. v. Bloomberg, 331 F.3d 261, 273 (2d Cit. 2003)).
In the opposition memorandum, Governor Cuomo acknowledges this standard. He states that the “‘relevant inquiry’ [] focuses on meaningful access, asking ‘not whether benefits available to persons with disability and to others are actually equal, but whether those with disabilities are as a practical matter able to access benefits to which they are legally entitled.” Dkt. 13, p. 21 (emphasis added). It is fact that Plaintiffs are not, as a practical matter, able to access Governor Cuomo’s press briefings. Plaintiffs are legally entitled to this access, and Defendant’s failure to afford such access is in clear violation of the ADA. See 28. C.F. R. § 35.160 (meaningful access requirement).
In furtherance of his argument, Governor Cuomo states that Plaintiffs “are entitled only to a reasonable accommodation under the ADA and Rehab Act, not a perfect accommodation.” Dkt. 1, p. 25 (emphasis in original). This argument is misplaced. Plaintiffs do not disagree that closed captioning and an online ASL stream are accommodations, and that those accommodations are reasonable. However, as Plaintiffs noted above, the standard is not reasonableness, it is accessibility. “Reasonable” in the context of the ADA reasonable accommodation provisions simply means accommodations that do not impose an undue burden on the provider, or fundamentally alter the provider’s programs and services. 28 C.F.R. § 35.164. Governor Cuomo distorts this concept by arguing that once any reasonable accommodation is made, the provider of the accommodation is relieved from further obligations. Reasonableness does not equate to accessibility, and accommodations that Plaintiffs cannot use do not provide them with the effective communication to which they are entitled under well-established law.
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For example, braille may be considered a reasonable accommodation for some individuals who are blind, 28 C.F.R. § 35.104(2), but no one would argue that braille reasonably accommodates every blind individual regardless of whether or not they read braille. Similarly, Governor Cuomo cannot proclaim that because some individuals who are deaf are being accommodated, that all individuals who are deaf are being accommodated. See Disabled in Action v. Bd. of Elections in City of New York, 752 F.3d 189, 201 (2d Cir. 2014) (“While we recognize that reassigning voters may constitute a reasonable accommodation under some circumstances, there is nothing in the record to show that this accommodation provides meaningful access in the circumstances here….[W]hile the policy of reassigning voters to accessible polling sites could theoretically constitute a reasonable accommodation, there is nothing in the record to support that it provides meaningful access to individuals with disabilities.”) (internal citations omitted); see also Jones v. Nat'l Conference of Bar Examiners, 801 F.Supp.2d 270, 285, 289 (D. Vt. 2011) (“It cannot reasonably be disputed that what renders [a service] “accessible” to one disabled individual may not render it “accessible” to another….Rather than make an individualized inquiry regarding Plaintiff's needs, Defendant has taken the position that its menu of accommodations is “reasonable” even though the “menu” in question is designed only for the visually impaired….For this reason, the court concludes that Defendant's extensive evidence regarding accommodations that were deemed appropriate many years ago, or for different individuals with different needs, constitutes an inappropriate benchmark for what must be offered” to Plaintiff.); Innes v. Bd. of Regents of Univ. Sys. of Maryland, 29 F. Supp. 3d 566, 580 (D. Md. 2014) (in denying defendant’s motion to dismiss, the Court notes that it is compelling that “Plaintiffs cite several examples [] to show that the ‘other methods’ of captioning Defendants have offered do not yield effective communication.”).
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Plaintiffs have made it abundantly clear that they cannot access any of the reasonable accommodations currently offered, and have suggested a simple and easily-implemented solution.2
In the case relied on most heavily by Governor Cuomo, Brooklyn Ctr. for Indep. Of Disabled v. Bloomberg, 980 F. Supp. 2d 588, 630-31 (S.D.N.Y. 2013) (“BCID”), the Court specifically states the necessity to provide multiple accommodations to meet the needs of people with disabilities:
Because people with disabilities have diverse communication needs—for example, those who are blind may require Braille or oral communication and those who are deaf may require visual communication or translation into American Sign Language—reaching people with special needs often requires the use of multiple modes of communication. In BCID, the Court found the defendant’s means of communicating with individuals with disabilities during an emergency to be sufficient precisely because a wide variety of methods, including ASL interpretation in-frame during press conferences, were employed. The Court specifically instructed defendant to inform television stations that "[i]f public briefings have a sign language interpreter, stations should include them in the frame.” Id. at 631, 655. If anything, this precedent supports Plaintiffs’ position that, in order to provide accommodations that are accessible to as many individuals with disabilities as possible, multiple accommodations are often necessary. Plaintiffs have shown that Governor Cuomo has failed to provide them with meaningful access through his refusal to modify the existing practices to make them accessible to Plaintiffs.
2 Contrary to Governor Cuomo’s statements, Dkt. 13, p. 23, Plaintiffs do not “choose” not to take advantage of the accommodations currently available. Rather, they are actually unable to utilize them. ASL and English are entirely different languages, and the ADA provides protection to individuals, like Plaintiffs, who utilize ASL as their means of primary communicate.
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See Disabled in Action v. City of New York, No. 16-CV-08354 (VEC), 2020 WL 550612, at *5 (S.D.N.Y. Feb. 4, 2020) (citing Disabled in Action v. Bd. Of Elections in City of New York, 752 F.3d 189, 199 (2d Cir. 2014)). Plaintiffs cannot access Governor Cuomo’s briefings without an in-frame ASL interpreter, and therefore have demonstrated a likelihood of success on the merits.
II. The Harm to Plaintiffs Absent Relief is Irreparable and Ongoing, and the Requested Relief Advances the Public Interest
This suit is the result of one of the most significant calls to action DRNY has ever experienced. Dkt. 4-2, ¶¶ 10, 20. Individuals who communicate solely using ASL, like the rest of us, continue to fear for their safety and the safety of their loved ones during the most consequential public health emergency of our lifetimes. They seek information that will have a daily impact on their physical and emotional safety. Governor Cuomo’s decision to conduct daily press briefings reflects his intent to provide vital and constantly changing information to all New Yorkers as soon as possible.
It is imperative that all members of the public have access to this information as quickly and completely as possible. Governor Cuomo’s message has consistently been that all New Yorkers must work together to ensure that government-mandated efforts, including maintenance of social distancing and use of available personal protective equipment, are as effective as possible in order to save lives. Without access to Governor Cuomo’s briefings, Plaintiffs are subject to irreparable and imminent harm. Without immediate implementation of the relief they seek, Plaintiffs and many deaf New Yorkers will continue to be denied timely access to this critical information, thereby unnecessarily exposing themselves and others to the safety risks associated with the COVID-19 infection and transmission.
Plaintiffs acknowledge that there is not yet a case which explicitly holds that an in-frame ASL interpreter must accompany a Governor’s important press briefings. That said, the absence
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of case law on this issue is unsurprising. The need for an in-frame ASL interpreter is so well established that 49 out of 50 Governors and the Mayor of New York City have provided this necessary accommodation without being urged by disability rights advocates to do so, and without the need for litigation.
Governor Cuomo also acknowledges that there is little case law on this issue. Dkt. 13, p. 22 (“[C]ases addressing the need for governments to provide reasonable accommodation when communicating with the public during emergencies are few and far between”). Plaintiffs have, however, cited a myriad of cases which clearly state that an individual with a disability is entitled to effective communication in an accessible format. Precedent is created when the opportunity presents itself to the court and the court finds that it is in the best position to make a clear statement on the law. The law here demands that accommodations be accessible to people with disabilities, and only a court has the authority to order Governor Cuomo to provide what the law requires. This is not a close case centered on an emerging issue of law – this is a case where the Governor of a state in crisis is flagrantly and knowingly ignoring well-established federal law. The Plaintiffs have shown that they cannot access the accommodations that Governor Cuomo has offered, and they are not in a position to wait for another court to create precedent so they have an additional citation.
Plaintiffs have made every effort to resolve this matter without the need for court intervention. In the coming days, Governor Cuomo will not only continue to update New Yorkers regarding the daily numbers of COVID-19 diagnoses and deaths reported in various regions of the state, but will also provide directives regarding the logistics by which we will begin to safely resume traditional social and business interactions. This will include critical information about New Yorkers’ access to both virus and anti-body testing, access to businesses
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and public services, travel restrictions, and mental health support. Plaintiffs ask that they not be
categorically excluded from critical information simply because they are deaf.
Access to this critical information must be provided by Governor Cuomo through an in-
frame ASL interpreter now. The entitlement is clear, and the accommodation requested is neither
costly nor difficult to implement. Plaintiffs recognize that courts are understandably hesitant to
grant preliminary relief, and that it should only be done in rare circumstances. This case presents
one of those rare circumstances. Plaintiffs request that Governor Cuomo be immediately ordered
to have an in-frame sign language interpreter at his next televised press briefing, and at all
briefings thereafter. The potential harm of not doing so far outweighs the de minimus cost of
providing in-frame interpreters.
Conclusion
For all the above reasons, in addition to the reasons stated in Plaintiffs’ Memorandum in
Support of their Motion, and by counsel at oral argument, this Court should issue a temporary
restraining order and subsequent preliminary injunction granting Plaintiffs’ request for the
reasonable accommodation of an in-frame ASL interpreter during Governor Cuomo’s daily
briefings.
Dated: May 7, 2020 Brooklyn, New York By: /S/ Jessica Barlow____ JESSICA BARLOW JB2194 MARC FLIEDNER MF4201 DISABILITY RIGHTS NEW YORK Attorneys for Plaintiffs 25 Chapel Street, Suite 1005 Brooklyn, NY 11201 Phone: 518-512-4841 Fax: 518-427-6561 (not for service)
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Case 1:20-cv-03338-VEC Document 17-1 Filed 05/07/20 Page 1 of 11

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
DENNIS MARTINEZ, DOUGLAS NGUYEN, JAMES HALLENBECK, JILL WILDBERGER, and DISABILITY RIGHTS NEW YORK,
Plaintiffs,
-against-
ANDREW M. CUOMO, in his official capacity as Governor of New York State
Defendant.

CASE NO: 1:20-CV-03338 (VEC) AFFIRMATION

Marc Fliedner, Esq., an attorney admitted to practice in New York State and before this Court, hereby affirms under penalty of perjury:
1. I am co-counsel for Plaintiffs and as such have been working in pursuit of an in-frame American Sign Language (“ASL”) interpreter during Governor Cuomo’s televised briefings since March 2020.
2. Plaintiffs attach the following documents in support of their Reply Memorandum of Law in Support of Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction: • Declaration of Dennis Martinez • Declaration of Douglas Nguyen • Declaration of James Hallenbeck • Declaration of Jill Wildberger

Case 1:20-cv-03338-VEC Document 17-1 Filed 05/07/20 Page 2 of 11 3. I declare that, to the best of my knowledge and belief, the information herein is true,
correct, and complete Dated: May 7 2020 Marc Fliedner, Esq.

Case 1:20-cv-03338-VEC Document 17-1 Filed 05/07/20 Page 3 of 11

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
DENNIS MARTINEZ, DOUGLAS NGUYEN, JAMES HALLENBECK, JILL WILDBERGER, and DISABILITY RIGHTS NEW YORK,
Plaintiffs,
-against-

CASE NO: 1:20-CV-03338
DECLARATION OF DENNIS MARTINEZ

ANDREW M. CUOMO, in his official capacity as Governor of New York State
Defendant.

I, Dennis Martinez, Plaintiff, do hereby declare: 1. I am a deaf person. 2. I was born in the United States but was raised primarily in Colombia. 3. Spanish and Colombian sign language were my first languages. 4. ASL is now my primary and preferred language. 5. I work as a Deaf Service Advocate at the Harlem Independent Living Center. 6. In my job, a number of my clients are deaf and solely use ASL to communicate. 7. My clients rely on me as a source of timely and up-to-date information regarding the COVID-19 pandemic. 8. I cannot consistently access Governor Cuomo’s briefings through any of the means currently available. 9. I could access Governor Cuomo’s briefings if televised in-frame ASL interpretation were provided as a reasonable accommodation.
1

Case 1:20-cv-03338-VEC Document 17-1 Filed 05/07/20 Page 4 of 11 I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on May 6, 2020 Dennis Martinez
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
DENNIS MARTINEZ, DOUGLAS NGUYEN, JAMES HALLENBECK, JILL WILDBERGER, and DISABILITY RIGHTS NEW YORK,
Plaintiffs,
-against-

CASE NO: 1:20-CV-03338
DECLARATION OF DOUGLAS NGUYEN

ANDREW M. CUOMO, in his official capacity as Governor of New York State
Defendant.

I, Douglas Nguyen, Plaintiff, do hereby declare: 1. I am deaf. 2. I was born in Vietnam and learned American Sign Language (“ASL”) as a teenager. 3. ASL is my only means of communication. 4. I cannot read or write in English. 5. I cannot read closed captioning, transcripts, PowerPoints, or any other written account of Governor Cuomo’s press briefings. 6. I do not use any type of internet capable device. 7. I cannot access Governor Cuomo’s briefings through any of the means currently available. 8. I could access Governor Cuomo’s briefings if televised ASL interpretation were provided as a reasonable accommodation.

1

Case 1:20-cv-03338-VEC Document 17-1 Filed 05/07/20 Page 6 of 11 I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.
2

Case 1:20-cv-03338-VEC Document 17-1 Filed 05/07/20 Page 7 of 11

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
DENNIS MARTINEZ, DOUGLAS NGUYEN, JAMES HALLENBECK, JILL WILDBERGER, and DISABILITY RIGHTS NEW YORK,
Plaintiffs,
-against-

CASE NO: 1:20-CV-03338
DECLARATION OF JAMES HALLENBECK

ANDREW M. CUOMO, in his official capacity as Governor of New York State
Defendant.

I, James Hallenbeck, Plaintiff, do hereby declare: 1. I am deaf. 2. My primary language is ASL. 3. I am able to understand some written English but am not fluent. 4. I cannot read closed captioning, transcripts, PowerPoints, or any other written account of Governor Cuomo’s press briefings. 5. I have internet access in my home solely for use through a webcam that I use only with my videophone. 6. I do not own any internet capable devices besides my videophone. 7. I cannot access websites through my videophone. 8. I cannot access Governor Cuomo’s briefings through any of the means currently available. 9. I could access Governor Cuomo’s briefings if televised in-frame ASL interpretation were provided as a reasonable accommodation. 1

Case 1:20-cv-03338-VEC Document 17-1 Filed 05/07/20 Page 8 of 11 10. I have cerebral palsy. This medical condition may put me at a higher risk of serious
infection if I contract COVID-19. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on May 6, 2020 /s/ James Hallenbeck James Hallenbeck
2

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
DENNIS MARTINEZ, DOUGLAS NGUYEN, JAMES HALLENBECK, JILL WILDBERGER, and DISABILITY RIGHTS NEW YORK,
Plaintiffs,
-against-

CASE NO: 1:20-CV-03338 ATTORNEY AFFIRMATION

ANDREW M. CUOMO, in his official capacity as Governor of New York State
Defendant.

Affirmation of Matthew Steele
I, Matthew Steele, depose and state that: 1. I am an attorney licensed to practice law in the State of New York. 2. I assisted in the preparation of the declaration of Plaintiff James Hallenbeck. 3. I read the contents of Mr. Hallenbeck’s declaration to him on May 6, 2020 and confirmed
that the contents thereof are true and accurate. 4. Due to operational challenges posed by the coronavirus pandemic, I am unable to obtain the
original signature of Mr. Hallenbeck by the Court’s deadline of May 8, 2020. 5. Mr. Hallenbeck has authorized the submission of his declaration with an electronic
signature. Respectfully submitted, DISABILITY RIGHTS NEW YORK By: Matthew Steele

Case 1:20-cv-03338-VEC Document 17-1 Filed 05/07/20 Page 10 of 11

Case 1:20-cv-03338-VEC Document 17-1 Filed 05/07/20 Page 11 of 11

 
 Case 1:20-cv-03338-VEC Document 21 Filed 05/12/20 Page 1 of 14

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

-------------------------------------------------------------- X

DENNIS MARTINEZ, DOUGLAS NGUYEN, :

JAMES HALLENBECK, JILL

:

WILDBERGER, and DISABILITY RIGHTS :

NEW YORK

:

:

Plaintiffs, :

:

-against-

:

:

:

ANDREW CUOMO, IN HIS OFFICIAL

:

CAPACITY AS GOVERNOR OF NEW YORK :

STATE,

:

:

Defendant. :

-------------------------------------------------------------- X

VALERIE CAPRONI, United States District Judge:

USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC #: DATE FILED: 5/12/2020
20-CV-3338 (VEC) OPINION AND ORDER

In the middle of the most significant health crisis this country has experienced in decades,

this case focuses on a subset of New Yorkers who have been effectively, if unintentionally,

excluded from obtaining up-to-date information regarding the crisis from their Governor.

Governor Andrew Cuomo’s failure to provide in-frame American Sign Language (“ASL”)

interpretation during his daily press briefings regarding the COVID-19 pandemic has excluded

certain deaf New Yorkers from the benefits of those briefings. Plaintiffs, four deaf individuals

and Disability Rights New York (“DRNY”), argue that Cuomo’s failure deprives them of

effective communication in violation of the Americans with Disabilities Act (“ADA”) and

Section 504 of the Rehabilitation Act (“RA”). Specifically, Plaintiffs argue that although videos

of ASL interpretations of Governor Cuomo’s briefings are available through a link on the

Governor’s website, because they lack internet access, they cannot view the videos. Similarly,

while some of the channels that broadcast Governor Cuomo’s live briefings include closed

captioning, Plaintiffs argue that the closed captions do not accommodate them because they

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cannot read English at all or well enough to understand the information. As a result, Plaintiffs seek a mandatory preliminary injunction to require Governor Cuomo to provide an in-frame ASL interpreter during televised broadcast briefings. The Court GRANTED Plaintiffs’ motion for a preliminary injunction on May 11, 2020. Dkt. 18. This opinion explains the Court’s rationale.
BACKGROUND For the past two months, the COVID-19 pandemic has devastated New York City; schools have closed, businesses have closed, and social distancing requirements have been instituted. COVID-19 has disproportionately affected New Yorkers; confirmed COVID-19 cases are four times greater in New York than in any other state, and more than one third of all domestic COVID-19 related deaths have occurred in New York. Complaint (“Compl.”), Dkt. 1 ¶ 2. In the face of such unprecedented uncertainty, danger, and fear, New Yorkers have looked to Governor Cuomo for guidance. On or about March 1, 2020, Governor Cuomo began holding daily, televised press briefings regarding the COVID-19 outbreak in New York. Compl. ¶ 30. Governor Cuomo’s briefings typically last between thirty and sixty minutes and include critical information concerning the health crisis. Id. ¶¶ 31, 35. Specifically, the briefings have included information regarding the number of confirmed COVID-19 cases in New York, the closing of schools and non-essential businesses, the stay-at-home order, the availability of testing, social distancing requirements, the requirement to wear a mask, rent suspension, the coordination of local, state, and federal government emergency response systems, and other information about how New Yorkers can stay safe and help limit the spread of the virus. See id. ¶ 35. The briefings have also featured government officials from the New York State Department of Health, New York State Division of Budget, and the Army National Guard. Id. ¶ 32. On April 13, 2020, Governor Cuomo hosted a multi-state press briefing with the Governors of New Jersey, Delaware,
2

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Connecticut, Rhode Island, Pennsylvania, and Massachusetts, during which he announced the “Multi-State Council to Get People Back to Work and Restore the Economy.” Id. ¶ 47. Local and major news networks, including ABC, CBS, NBC, and Fox, have broadcast Governor Cuomo’s briefings live to a national audience. Id. ¶ 34. Governor Cuomo’s daily briefings have been widely touted as providing reliable and up-to-date information; Cuomo has emerged as a prominent and steady voice in a time of crisis.1
i. Plaintiffs’ Backgrounds Plaintiffs are four deaf individuals and DRNY, a non-profit organization that advocates
on behalf of individuals with disabilities. Plaintiff Dennis Martinez is deaf and his primary language is ASL. Id. ¶¶ 50-51. Martinez works as a Deaf Service Advocate at the Harlem Living Center, where he provides up-to-date information regarding the COVID-19 pandemic to deaf clients. Id. ¶¶ 51, 55. Martinez is unable to understand Governor Cuomo’s live briefings due to the lack of an ASL interpreter.2 Id. ¶ 54.
Plaintiff Douglas Nguyen is deaf and communicates only through ASL. Id. ¶¶ 59-60. Mr. Nguyen cannot read, write, or understand English. Id. ¶ 61. Mr. Nguyen does not own a computer and does not have access to the internet. Id. ¶ 62. Mr. Nguyen has watched Governor

1

See Jesse McKinley et al., How Cuomo, Once on Sidelines, Became the Politician of the Moment, N.Y.

Times (Mar. 24, 2020), https://www.nytimes.com/2020/03/24/nyregion/governor-andrew-cuomo-coronavirus.html.

According to news reports, even President Trump – who has direct access to the country’s most knowledgeable

medical experts – views Governor Cuomo’s briefings as “must-see-TV.” See Katie Rogers et al., Home Alone at the

White House: A Sour President, With TV His Constant Companion, N.Y. Times (April 23, 2020),

https://www.nytimes.com/2020/04/23/us/politics/coronavirus-trump.html.

2

Neither the complaint nor the reply brief with its accompanying declarations clarify the exact state of

Martinez’s access to the internet. The complaint states that he “has to seek out videos on social media platforms

with ASL interpretation,” Compl. ¶ 58, which suggests that he has some internet access. The supplemental

declaration submitted with the reply brief states, however, that he “cannot consistently access Governor Cuomo’s

briefings through any of the means currently available.” Martinez Decl., Dkt 17-1 ¶ 7. If Martinez were the only

Plaintiff that lack of clarity could be problematic. Because he is not, the lack of clarity is not dispositive.

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Cuomo’s daily briefings on television but cannot understand them because there is no in-frame ASL interpreter. Id. ¶ 64.
Plaintiff James Hallenbeck is deaf and his primary language is ASL. Id. ¶¶ 67-68. Mr. Hallenbeck is able to understand some written English, but he is not fluent. Id. ¶ 68. Mr. Hallenbeck cannot read closed captioning, transcripts, PowerPoint slides, or any other written account of Governor Cuomo’s press briefings. Hallenbeck Decl., Dkt. 17-1 ¶ 4. Mr. Hallenbeck does not own a computer and cannot access the Governor’s briefings online. Compl. ¶ 71; Hallenbeck Decl., ¶¶ 5-8.
Plaintiff Jill Wildberger is deaf and her primary language is ASL. Compl. ¶¶ 74-75. Ms. Wildberger has a learning disability that makes it difficult for her to read English. Id. ¶¶ 76, 78, 79. Ms. Wildberger cannot read closed captioning, transcripts, PowerPoint slides, or any other written account of Governor Cuomo’s press briefings. Wildberger Decl., Dkt. 17-1 ¶ 4. Although Ms. Wildberger owns an internet capable smartphone, because of her learning disability, she does not know how to access Governor Cuomo’s press briefings online. Id. ¶¶ 56.
Plaintiff DRNY brings this action on behalf of itself and the four individual Plaintiffs. DRNY states that it has received a growing number of “complaints from deaf New Yorkers who are unable to understand Governor Cuomo’s daily briefings due to the lack of in frame televised ASL interpretation.” Compl. ¶ 37. DRNY characterizes this suit as the result of “one of the most significant calls to action DRNY has ever experienced.” Pls.’ Reply, Dkt. 17 at 8.
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ii. Governor Cuomo’s Current Accommodations Governor Cuomo states that he is “committed to ensur[ing] that all New Yorkers are
promptly and accurately informed about developments related to the COVID-19 pandemic,” and argues that he provides multiple means by which deaf individuals can access the information in his briefings. Compl. ¶ 40. For example, the briefings include PowerPoint slides that visually convey much of the information covered, and Cuomo notes that some television stations provide closed captioning of the briefings. Def. Opp., Dkt. 13 at 4-5. Additionally, the Governor’s website includes links to live and recorded video presentations of his briefings with an ASL interpreter. Id. at 5-6. Unlike the 49 other Governors in this country and New York City Mayor Bill de Blasio, however, Governor Cuomo does not provide an in-frame ASL interpreter in his live televised briefings. Compl. ¶ 36; Pls.’ Reply at 9.
Although they acknowledge the accommodations Governor Cuomo has provided to facilitate access to the daily press briefings for some deaf New Yorkers, Plaintiffs maintain that they are still unable to understand or access the information in the briefings without an in-frame ASL interpreter. Specifically, Plaintiffs argue that they lack internet access necessary to view the ASL interpretations online and that they are unable to read the closed captioning in English. Accordingly, Plaintiffs seek a mandatory preliminary injunction to require Governor Cuomo to provide an in-frame ASL interpreter during his televised briefings.
DISCUSSION A preliminary injunction is an “extraordinary remedy and should not be routinely granted.” Patton v. Dole, 806 F.2d 24, 28 (2d Cir. 1986). A plaintiff seeking a preliminary injunction must show: (1) a likelihood of success on the merits; (2) that the plaintiff is likely to suffer irreparable injury in the absence of an injunction; (3) that the balance of hardships tips in the plaintiff’s favor; and (4) that an injunction is in the public interest. Capstone Logistics
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Holdings, Inc. v. Navarrete, 736 F. App’x 25, 26 (2d Cir. 2018); North American Soccer League, LLC v. United States Soccer Federation, Inc., 883 F.3d 32, 37 (2d Cir. 2018). For mandatory injunctions, which “alter rather than maintain the status quo,” such as the one at issue here, “the movant must show a ‘clear’ or ‘substantial’ likelihood of success” on the merits. N.Y. Civil Liberties Union v. N.Y.C. Transit Auth., 684 F.3d 286, 294 (2d Cir. 2012) (citing Bronx Household of Faith v. Bd. of Educ., 331 F.3d 342, 349 (2d Cir. 2003)).
A. Plaintiffs Have Demonstrated a Clear and Substantial Likelihood of Success on the Merits Title II of the ADA provides that “no qualified individual with a disability shall, by
reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. The ADA seeks to prevent not only intentional discrimination against people with disabilities, but also discrimination that results from “thoughtlessness and indifference,” or, in other words, from “benign neglect.” Alexander v. Choate, 469 U.S. 287, 295 (1985); 42 U.S.C. § 12112(b)(5)(A) (defining discrimination to include failing to “mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability”). As the Second Circuit has explained, “[i]t is not enough to open the door for the handicapped; a ramp must be built so the door can be reached.” Dopico v. Goldschmidt, 687 F.2d 644, 652 (2d Cir. 1982) (internal quotation marks and alterations omitted). Similarly, Section 504 of the RA prohibits “programs and activities receiving federal financial assistance from excluding, denying benefits to, or discriminating against ‘otherwise qualified’ disabled individuals.” McElwee v. Cnty. of Orange, 700 F.3d 635, 640 (2d Cir. 2012) (quoting 29 U.S.C. § 794(a)). As the “standards adopted by the two statutes are nearly identical,” id., the Court will consider the merits of these claims together.
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In order to establish a claim of discrimination under Title II of the ADA or the RA, Plaintiffs must demonstrate that (1) they are “qualified individuals” with a disability; (2) that the Defendant is subject to the pertinent Act; and (3) that Plaintiffs were denied the opportunity to participate equally in or to benefit equally from Defendant’s services, programs or activities, by reason of their disability. Disabled in Action v. Bd. of Elections in City of New York, 752 F.3d 189, 196-97 (2d Cir. 2014). There is no dispute that Plaintiffs are qualified individuals with a disability or that Defendant is a “public entity” subject to the ADA and RA; the parties’ disagreement lies in whether Plaintiffs have been, and are being, denied the opportunity to benefit equally from Defendant’s press briefings by reason of their deafness.
A public entity discriminates against a disabled individual when it fails to provide “meaningful access” to its benefits, programs, or services. Disabled in Action, 752 F.3d at 197; see also Choate, 469 U.S. at 301 (holding that the ADA requires not only that people with disabilities be provided with access to public services, but that they “be provided with meaningful access” (emphasis added)); Henrietta D. v. Bloomberg, 331 F.3d 261, 273 (2d Cir. 2003) (explaining that the relevant inquiry is “whether those with disabilities are as a practical matter able to access benefits to which they are legally entitled”) (emphasis added). Individuals may be deprived of meaningful access to public programs if a public entity fails to modify existing practices. Disabled in Action, 752 F.3d at 197. The ADA’s implementing regulations explicitly prohibit a public entity from denying individuals with disabilities access to its services because its “facilities are inaccessible to or unusable by [such individuals].” 28 C.F.R. § 35.149. Accordingly, public entities must operate programs so that the program, “when viewed in its entirety, is readily accessible to and usable by individuals with disabilities.” Id. § 35.150(a). In the context of auxiliary aids, a public entity must “take appropriate steps to ensure that communications with [people] with disabilities are as effective as communications with others,”
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including, where necessary, the provision of “appropriate auxiliary aids and services.” 28 C.F.R. § 35.160(a)(1), (b)(1). Moreover, the public entity must consider that, “in order to be effective, auxiliary aids and services must be provided in accessible formats.” Id. (emphasis added).
To ensure meaningful access for disabled individuals, a public entity may have to make reasonable accommodations. Henrietta D., 331 F.3d at 273. The Court notes that a public entity need not “employ any and all means to make” services accessible; the ADA and RA “require[ ] only reasonable modifications that would not fundamentally alter the nature of the service provided” or “impose an undue financial or administrative burden.” Tennessee v. Lane, 541 U.S. 509, 531–32 (2004); see also Henrietta D., 331 F.3d at 281. That said, Plaintiffs are not obligated to prove that they have been “completely prevented from enjoying a service, program, or activity.” Disabled in Action, 752 F.3d at 198. Instead, Plaintiffs must simply show that the public entity has failed to institute reasonable accommodations sufficient to provide them with “meaningful access” to the services. Id. at 199 (citing Choate, 469 U.S. at 301); Henrietta D., 331 F.3d at 273.
Here, the primary dispute is whether Governor Cuomo’s existing accommodations adequately ensure Plaintiffs’ meaningful access to his press briefings. Governor Cuomo argues that they do; he emphasizes that he employs a “multiplicity of ways” to ensure that deaf individuals can access the important information in the briefings.3 The Court disagrees.

3

Governor Cuomo relies heavily on Brooklyn Ctr. for Indep. of Disabled v. Bloomberg, 980 F. Supp. 2d 588

(S.D.N.Y. 2013), to argue that, although his accommodations may not be “perfect,” the “multiplicity of means by

which information is distributed ensures that people with disabilities have an equal opportunity to access . . .

information as those without disabilities.” Def. Opp. at 18 (quoting 980 F. Supp. 2d at 655). The Court notes,

however, that among the “multiplicity of means” at issue in Brooklyn Center was in-frame ASL interpretation at the

Mayor’s press conferences. 980 F. Supp. 2d at 632. Moreover, here, the “multiplicity of means” employed by

Governor Cuomo do not ensure that people with disabilities have an equal opportunity to access the information he

is providing; Plaintiffs are unable to access the information due to their lack of internet access. Finally, in Brooklyn

Center, the Court concluded that plaintiffs “provided no evidence that the means of communication employed by the

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Although the Court acknowledges that Defendant’s accommodations need not be “perfect,” they still must ensure that the press briefings are “readily accessible” to the Plaintiffs in this case. Disabled in Action, 752 F.3d at 201 (explaining that although the “BOE is not expected to create poll sites out of whole cloth, it is required to operate its voting program so that when viewed in its entirety, [the program] is readily accessible to ... individuals with disabilities.”) (internal citations omitted); D’Amico v. New York State Bd. of Law Examiners, 813 F. Supp. 217, 221 (W.D.N.Y. 1993) (explaining that although the Board “did make some accommodations for plaintiff,” the ADA requires that “an individual analysis [] be made with every request for accommodations and the determination of reasonableness [] be made on a case by case basis.”).
Although Governor Cuomo is providing reasonable accommodations for many deaf New Yorkers, he has failed to make the “reasonable accommodations” necessary to give these Plaintiffs access to his briefings. D’Amico, 813 F. Supp. at 221. As noted above, the online ASL interpretations of Governor Cuomo’s briefings are not readily accessible to Plaintiffs or any other similarly situated deaf New Yorker who lacks internet access.4 The live broadcasts with

City during an emergency are any less effective at reaching people with disabilities as those without.” Id. at 656. That is not the case here; in addition to the individual Plaintiffs’ allegations, the complaint alleges that DRNY has received a “large number of complaints from deaf New Yorkers who are unable to understand Governor Cuomo’s daily briefings due to the lack of in frame televised ASL interpretation.”

Defendant’s reliance on Loye v. Cty. of Dakota, 625 F.3d 494, 499 (8th Cir. 2010), is similarly misplaced. In Loye, the Eighth Circuit affirmed the district court’s grant of summary judgment for the county, holding in part that the ADA and RA did not require the county to provide an ASL interpreter at every meeting held to discuss emergency decontamination in the plaintiffs’ community. That conclusion, however, was based on the fact that an ASL interpreter was provided at most of the meetings and Plaintiffs were unable to identify any “information they missed nor any harm suffered as a result of any alleged failure to provide interpreters [at every meeting].” Id. at 499. Here, by contrast, Governor Cuomo has not provided an in-frame ASL interpreter in a single live press briefing, and Plaintiffs have alleged that they missed critical information communicated during those briefings. See, e.g., Compl. ¶¶ 57, 65 73, 81; Wildberger Decl. ¶ 7.

4

The COVID-19 pandemic has exposed the disparity in internet access for individuals across New York and

across the United States. The difficulties surrounding the transition to remote work and schooling provided

inarguable evidence that many people in America, including many in New York, do not have internet access. See,

e.g., Geoffrey Starks, To Fight Coronavirus, Millions More Americans Need Internet Access, N.Y. Times (Mar. 19,

2020), https://www.nytimes.com/2020/03/19/opinion/internet-broadband-coronavirus.html (“The coming weeks will

lay bare the already-cruel reality of the digital divide: tens of millions of Americans cannot access or cannot afford

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closed captioning, while perhaps accommodating deaf New Yorkers who are fully literate in English, do not accommodate Plaintiffs and other similar deaf New Yorkers who cannot read English.5 In other words, without in-frame ASL interpretation, Plaintiffs are, “as a practical matter, [un]able to access benefits to which they are legally entitled.”6 Henrietta D, 331 F.3d at 273. Defendant’s suggestion that Plaintiffs are merely “choos[ing] not to take advantage of the various means by which the Governor communicates critical information during his press briefings,” Def. Opp. at 18, is unfounded, conclusory, and cavalier. While Governor Cuomo’s accommodations may “constitute a reasonable accommodation under some circumstances,” and may be utilized and valued by deaf New Yorkers with internet access, the “determination of reasonableness must be made on a case by case basis.” D’Amico, 813 F. Supp. at 221. The current accommodations – however well-intentioned – simply do not provide “meaningful access

the home broadband connections they need to telework, access medical information and help young people learn when school is closed.”); Locked Out of the Virtual Classroom, N.Y. Times (Mar. 27, 2020), https://www.nytimes.com/2020/03/27/opinion/coronavirus-internet-schools-learning.html (“America came face to face with the festering problem of digital inequality when most of the country responded to the coronavirus pandemic by shutting elementary and high schools that serve more than 50 million children.”); Suzanne Woolley et al., U.S. Schools Trying to Teach Online Highlight a Digital Divide, Bloomberg (Mar. 26, 2020), https://www.bloomberg.com/news/articles/2020-03-26/covid-19-school-closures-reveal-disparity-in-access-tointernet (“[M]any U.S. households lack not only devices but also sufficient internet connections.”); Erin Mansfield et al., Coronavirus for Kids Without Internet: Quarantined Worksheets, Learning in Parking Lots, USA Today (April 1, 2020), https://www.usatoday.com/story/news/education/2020/04/01/coronavirus-internet-speed-broadbandonline-learning-school-closures/5091051002/. (“A study by Microsoft in 2018 estimated that about half of Americans – 163 million people – do not have high-speed internet at home.”).

While the accommodations provided via the internet are impressive, the right of deaf New Yorkers to access Governor Cuomo’s briefings and get critical information regarding the COVID-19 pandemic “should not be contingent on the happenstance” that they have access to the internet. Disabled in Action, 752 F.3d at 200 (“The right to vote [for disabled individuals] should not be contingent on the happenstance that others are available to help”).

5

Plaintiffs also point out that closed captioning is not provided on all channels broadcasting the briefings

and, even when closed captioning is provided, questions from the audience are not captioned. Compl. ¶ 41.

Moreover, Plaintiffs allege that there are often errors or omissions in the transcription. Id. ¶ 42.

6

Defendant argues that Plaintiffs fail to “allege facts supporting a reasonable inference that they cannot

access the ASL interpretation the Governor already provides on his website.” The Court disagrees. See Compl. ¶¶

50-81; Nguyen Decl. ¶¶ 4-7; Hallenbeck Decl. ¶¶ 2-8; Wildberger Decl. ¶¶ 2-8.

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in the circumstances [presented] here.” Disabled in Action, 752 F.3d at 201; see also Jones v. Nat’l Conference of Bar Examiners, 801 F. Supp. 2d 270, 285, 289 (D. Vt. 2011) (“It cannot reasonably be disputed that what renders an examination ‘accessible’ to one disabled individual may not render it ‘accessible’ to another. … For this reason, the court concludes that Defendant’s extensive evidence regarding accommodations that were deemed appropriate many years ago, or for different individuals with different needs, constitutes an inappropriate benchmark for what must be offered” to Plaintiff); Wong v. Regents of Univ. of California, 192 F.3d 807, 818 (9th Cir. 1999) (“Because the issue of reasonableness depends on the individual circumstances of each case, this determination requires a fact-specific, individualized analysis of the disabled individual’s circumstances and the accommodations”).
In sum, Plaintiffs have established that, despite the accommodations currently offered, they cannot access Governor Cuomo’s briefings without an in-frame ASL interpreter and have therefore demonstrated a likelihood of success on the merits. See Jones, 801 F. Supp. 2d at 285 (explaining that the Court’s analysis “remains an individualized inquiry, and not a one-size-fitsall approach.”). Notably, in opposing Plaintiffs’ requested accommodation, Defendant does not argue that providing an in-frame ASL interpretation would be burdensome. Nor is there any evidence that this proposed accommodation would “fundamentally alter the nature” of Governor Cuomo’s press briefings or “impose an undue financial or administrative burden.” Disabled in Action, 752 F.3d at 202. In fact, as noted supra, the 49 other Governors in this country, as well as the Mayor of New York City, provide this accommodation.
B. Plaintiffs Will Suffer Irreparable Harm if a Preliminary Injunction is Not Granted Irreparable harm requires a showing that Plaintiffs will suffer an “actual and imminent”
injury that “cannot be remedied if a court waits until the end of trial to resolve the harm.” Singas Famous Pizza Brands Corp. v. New York Adver. LLC, 468 F. App’x 43, 45 (2d Cir. 2012). In
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evaluating whether the plaintiff will suffer imminent harm, “the court must actually consider the injury the plaintiff will suffer if he or she loses on the preliminary injunction but ultimately prevails on the merits, paying particular attention to whether the ‘remedies available at law, such as monetary damages, are adequate to compensate for that injury.” Salinger v. Colting, 607 F.3d 68, 80 (2d Cir. 2010) (internal quotation marks omitted).
Here, Plaintiffs are seeking vital and continually changing information regarding their health and safety. Governor Cuomo’s decision to hold a daily press briefing reflects the reality that information regarding the COVID-19 pandemic is constantly evolving and his assessment that it is important for New Yorkers to have ready access to the latest information. Thus, the Court agrees that, without access to Cuomo’s daily briefings, Plaintiffs are subject to actual and imminent injury that cannot be remedied if the court were to wait “until the end of trial to resolve the harm.” For example, in the upcoming days and weeks, Governor Cuomo will not only continue to update New Yorkers about the daily COVID-19 toll, but he will also provide updated information regarding his thinking and plans relative to reopening businesses, resumption of non-essential travel, lessening of social distancing restrictions, diagnostic testing, and public transportation. Without immediate implementation of an in-frame ASL interpreter, Plaintiffs and other similarly situated deaf New Yorkers will continue to be denied timely access to this critical information, leaving them less able to comply with current orders and advice, less able to prepare for the future, and more anxious about current conditions and the future. Legal remedies, such as monetary damages, would be wholly inadequate to compensate for these injuries.
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C. The Balance of Hardships Weighs Heavily in Favor of Plaintiffs and an Injunction is in the Public Interest In considering a motion for a preliminary injunction, the court “must balance the
competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). Plaintiffs must establish that the balance of hardships tips in their favor regardless of the likelihood of success. Salinger, 607 F.3d at 79-80. In addition, a court may award preliminary injunctive relief only if the “public interest would not be disserved.” Id. at 80.
Here, the Court finds that the balance of hardship tips decidedly in favor of the Plaintiffs. As noted supra, Governor Cuomo does not argue that implementing an in-frame ASL interpreter would be burdensome.7 By contrast, Plaintiffs have demonstrated that they experience hardship on a daily basis as a result of their inability to access Governor Cuomo’s briefings. Moreover, the Court agrees that Plaintiffs cannot follow Governor Cuomo’s executive orders or health department recommendations if they are not aware of them. Pls.’ Mem. of Law at 15. As a result, Plaintiffs and members of the deaf community who are similarly situated to Plaintiffs cannot “ensure that they act in the public’s interest, and may unknowingly endanger themselves or others.” Id. Furthermore, the Court sees no disservice to the public by providing Plaintiffs’ proposed accommodation.

7

The Defendant has not explained why he resisted Plaintiffs’ pre-litigation pleas for him to implement in-

frame ASL interpretation. See Compl. ¶¶ 40, 44-46; Pls.’ Mem. of Law, Dkt. 4 at 3. His position in this litigation

comes down to his view that the law does not require it; he has done other things to accommodate the deaf, and

therefore, he will not provide in-frame ASL interpretation. That dismissive attitude towards this segment of his

constituency – beyond being unkind – runs counter to the law of the land as articulated in the ADA and RA.

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CONCLUSION For the foregoing reasons, Plaintiffs’ motion for a preliminary injunction was GRANTED on May 11, 2020. Defendant was ordered to immediately implement in-frame ASL interpretation during his daily press briefings. If in-frame ASL translation cannot be implemented by May 13, 2020, Defendant must submit a detailed affidavit by May 13, 2020, explaining why and providing a date by which it will be implemented. The Court urges the parties to proceed with the currently-scheduled settlement conference. If the case fails to settle, the deadline for fact discovery is June 8, 2020. A pretrial conference will be held on June 12, 2020 at 10:00 a.m.

SO ORDERED.
Date: May 12, 2020 New York, New York

________________________ VALERIE CAPRONI
United States District Judge

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