Case 1:11-cv-06690-JMF Document 1 Filed 09/26/11 Page 1 of 25
JUDGE HOLWELL 


UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK . B--R--O---O--K--L--Y--N---C--E--N--T--E--R---F-O---R---------------------. x Case No.
INDEPENDENCE OF THE DISABLED, a nonprofit organization, CENTER FOR INDEPENDENCE OF THE DISABLED,

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NEW YORK, a nonprofit organization, and

CLASS ACTION COMPLAINT

S

TANIA MORALES

FOR DISCRIMINATION;

INJUNCTIVE AND

Plaintiffs,

DECLARATORY RELIEF

-against-

MICHAEL R. BLOOMBERG, in his official capacity as Mayor of the City of New York, and the CITY OF NEW YORK

Defendants.

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INTRODUCTION 1. This class action lawsuit challenges the long-term, multiple and serious failures by Mayor Bloomberg and the City of New York to address the critical needs of men, women, and children with disabilities during emergencies and disasters. Although the Mayor and the City have created emergency plans for the general population, they have failed to plan appropriately for the nearly 900,000 disabled persons within New York City who are especially vulnerable during disasters. 2. Hurricanes, terrorist attacks, floods, fires, and winter storms are a few of the many potential emergencies that New York City and its residents must face. The failure of Mayor Bloomberg (hereafter sometimes the "Mayor") and the City ofNew York (hereafter sometimes the "City") to plan for the unique needs of New Yorkers with disabilities creates severe hardships for people with disabilities and can be life threatening to them during these emergencies.

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3. Defendants' failures to respond to disability needs in emergency planning were made painfully evident by Hurricane Irene. As the hurricane approached, New Yorkers with disabilities had no idea how they could be evacuated, what shelters, if any, were accessible, how they would obtain life-sustaining medications, or how they could be transported when buses and subways stopped running.
4. During Hurricane Irene, despite assurances from the City that shelters would be accessible, many of the shelters that were open to the public were not accessible to persons with disabilities. Ramps into shelters were often makeshift or too steep and dangerous to use. Other ramps that should have been usable led to locked doors for which shelter volunteers did not have keys. Signage for persons with vision disabilities also led to locked doors. Bathrooms in the shelters were inaccessible. Only 26% of the shelters opened, which were located in public schools, were listed on New York City'S Department of Education website as somewhat or completely accessible. This did not include the shelters which had ramps that led to locked doors.
5. As a result, disabled New Yorkers, such as Tania Morales, were turned away from shelters. For Ms. Morales, this was because the gate for the ramp was locked and the shelter staff could not find the key, forcing her to return home and remain there during the hurricane.
6. Also during Hurricane Irene, emergency notifications were often inaccessible to persons with vision disabilities. Evacuation maps from the City included text that was too small and colors with poor contrast. Televised emergency announcements from City officials did not include American Sign Language interpreters.
7. In anticipation of Hurricane Irene, Mayor Bloomberg shut down bus, subway and paratransit services at noon on Saturday August 27,2011, hours before the hurricane was expected to hit. He noted that if evacuating after that time "you'll have to walk, or you're going to find some way to use a car or taxi." The Mayor stated later that a number of cabs had been directed to go to evacuation zones, and liveries and commuter vans had been authorized to pick up street hails anywhere in the City. However, because only 1.8% of all yellow taxicabs and

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only .02% of other for-hire vehicles are accessible to persons using wheelchairs, disabled people could not use cabs or other for higher vehicles for evacuation. The Mayor also pointed to the availability of school buses for evacuation. However, these school buses had no lifts or accessible seating areas for persons with mobility disabilities.
8. The City of New York has been on notice for at least ten years that emergency preparedness for persons with disabilities is lacking. During and following the September 11th terrorist attack, men, women and children with disabilities were disproportionately harmed. Persons with mobility disabilities who wanted to evacuate the World Trade Center buildings were unable to do so because there were no evacuation chairs or other evacuation assistance provided for persons with mobility disabilities. These individuals did not even have the choice of whether to leave and were essentially trapped and left to die.
9. During recovery efforts after September 11th, the City paid little attention to the unique needs of persons with disabilities. Personal attendants and aides for persons with disabilities were not allowed into the "frozen zone," leaving many persons with disabilities who lived in the frozen zone without assistance to perform daily life activities such as dressing, eating, and toileting. Many shelters and disaster assistance centers serving people evacuated from the frozen zone could not be accessed by residents with mobility disabilities, and the centers did not have signs and printed materials that were readable by men and women with vision disabilities. No plans were made for providing replacement medical equipment or supplies for persons with disabilities. Transportation was interrupted, leaving persons with disabilities without accessible transportation to vital emergency services being offered to the general pUblic.
10. Specific emergencies such as Hurricane Irene and September 11th highlight the glaring deficiencies in New York City's emergency preparedness efforts for persons with disabilities. Yet these specific events are merely a symptom of the current underlying problem: Mayor Bloomberg and the City ofNew York's ongoing failure to prepare for the unique needs of
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persons with disabilities during emergencies. This failure to plan puts the lives of persons with disabilities in unnecessary danger.
11. Effective emergency preparedness and planning must include certain essential components, such as provision for shelter and care for people forced to evacuate their homes, public notification and communication before and during emergencies, as well as assistance with evacuation and transportation from affected areas. The City ofNew York has made and continues to make substantial efforts and has spent and continues to spend considerable resources addressing such components for the general pUblic.
12. However, with respect to each of these essential components, the Mayor and the City have failed to consider and address the different, yet critical, needs of persons with disabilities.
13. Defendants' emergency preparedness efforts for persons with disabilities are woefully deficient in that they do not adequately plan for notifying persons with sensory disabilities before and during emergencies, for evacuating persons with mobility disabilities from their homes, for providing accessible transportation to shelters and back, for providing shelters that are architecturally accessible and identifying these to persons with disabilities, and for providing assistance to persons with disabilities during recovery after an emergency.
14. Mayor Bloomberg and New York City have discriminated against men, women, and children with disabilities by failing to address their unique needs during emergencies. This suit challenges this ongoing failure and seeks to ensure that vulnerable New Yorkers with disabilities are included in the City'S emergency preparedness and planning. II
JURISDICTION 15. This is an action for declaratory and injunctive relief brought pursuant to Section 504 of the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. § 794, et seq., Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12131, et seq., and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code §8-101 et seq. This Court has subject
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matter jurisdiction over the Rehabilitation Act and ADA claims pursuant to 28 U.S.C. §§ 1331 and 1343 and supplemental jurisdiction over the NYCHRL claim pursuant to 28 U.S.C. § 1367.
16. This Court has jurisdiction to issue declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202. II
VENUE
17. Pursuant to 28 U.S.C. § 1391 (b), venue is proper in the District in which this Complaint is filed, because Defendants are located within this District and a substantial part of the events or omissions giving rise to the claims alleged herein occurred in this District. II
PARTIES 18. Organizational Plaintiff Brooklyn Center for Independence of the Disabled ("BCID") is an independent living center based in Brooklyn. Founded in 1956, BCID is a consumer-based, non-profit, membership organization, providing services and advocacy toward independent living for individuals with disabilities. 19. BCID is dedicated to guaranteeing the civil rights of people with disabilities. BCID seeks to improve the quality of life of Brooklyn residents with disabilities through programs that empower them to gain greater control of their lives and achieve full and equal integration into society. BCID accomplishes this goal through its services, its advocacy for systems change to remove physical, attitudinal and communication barriers to people with disabilities, and through its education and awareness programs. Accordingly, the interests that BCID seeks to protect through this litigation are germane to its mission and purpose. 20. BCID's advocacy and direct service work is based on a close association with its constituents. The majority ofBCID's staff, board members, and volunteers have disabilities themselves. In addition, BCID is a membership organization in which persons with disabilities may participate through committees, board meetings, and direct advocacy. As persons with disabilities, one or more members of BCID are suffering injury due to the City's failure to
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include persons with disabilities in its emergency preparedness and planning efforts. Accordingly, one or more BCID members have standing to sue in their own right. Moreover, since only injunctive and declaratory relief are requested, the participation of individual members in the lawsuit is not required.
21. Furthermore, BCID is directly harmed by New York City's and the Mayor's failure to adequately plan for the needs of persons with disabilities during emergencies. Because of such failures, BCID is forced to expend time and resources advocating for its constituents whose needs are not being met. BCID is forced to provide direct assistance to those individuals when government entities are unable to do so. A favorable decision in this case would directly redress these injuries.
22. Center for Independence of the Disabled, New York ("CIDNY") is an independent living center serving persons with disabilities throughout New York City. Founded in 1976, CIDNY is a consumer-based, non-profit organization, providing services and advocacy toward independent living for individuals with disabilities. CIDNY's goal is to ensure full integration, independence and equal opportunity for all people with disabilities by removing barriers to the social, economic, cultural, and civic life of the community. Over half of CIDNY' s board members and over seventy percent of CIDNY' s staff are persons with disabilities.
23. CIDNY has expended extensive time and resources in addressing emergency preparedness for persons with disabilities. Immediately following the September 11th attack, CIDNY stepped into the role the City should have already been prepared to play. CIDNY rapidly developed a Disaster Relief Services program which provided (1) direct services to persons with disabilities personally affected by the emergency, (2) education, training and technical assistance to relief and other service providing agencies and (3) outreach to persons with disabilities who did not come forward seeking help in the first weeks after the attack.
24. Three years after September 11th, CIDNY issued a report entitled "Lessons Learned from the World Trade Center: Emergency Preparedness for People with Disabilities in New York." The report reached several key conclusions:
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• Emergency responders, as well as relief and other service agencies, must incorporate into their planning and operations an appropriate strategy for ensuring equitable access to response and recovery services for people with disabilities;
• Relief agencies cannot wait until they are in the middle of a disaster to start training their staff in disability awareness;
• The day after a disaster is too late for agencies to start doing outreach to make their services known to people with disabilities; and
• During the recovery phase, there must be a priority to restore or address those services and needs most critical to people with disabilities, especially related to access to home attendants, assistive equipment, medication, accessible transportation and temporary shelter, and food delivery.
These lessons have been ignored by the City of New York and its Mayor. 25. CIDNY continues today to advocate for persons with disabilities during emergencies
through direct services, such as special outreach to consumers to alert them to emergencies and resources, and through advocacy, such as participating on committees and in meetings with government officials, representing the disability community.
26. CIDNY is directly harmed by New York City's and Mayor's Bloomberg's failure to adequately plan for the needs of persons with disabilities during emergencies. Because of the discriminatory emergency preparations by New York City and Mayor Bloomberg, CIDNY must expend time and resources preparing its constituents for emergencies and advocating for its constituents before, during and after emergencies. CIDNY is forced to provide direct assistance to individuals with disabilities when government entities fail to do so. A favorable decision in this case would directly redress these injuries.
27. Plaintiff Tania Morales is a resident ofNew York City and a masters candidate in public administration. She has a mobility disability that causes her to rely on a wheelchair. She
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is a qualified individual with a disability within the meaning of all applicable statutes and a member of the proposed class.
28. Ms. Morales currently does not know which, if any, emergency shelters designated by the City of New York are accessible to persons using wheelchairs. During Hurricane Irene, Ms. Morales located her nearest emergency shelter using the City's website. Ms. Morales could find no information on the website as to whether the shelter was accessible to persons using wheelchairs. Ms. Morales knew that the shelter was a public school and remembered seeing a ramp leading into the building. Ms. Morales traveled in her motorized wheelchair to the shelter, but when she reached the main entrance, she discovered that the gates to the ramp leading into the building were locked. The volunteers at the shelter tried to locate the keys for the gates. However, after waiting ten minutes for the volunteers to search, the wind was picking up and Ms. Morales was afraid to continue to wait outside on the sidewalk. Ms. Morales returned home and remained there for the duration of the hurricane.
29. Ms. Morales also does not have information about whether evacuation transportation will be accessible to persons with disabilities during emergencies or disasters. During Hurricane Irene, for instance, Ms. Morales could not go to another shelter to see if it was accessible because there was no available accessible transportation. Subways, buses and paratransit were shut down. Ms. Morales had no other option but to return home.
30. The Plaintiff class consists of all persons with disabilities in the City of New York who have been and are being denied the benefits and advantages ofNew York City's emergency preparedness program because of Mayor Bloomberg and New York City's continuing failure to address the unique need of this population in the City's emergency planning and preparations.
31. Defendant City of New York is, according to New York State Executive Law Article 2-B, "the first line of defense in times of disaster." (N.Y. Exc. Law § 20. 1(a». The City of New York is the first level of response for meeting the emergency needs of persons in its jurisdiction. New York City's emergency services include the Police Department (NYPD), Fire Department (FDNY), Fire Department Emergency Medical Services (FDNY-EMS), and Office of
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Emergency Management (OEM). A number of other City agencies, including the Department of Health and Mental Hygiene (DOHMH), Department of Environmental Protection (DEP), and Department of Buildings (DOB) also have emergency response functions.
32. Defendant Mayor Bloomberg, in his official capacity, is the chief executive as defined in New York State Executive Law Article 2-B. (N.Y. Exc. Law § 20.2(f)). As the local chief executive, Mayor Bloomberg is required to "take an active and personal role in the development and implementation of disaster preparedness programs and be vested with authority and responsibility in order to insure the success of such programs." (N.Y. Exc. Law § 20.l(b)). Moreover, as the local chief executive, only Mayor Bloomberg can declare a local state of emergency covering all or any part of his jurisdiction. (N.Y. Exc. Law § 24.1).
33. Hereafter, reference to "Defendants" shall be deemed to include all named Defendants, and each of them, unless otherwise indicated. II
FACTUAL ALLEGATIONS New York City Faces a Variety of Potential Emergencies and Is Extremely Susceptible to
the Effects of these Emergencies 34. With more than 8.2 million people, New York City is the most populous city in the United States and ranks among the largest urban areas in the world. It is also one of the most densely populated cities in the United States with an area ofjust 305 square miles. 35. New York City has developed a complex and interconnected network of transportation and infrastructure systems. However, New York City's defining characteristics ­ its dense population and complex infrastructure - also increase the potential significance of emergencies and disasters, making it more susceptible to their effects than many other cities. 36. New York City'S Office of Emergency Management ("OEM") is an agency charged with preparing for natural disasters such as coastal storms, earthquakes, extreme temperatures, flooding, windstorms, and winter storms. New York City must also be prepared to deal with
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man-made disasters such as utility interruptions, hazardous spills or toxic releases caused by transportation or industrial accidents, civil disturbances, and terrorist incidents.
37. Over the past 20 years, New York City has endured numerous emergencies and disasters, ranging from hurricanes (e.g., Hurricanes Irene, Isabel and Floyd) to power outages (e.g., Northeast Blackout of2003) to terrorist attacks (e.g., February 1993 and September 2001) and winter storms (e.g., Blizzard of 1996, President's Day Storm 2003 and blizzards in 2010-11). II An Effective Emergency Preparedness Program Must Include Nine Essential Components.
38. An effective emergency preparedness program must include at least nine essential components. The City of New York attempts to make preparations for the general public for each of these components.
39. First, an emergency preparedness program must include the development of comprehensive emergency plans. Such plans must address both specific types of emergencies (e.g., hurricanes) andlor address specific procedures (e.g., evacuation) during emergencies.
40. The City of New York has developed such emergency plans. For instance, New York City has emergency plans for coastal storms, winter weather, and heat emergencies. New York City also relies on the Citywide Incident Management System (CIMS) which sets forth roles and responsibilities during emergencies.
41. Second, an emergency preparedness program must include assessments of the efficacy of emergency plans. This requires exercises and drills simulating various emergencies and may require public participants.
42. New York City'S OEM has held at least one exercise andlor drill each year since 2002 to test the efficacy of various emergency plans.
43. Third, an emergency preparedness program must include advanced identification of the needs that will arise and resources available to meet those needs during an emergency.
44. The City of New York uses the Citywide Asset and Logistics Management System (CALMS) to manage the City'S emergency resources and essential skills. CALMS integrates
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multiple resource management systems and provides a single view of the resources managed or accessible to response agencies.
45. Fourth, an emergency preparedness program must provide plans for public notification and communication prior to, during and after emergencies.
46. New York City's OEM has a public information plan to undertake such communications. In addition, emergency responders communicate emergency information via bullhorn and door-to-door notifications.
47. Fifth, an emergency preparedness program must provide policies or procedures concerning the concept of "sheltering in place." When evacuation to shelters is either inappropriate or impossible, New York City residents and visitors may be asked to stay where they are (e.g., their own apartment or house) and "shelter in place."
48. New York City has a policy in which persons in its jurisdiction should be prepared to shelter in place for up to three days. This means that persons should have enough food, water, medicine, and other supplies to survive on their own for three days.
49. Sixth, an emergency preparedness program must include plans to provide shelter and care for individuals forced to evacuate their homes during emergencies. Public schools are commonly used as shelters. Care at such shelters includes food, water, sleeping areas, bathroom facilities and medical attention, if necessary.
50. The City of New York offers shelter and care for individuals forced to evacuate their homes during emergencies.
51. Seventh, an emergency preparedness program must plan to provide assistance with evacuation and transportation.
52. New York City has an urban search and rescue team that assists in evacuation. In addition, New York City offers transportation for residents and visitors who must evacuate from affected areas during an emergency.
53. Eighth, an emergency preparedness program must include plans for provision of temporary housing when evacuees cannot return to their homes.
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54. In the City ofNew York, the Department of Housing Preservation and Development's Emergency Housing Services Bureau provides emergency relocation services when individuals are not able to reoccupy their residences after evacuation.
55. Ninth, an emergency preparedness program must have plans for the provision of assistance in recovery and remediation efforts after an emergency or disaster.
56. New York City provides disaster recovery assistance in cooperation with federal and state agencies. II
The Unique Needs of Persons with Disabilities Must Be Addressed for Each of The Essential Components But New York City Fails To Do So.
57. While New York City provides each of these nine essential components of emergency preparedness for the general population, it fails to do so for the almost 900,000 New Yorkers with disabilities. New York City's emergency preparedness efforts do not address the unique needs of persons with disabilities during emergencies.
58. In developing its comprehensive emergency plans, a city must include the input of the disability community.
59. However, the City of New York has failed to consistently engage and affirmatively respond to the disability community. OEM, for instance, has involved the disability community on only certain issues, piece-meal and out of context. OEM has never provided a draft of a plan for which the disability community can provide input. OEM has failed to act on a grant request from the New York State Independent Living Centers intended to fund efforts relating to emergency preparedness for persons with disabilities.
60. As a result, persons with disabilities know very little or nothing of the City'S emergency plans. They do not know, for instance, how they will be notified, how and if they will be evacuated, which shelters are accessible, how and if they will be transported and what assistance, if any, they will receive.
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61. In assessing the efficacy of its emergency plans, a city must test its plans with regards to persons with disabilities.
62. The City of New York has held no drills or exercises to test the efficacy of its plans for persons with disabilities. Indeed New York City has turned away persons with disabilities from participating in emergency drills which are open to the general public.
63. In identifying needs and resources in advance of an emergency, a city must plan for the needs of, and provide the resources specifically for, persons with disabilities. This requirement includes, for instance, planning for replacement life-sustaining mediations, consumable medical supplies, and durable medical equipment for persons with disabilities and detennining the number of accessible seats available on evacuation buses.
64. New York City has made no such plans to assess the emergency needs of persons with disabilities let alone made plans to ensure that these needs will be met.
65. In notifying and communicating with persons with disabilities prior to and during an emergency, a city must ensure that communications are accessible. This requires, among other accommodations, having plans that provide for captioning or American Sign Language interpreters for persons who are deaf or hard of hearing and that avoid bullhorn type announcements to infonn persons of imminent emergencies. This further requires ensuring that websites with emergency infonnation are accessible to screen readers used by persons with no or low vision.
66. New York City has no adequate or effective plans for ensuring accessible notification and communication prior to and during emergencies.
67. When sheltering in place is required, persons with disabilities may need assistance. For example, persons with disabilities may need help in daily life activities (e.g., eating, dressing) which normally would be provided by an aide or caretaker. Persons with disabilities may also be dependent on electricity for respirators, wheelchairs or other assistive technologies which, during power-outages, means persons with disabilities may require immediate assistance.
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A city must develop specific policies as to how it will address these and other scenarios when persons with disabilities are forced to remain in their homes or apartments during emergencies.
68. New York City has failed to develop such policies. New York City does not, for instance, offer in-home assistance or sheltering options for persons with disabilities whose survival depends on electrically powered equipment when electrical power is disrupted for extended periods of time.
69. When a city provides shelter and mass care to persons forced to evacuate their homes, a city must have plans to ensure that the shelters are free of architectural barriers to persons with disabilities. For example, there must be useable ramps instead of stairs, paths of travel throughout the shelter which are wide enough for wheelchairs and bathrooms which are useable by persons with mobility disabilities. A city must conduct surveys of its shelters so it knows which of its shelters are architecturally accessible to persons with disabilities.
70. There must also be programmatic access, ensuring that the mass care offered is equally available to persons with disabilities. For instance, there must be plans to ensure cots usable by men and women with disabilities (allowing persons using wheelchairs to safely transfer to the cot), refrigeration for medications that must be refrigerated (e.g., insulin) and back-up medications, consumable medical supplies and durable medical equipment for persons with disabilities who need these items.
71. The City of New York has not adequately surveyed its shelters to ensure that they will be architecturally barrier free during emergencies and fails to identifY which of its shelters, if any, are accessible during emergencies. Nor has New York City taken responsibility for ensuring that its shelters are equipped with accessible cots, accessible bathrooms, life-sustaining medications and replacement medical equipment. As a result, shelters have not been and continue not to be accessible to persons with disabilities.
72. If evacuation and transportation from affected areas is necessary, a city must make plans for assisting those who cannot evacuate on their own. For example, persons in wheelchairs or scooters may not be able to leave their building without electricity to operate the elevators. If
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the physical environment has changed (e.g., rubble, barricades), persons with vision disabilities may have greater difficulty navigating out of the affected areas. A city must also make plans to provide a sufficient amount of transportation that is accessible.
73. New York City has made no such plans to ensure that persons with disabilities will have assistance evacuating or that accessible transportation from affected areas will be provided.
74. A city must also make plans to ensure that any temporary housing provided to those who cannot return to their homes following an emergency is architecturally accessible to persons with disabilities.
75. New York City has made no such plans that specify how it will ensure that temporary housing is accessible to persons with disabilities.
76. In providing assistance in recovery and remediation efforts after an emergency or disaster, a city must plan for the specific needs of persons with disabilities who may require, for instance, transportation back to their homes from shelters and assistance to restore accessible features (e.g., removing rubble, repairing ramps).
77. The City of New York has made no plans as to how it will specifically assist persons with disabilities during the recovery and remediation phase following an emergency.
78. Because Defendants have failed to provide for the unique needs of persons with disabilities in its emergency preparedness program, Mayor Bloomberg and New York City are denying persons with disabilities meaningful access to New York City's emergency preparedness program and are discriminating against men, women, and children with disabilities. II
CLASS ACTION ALLEGATIONS 79. Pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure, the named Plaintiffs bring this action for injunctive and declaratory relief on their own behalf, on behalf of their members, and on behalf of all persons similarly situated. The class that the named Plaintiffs seek to represent consists of all persons with disabilities in New York City who have
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been and are being denied the benefits and advantages of New York City's emergency preparedness program.
80. The persons in the class are so numerous that joinder of all members of the class is impracticable and the disposition of their claims in a class action is a benefit to the parties and to the Court.
81. Data from the United States Census American Community Survey conducted in 2008 indicate that almost 900,000 non-institutionalized New York City residents have a disability. Such data further show that more than 180,000 non-institutionalized New York City residents have a hearing disability, more than 210,000 non-institutionalized New York City residents have a vision disability and over 535,000 non-institutionalized New York City residents have a mobility disability.
82. There is a well-defined community of interest in the questions oflaw and fact involved affecting the parties to be represented, in that named Plaintiffs, members of organizational Plaintiffs and individuals in the class have been and continue to be denied their civil rights of access to, and use and enjoyment of, the City ofNew York's emergency preparedness program due to Defendants' discriminatory implementation of this program, resulting not only a denial of meaningful access to that program for persons with disabilities but also an extreme and unacceptable risk of death or serious injury to such persons.
83. Common questions of law and fact predominate, including questions raised by Plaintiffs' allegations that Defendants have failed to address the unique needs of persons with disabilities in their emergency planning and that, as a result, key components of Defendants' emergency preparedness program exclude and discriminate against persons with disabilities.
84. The claims of the named Plaintiffs, and their members, are typical and are not in conflict with the interests of the class as a whole. Defendants' omissions and violation of the law as alleged herein has caused named Plaintiffs, Plaintiffs' members and class members to be deprived of the opportunity to effectively utilize Defendants' emergency preparedness program. Therefore, all class members will suffer the same or similar injuries for the purposes of the
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injunctive and declaratory relief sought. Plaintiffs' claims are thereby representative of and co­ extensive with the claims of the class.
85. The named Plaintiffs are adequate class representatives because they and their members are directly affected by Defendants' discriminatory implementation of their emergency preparedness program. The interests of the named Plaintiffs are not antagonistic to, or in conflict with, the interests of the class as a whole.
86. The attorneys representing the class are experienced both in disability law and in class action institutional litigation. Counsel representing the plaintiff class is qualified to fully prosecute this litigation and possesses adequate resources to see this matter through to resolution. Plaintiffs will fairly and adequately represent and protect the interests of the class.
87. Defendants have acted andlor failed to act on grounds generally applicable to the class as a whole, thereby making appropriate final declaratory and injunctive relief with respect to the class as a whole. II
FIRST CAUSE OF ACTION FOR VIOLATION OF THE AMERICANS WITH DISABILITIES ACT,
42 U.S.c. § 12131, ET SEQ. 88. Plaintiffs re-allege and incorporate herein all previously alleged paragraphs of the Complaint. 89. Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132, prohibits a public entity from excluding a person with a disability from participating in or denying the benefits of a program of the public entity to a person with a disability or otherwise discriminating against a person on the basis of disability. Title II provides, in pertinent part, that
No qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits ofthe services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. 90. The term "disability" includes physical and mental impairments that substantially limit one or more major life activities. 42 U.S.c. § 12102(2). A "qualified individual with a
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disability" means an "individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, 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).
91. The named Plaintiffs, members of organizational Plaintiffs, and the class are persons with disabilities within the meaning of the statute in that they have impairments which substantially limit one or more major life activities (e.g., walking, hearing, seeing). They are also qualified in that they are located in New York City and thus, are eligible for the benefits of the City's emergency preparedness program. Thus, named Plaintiffs, members of organizational Plaintiffs, and the class are qualified individuals with disabilities within the meaning of 42 U.S.C. § 12102,42 U.S.C. § 12131, and 28 C.F.R. § 35.104.
92. A "public entity" includes state and local governments, their agencies, and their instrumentalities. 42 U.S.C. § 12131(1). Defendant New York City is a public entity within the meaning of 42 U.S.C. § 12131 and 28 C.F.R. § 35.104. Mayor Bloomberg is being sued in his official capacity as the chief executive of New York City.
93. By failing to plan to meet the unique needs of persons with disabilities during an emergency, Defendants have excluded them from participation in, denied them the benefits of, and discriminated against them in an emergency preparedness program offered by a public entity, in violation of 42 U.S.C.§ 12132.
94. Congress directed the Department of Justice ("DOJ") to promulgate regulations implementing Title II's prohibition against discrimination. 42 U.S.C. § 12134. Pursuant to this mandate, the DOJ has issued regulations defining the forms of discrimination prohibited by Title II of the ADA. 28 C.F.R. § 35.101 et. seq.
95. Pursuant to 28 C.F.R. § 35. 130(b)(1 )(i), (ii) and (vii), a public entity, in providing any aid, benefit, or service, may not directly or through contractual, licensing, or other arrangements, on the basis of disability (1) deny qualified individuals with disabilities the opportunity to
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participate in or benefit from the aid, benefit, or service; (2) afford qualified individuals with disabilities an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded to others or (3) otherwise limit qualified individuals with disabilities in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service.
96. Defendants provide an aid, benefit, or service in the form of an emergency preparedness program. However, they do so in an unequal manner which denies or limits the ability of disabled men, women, and children to enjoy the benefits as others can. For instance, because New York City's emergency plans do not ensure shelters are architecturally accessible, persons using wheelchairs may be turned away and because New York City's plans do not ensure accessible communication, persons with vision disabilities may be limited in how they are notified about imminent emergencies and the incident services available to them.
97. Pursuant to 28 C.F.R. § 35.130(b)(3)(i), a public entity may not, directly or through contractual or other arrangements, utilize methods of administration that have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability.
98. Defendants may not avoid their responsibility to address the unique needs of persons with disabilities during emergencies by delegating responsibility to other agencies or organizations such as the American Red Cross. That is, even if the American Red Cross is charged with managing shelters, it is New York City's ultimate responsibility to ensure, for instance, that refrigeration, life-sustaining medications, durable medical equipment, and service animal facilities are provided at its shelters.
99. Pursuant to 28 C.F.R. § 35.130(b)(4), a public entity may not, in determining the site or location of a facility, make selections that have the effect of excluding individuals with disabilities from, denying them the benefits of, or otherwise subjecting them to discrimination.
100. Defendants claim to know which shelters are accessible to persons with disabilities. However, there is no evidence that New York City hired any trained professionals to ensure that shelters are indeed architecturally and programmatically accessible. Indeed during
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the most recent emergency, Hurricane Irene, New York City opened several shelters that were not architecturally accessible to persons using wheelchairs.
101. Pursuant to 28 C.F.R. § 35.130(b)(7), a public entity shall make reasonable modifications in policies, practices or procedures when modifications are necessary to avoid discrimination on the basis of disability.
102. Defendants have utterly failed to provide reasonable modifications. For example, Defendants have not modified their policy of sheltering in place for three days in order to assist persons with disabilities who may not, because of their disability, be able to remain in their homes for three days without any assistance.
103. As a proximate result of Defendants' violations of Title II of the ADA, Plaintiffs have been injured as set forth herein.
104. Defendants' conduct constitutes an ongoing and continuous violation ofthe ADA and unless restrained from doing so, Defendants will continue to violate said law. This conduct, unless enjoined, will continue to inflict injuries for which Plaintiffs have no adequate remedy at law. Plaintiffs will suffer irreparable harm in that they will continue to be discriminated against and denied access to New York City's emergency preparedness program. Consequently,
Plaintiffs are entitled to injunctive relief pursuant to section 308 of the ADA (42 u.s.c. §
12188), as well as reasonable attorneys' fees and costs. WHEREFORE, Plaintiffs pray for relief as set forth below.
II SECOND CAUSE OF ACTION
VIOLATION OF SECTION 504 OF THE REHABILITATION ACT OF 1973 (29 U.S.C. § 794, ET SEQ.)
105. Plaintiffs re-allege and incorporate herein all previously alleged paragraphs of the Complaint.
106. Section 504 of the Rehabilitation Act of 1973,29 U.S.C. § 794, and its implementing regulations, prohibit discrimination against persons with disabilities by recipients of federal funding. Section 504 of the Rehabilitation Act provides, in pertinent part, that
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no otherwise qualified individual with a disability ... 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 ... 107. An "individual with a disability" is defined under the statute, in pertinent part, as "an individual who has a physical or mental impairment that substantially limits one or more major life activities of such individual." 29 U.S.C. § 705(20)(B) (referencing 42 U.S.C. § 12102). "Otherwise qualified" means a person who "meets the essential eligibility requirements for participation in, or receipt of benefits from, that program or activity." 28 C.F.R. § 39.103. 108. The named Plaintiffs, members of organizational Plaintiffs, and the class are individuals with disabilities within the meaning of the statute as they have impairments which limit one or more major life activities (e.g., walking, hearing, seeing). Such individuals are otherwise qualified as they are located in New York City and thus, eligible for the benefits for the City'S emergency preparedness program. Hence, named Plaintiffs, members of organizational Plaintiffs, and the class are otherwise qualified individuals with disabilities within the meaning of29 U.S.C. § 705(20)(B) and the implementing regulations. 109. The City ofNew York and the Office of the Mayor receive federal financial assistance to provide New York City's emergency preparedness program. 110. By failing to plan to meet the unique needs of persons with disabilities during an emergency, Defendants have excluded them from participation in, denied them the benefits of, and discriminated against them in an emergency preparedness program that receives federal financial assistance, solely by reason of their disabilities, in violation of29 U.S.C. § 794 and its implementing regulations. 111. As a proximate result of Defendants' violations of Section 504 of the Rehabilitation Act, Plaintiffs have been injured as set forth herein. 112. Defendants' conduct constitutes an ongoing and continuous violation of Section 504 of the Rehabilitation Act and unless restrained from doing so, Defendants will continue to
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violate said law. This conduct, unless enjoined, will continue to inflict injuries for which Plaintiffs have no adequate remedy at law. Plaintiffs will suffer irreparable harm in that they will continue to be discriminated against and denied access to New York City's emergency preparedness program. Consequently, Plaintiffs are entitled to injunctive relief, as well as reasonable attorneys' fees and costs.
WHEREFORE, Plaintiffs pray for relief as set forth below. II
THIRD CAUSE OF ACTION VIOLATION OF THE NEW YORK CITY HUMAN RIGHTS LAW
(N.Y.c. ADMIN. CODE § 8-101 ET. SEQ.) 113. Plaintiffs re-allege and incorporate herein all previously alleged paragraphs of the Complaint. 114. The New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code § 8107(4)(a), provides that "[i]t shall be an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place or provider of public accommodation because ofthe actual or perceived ... disability ... status of any person directly or indirectly, to refuse, withhold from or deny to such person any ofthe accommodations, advantages, facilities or privileges thereof ..." 115. The term "person" includes governmental bodies or agencies. N.Y.C. Admin. Code § 8-1 02(1). New York City is a governmental body or agency and thus is a person within the meaning ofN.Y.C. Admin. Code § 8-102(1). Mayor Bloomberg is being sued in his official capacity as the chief executive of a governmental body or agency. 116. The term "place or provider of public accommodation" includes "providers, whether licensed or unlicensed, of goods, services, facilities, accommodations, advantages or privileges of any kind, and places whether licensed or unlicensed, where goods, services, facilities, accommodations, advantages or privileges of any kind are extended, offered, sold or otherwise made available." N.Y.C. Admin Code § 8-102(9). The City'S emergency preparedness program constitutes a public accommodation as it is a service, accommodation,
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advantage, or privilege offered to the general public and thus falls within the meaning ofN.Y.C. Admin Code § 8-102(9).
117. Defendants, as persons under the statute, act as the "managers" ofthe City's emergency preparedness program, a public accommodation. In so doing, the City of New York and Mayor Bloomberg directly and indirectly deny to persons with disabilities the accommodations, advantages, facilities or privileges of the emergency preparedness program for the reasons set forth herein.
118. The NYCHRL additionally requires that any person prohibited from discriminating under Section 8-107 on the basis of disability "shall make reasonable accommodation to enable a person with a disability to ... enjoy the right or rights in question provided that the disability is known or should have been known by the covered entity." N.Y.C. Admin. Code § 8-107(15). The term "covered entity" is defined as a person required to comply with any provision of Section 8-107 which includes Defendants under N.Y.C. Admin. Code § 8102(1).
119. The City of New York and Mayor Bloomberg in his official capacity qualify as covered entities and must make the reasonable accommodations necessary to allow persons with disabilities the opportunity to enjoy the right of benefiting from the City's emergency preparedness program pursuant to N.Y.C. Admin. Code § 8-107(15). Defendants have made inadequate or no reasonable accommodations to allow persons with disabilities the opportunity to enjoy the right of benefiting from the City's emergency preparedness program.
120. As a proximate result of Defendants' violations of the NYCHRL, Plaintiffs have been injured as set forth herein.
121. Defendants' conduct constitutes an ongoing and continuous violation of the NYCHRL and unless restrained from doing so, Defendants will continue to violate said law. This conduct, unless enjoined, will continue to inflict injuries for which Plaintiffs have no adequate remedy at law. Plaintiffs will suffer irreparable harm in that they will continue to be discriminated against and denied the accommodations, advantages, facilities or privileges of the
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City's emergency preparedness program as well as reasonable accommodations which would provide the opportunity to benefit from the City's emergency preparedness program. Consequently, Plaintiffs are entitled to injunctive relief and reasonable attorneys' fees and costs.
WHEREFORE, Plaintiffs pray for relief as set forth below. II
FOURTH CAUSE OF ACTION DECLARATORY RELIEF
122. Plaintiffs re-allege and incorporate herein all previously alleged paragraphs of the Complaint.
123. Plaintiffs contend that Defendants have failed and are failing to comply with applicable laws prohibiting discrimination against persons with disabilities in violation of Title II of the ADA, 42 U.S.C. § 12131 et seq., Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, et seq., and the NYCHRL, N.Y.C. Admin. Code §8-101 et. seq.
124. Defendants disagree with Plaintiffs' contention. 125. A judicial declaration is necessary and appropriate at this time in order that each of the parties may know their respective rights and duties and act accordingly. WHEREFORE, Plaintiff prays for relief as set forth below.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray for relief as follows, including but not limited to: 126. A declaration that Defendants' failure to adequately plan to meet the emergency preparedness needs of persons with disabilities violates the Americans with Disabilities Act, Section 504 of the Rehabilitation Act and the NYCHRL. 127. An order and judgment enjoining Defendants from violating the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and the NYCHRL, and requiring Defendants to develop and implement a emergency preparedness program that addresses the unique needs of people with disabilities during emergencies.
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128. Plaintiffs' reasonable attorneys' fees and costs.

129. Such other and further relief as the Court deems just and proper.

II

II

II

Dated: New York, NY September 26,2011

DISABILITY RIGHTS ADVOCATES

By: R(JMP333)
ts Advocates ,10th Floor 10036 (212) 644-8644 (212) 644-8636 general@dralegal.org

SID WOLINSKY (CA Bar No. 33716)*

MARY-LEE K. SMITH (CA Bar No. 239086)*

Disability Rights Advocates

2001 Center Street, Fourth Floor

Berkeley, CA 94704

Telephone: (510) 665-8644

Facsimile: (510) 665-8511

TTY:

(510) 665-8716

Email:

general@dralegal.org

*Motions for admission pro hac vice forthcoming. Attorneys for Plaintiffs.

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 Case 1:11-cv-06690-JMF Document 31 Filed 06/29/12 Page 1 of 31

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK X
--------------------------------------------------------· . Case No. 11-cv-6690 (JMF)
BROOKLYN CENTER FOR

INDEPENDENCE OF THE DISABLED, a

nonprofit organization, CENTER FOR

INDEPENDENCE OF THE DISABLED,

NEW YORK, a nonprofit organization, GREGORY D. BELL and TANIA MORALES

CLASS ACTION FIRST AMENDED COMPLAINT FOR DISCRIMINATION;

Plaintiffs,

INJUNCTIVE AND DECLARATORY RELIEF

-against-

MICHAEL R. BLOOMBERG, in his official capacity as Mayor of the City ofNew York, and the CITY OF NEW YORK

Defendants.
X

INTRODUCTION
1. This class action lawsuit challenges the long-term, multiple and serious failures by Mayor Bloomberg and the City ofNew York to address the critical needs of men, women, and children with disabilities in planning for emergencies and disasters. Although the Mayor and the City have created emergency plans for the general population, they have failed to plan appropriately for the nearly 900,000 disabled persons within New York City who are especially vulnerable during disasters.
2. Hurricanes, terrorist attacks, floods, fires, and winter storms are a few ofthe many potential emergencies that New York City and its residents must face. The failure of Mayor Bloomberg (hereafter sometimes the "Mayor") and the City ofNew York (hereafter sometimes the "City") to plan for the unique needs ofNew Yorkers with disabilities creates severe

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hardships for people with disabilities and can be life threatening to them during these emergencies.
3. Effective emergency preparedness and planning must include certain essential components, such as provision for shelter and care for people forced to evacuate their homes, public notification and communication before and during emergencies, and assistance with evacuation and transportation from affected areas. The City ofNew York has made and continues to make substantial efforts and has spent and continues to spend considerable resources addressing such components for the general public.
4. However, with respect to each of these essential components, the Mayor and the City have failed to consider and address the different, yet critical, needs of persons with disabilities.
5. Specific emergencies such as Hurricane Irene and September 11th highlight the glaring deficiencies in New York City's emergency preparedness efforts for persons with disabilities. Yet these specific events are merely a symptom ofthe current underlying problem: Mayor Bloomberg and the City ofNew York's ongoing failure to prepare for the unique needs of persons with disabilities during emergencies. This failure to plan puts the lives and health of persons with disabilities in unnecessary danger.
6. The City ofNew York has been on notice for at least ten years that emergency preparedness for persons with disabilities is lacking. During and following the September 11th terrorist attack, men, women and children with disabilities were disproportionately harmed. Persons with mobility disabilities who wanted to evacuate the World Trade Center buildings were unable to do so because there were no evacuation chairs or other evacuation assistance or planning provided for persons with mobility disabilities. These individuals did not even have the choice of whether or not to leave and were essentially trapped and left to die.
7. During recovery efforts after September 11th, the City paid little attention to the unique needs of persons with disabilities. Personal attendants and aides for persons with disabilities were not allowed into the "frozen zone," leaving many persons with disabilities who lived in the frozen zone without assistance to perform daily life activities such as dressing,
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eating, and toileting. Many shelters and disaster assistance centers serving people evacuated from the frozen zone could not be accessed by residents with mobility disabilities, and the centers did not have signs and printed materials that were readable by men and women with vision disabilities. No plans were made for providing replacement medical equipment or supplies for persons with disabilities. Transportation was interrupted, leaving persons with disabilities without accessible transportation to vital emergency services being offered to the general public.
8. One other illustration ofNew York City's failure to plan for disability needs in emergencies was made painfully evident by Hurricane Irene. During that disaster, New Yorkers with disabilities had no idea if or how they could be evacuated, what shelters, if any, were accessible, how they would obtain life-sustaining medications, or how they could be transported when buses and subways stopped running.
9. New York's failure to plan for physically accessible shelters was also illustrated during Irene. In fact, despite assurances from the City that shelters would be accessible, many of the shelters that were open to the public were not accessible to persons with disabilities. Ramps into shelters were often makeshift or too steep and dangerous to use. Other ramps that should have been usable led to locked doors for which shelter volunteers did not have keys. Signage for persons with vision disabilities also led to locked doors. Bathrooms in the shelters were inaccessible. Only 26% of the shelters opened, which were located in public schools, were listed on New York City's Department ofEducation website as somewhat or completely accessible. This did not include the shelters which had ramps that led to locked doors.
10. Hurricane Irene also illustrated the City's failure to provide for accessible emergency notifications. In fact, emergency hurricaine notifications were often inaccessible to persons with vision and hearing disabilities. Evacuation maps from the City included text that was too small and colors with poor contrast. Evacuation zone maps were also not accessible to screen readers. Televised emergency announcements from City officials did not include American Sign Language interpreters.
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11. New York's emergency plans rely heavily on the City's largely inaccessible public transportation systems. These systems however do not work for evacuation of persons with disabilities before or during an emergency. In fact, in anticipation of Hurricane Irene, Mayor Bloomberg shut down bus, subway and paratransit services. He noted that if evacuating after that time "you'll have to walk, or you're going to find some way to use a car or taxi." The Mayor stated later that a number of cabs had been directed to go to evacuation zones, and liveries and commuter vans had been authorized to pick up street hails anywhere in the City. However, because only 1.8% of all yellow taxicabs and only .02% of for-hire vehicles are accessible to persons using wheelchairs, disabled people could not use cabs for evacuation. The Mayor also pointed to the availability of school buses for evacuation. However, these school buses had no lifts or accessible seating areas for persons with mobility disabilities.
12. Defendants' emergency preparedness efforts for persons with disabilities are woefully deficient in that they do not adequately plan for notifying persons with sensory disabilities before and during emergencies, for evacuating persons with mobility disabilities from their homes, for providing accessible transportation to shelters and back, for providing shelters that are architecturally accessible and identifying these to persons with disabilities, and for providing assistance to persons with disabilities during recovery after an emergency.
13. Mayor Bloomberg and New York City have discriminated against men, women, and children with disabilities by failing to address their unique needs during emergencies. This suit challenges this ongoing failure and seeks to ensure that vulnerable New Yorkers with disabilities are included in the City's emergency preparedness and planning.
JURISDICTION 14. This is an action for declaratory and injunctive relief brought pursuant to Section 504 of the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. § 794, et seq., Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12131, et seq., and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code §8-101 et seq. This Court has subject
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matter jurisdiction over the Rehabilitation Act and ADA claims pursuant to 28 U.S.C. §§ 1331 and 1343 and supplemental jurisdiction over the NYCHRL claim pursuant to 28 U.S.C. § 1367.
15. This Court has jurisdiction to issue declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202.
VENUE 16. Pursuant to 28 U.S.C. § 1391(b), venue is proper in the District in which this
Complaint is filed, because Defendants are located within this District and a substantial part of the events or omissions giving rise to the claims alleged herein occurred in this District.
PARTIES
17. Organizational PlaintiffBrooklyn Center for Independence ofthe Disabled ("BCID") is an independent living center based in Brooklyn. Founded in 1956, BCID is a consumer-based, non-profit, membership organization, providing services and advocacy toward independent living for individuals with disabilities.
18. BCID is dedicated to guaranteeing the civil rights of people with disabilities. BCID seeks to improve the quality of life of Brooklyn residents with disabilities through programs that empower them to gain greater control of their lives and achieve full and equal integration into society. BCID accomplishes this goal through its services, its advocacy for systems change to remove physical, attitudinal and communication barriers to people with disabilities, and through its education and awareness programs. Accordingly, the interests that BCID seeks to protect through this litigation are germane to its mission and purpose.
19. BCID has about 50 dues paying members. Direct assistance to members and consumers is a central purpose ofBCID's existence. BCID has been a membership organization from its inception which is now over half a century ago. Members, in addition to donors and BCID Board officers, are sent a BCID newsletter periodically.
20. BCID's staff regularly interacts with members at formal groups that meet regularly. These groups are part of BCID fulfilling its mission, and the members in these groups influence
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decision-making within BCID and how BCID performs its mission. Both these groups are considered to be part ofthe organizational structure ofBCID.
21. The Support Group is a group of BCID members which meets weekly. The Support Group is chaired by BCID's Program Director. BCID's Support Group consists of20 persons with disabilities. Virtually all of the Support Group members are also members ofBCID. BCID Support Group members maintain an active dialogue with BCID staff, and the BCID executive director about individual concerns and issues they wish to see the organization address.
22. BCID' s Brooklyn Assistance Change Network meets monthly and is also a group where BCID staff and BCID members and consumers communicate about organizational goals. The Brooklyn Assistance Change Network deals specifically with removing barriers to full participation in the community. This group has a number of specific projects, and meets at BCID monthly for several hours to discuss these projects. There are 15 to 20 persons in this group. This group is made up of members and consumers.
23. In addition to identifying concerns and issues during meetings, the Brooklyn Assistance Change Network members and consumers regularly communicate with the Executive Director expressing concerns about various issues. These concerns inform the advocacy issues that BCID decides to advocate for or against.
24. The executive director reports directly to BCID's board of directors and is responsible for implementing the vision of the board of directors, supervising employees, and making sure that the programs and activities undertaken by BCID were consistent with the board of directors' decisions and instructions. BCID's executive director from 2007 to 2011, Marvin Wasserman, has authored several articles on emergency preparedness for persons with disabilities. He is a
person with a disability. For several years, Mr. Wasserman has actively advocated and lobbied for enhanced high rise evacuation techniques for persons with disabilities. Mr. Wasserman has
been a disability advocate for over thirty five years. Mr. Wasserman reported to the BCID board of directors during his tenure, he sat on the board prior to his tenure, and sits on the board again today.
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25. Individuals on BCID's board of directors are also all members of the organization. The BCID board of directors is the group of BCID members that directly controls the organizations objectives and activities. BCID's board of directors was advised about this lawsuit. Before this lawsuit was filed, BCID's board of directors was advised by the executive director about BCID's concerns about New York's emergency preparedness for persons with disabilities.
26. There are 15 members to BCID's board of directors. BCID's board meets monthly. BCID's board has elected officers including a President, Vice President, and Secretary. There is a membership subcommittee of the board of directors focused on BCID members. There are monthly board member meeting minutes which are sent to the board after meetings, and approved by the board.
27. BCID's organizational advocacy and direct service work is based on a close association with its constituents. BCID serves about 1,400 persons with disabilities every year. The majority ofBCID's staff, board members, and volunteers have disabilities themselves.
28. BCID has been concerned for many years about how the City plans to meet the needs of persons with disabilities during emergencies. BCID has participated in OEM's special needs advisory group for many years, but believes litigation is necessary due to the lack of progress made by the City on this issue to date. For example, although BCID raised concerned about evacuation from high rise buildings at the special needs advisory committee meetings, their suggestions about high rise evacuations were never incorporated into any plan.
29. BCID engages specifically in advocacy around emergency planning for New Yorkers with disabilities. For example, directly before Hurricane Irene, BCID released a press release regarding the lack of information that people with disabilities, and BCID members, were getting about access to the City's emergency preparations.
30. BCID offered direct assistance to its members and constituents in preparation for Hurricane Irene. For example, directly before Irene, BCID attempted to call all of their 1,400 consumers. BCID's priority was personally calling members and constituents in evacuation
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zones to advise them on evacuation procedures and preparedness for the pending emergency. During those calls, BCID relayed information from the OEM website on the locations of evacuation zones and shelters. Although BCID tried to reach all 1,400 of their consumers, they were not able to reach everyone. BCID was not able to reach everyone because it had limited time and resources with which to conduct this outreach and notification.
31. Prior to Hurricane Irene's landfall, BCID's executive director called OEM to get information on which shelters were accessible. OEM's disability outreach coordinator told Mr. Wasserman that he did not know which shelters were accessible.
32. As persons with disabilities, one or more members ofBCID are suffering injury due to the City's failure to include persons with disabilities in its emergency preparedness and planning efforts. Accordingly, one or more BCID members have standing to sue in their own right. Moreover, since only injunctive and declaratory relief are requested, the participation of individual members in the lawsuit is not required.
33. BCID members, as well as the persons with disabilities who they serve, are presently being harmed by New York City's failure to address the needs of people with disabilities in its emergency plans. Because BCID members and constituents are persons with disabilities including mobility, sensory, and intellectual disabilities- BCID's members and constituents are denied meaningful access to New York's emergency planning and preparedness program and thus are uniquely burdened by New York's failure to address their needs in this program. The failure to make emergency preparedness services accessible harms each member and constituent with a disability.
34. Furthermore, BCID is directly harmed by New York City's and the Mayor's failure to adequately plan for the needs of persons with disabilities during emergencies. Because of such failures, BCID is forced to expend time and resources advocating for its constituents whose needs are not being met. BCID is forced to provide direct assistance to those individuals when government entities are unable to do so. A favorable decision in this case would directly redress these injuries.
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35. Center for Independence ofthe Disabled, New York ("CIDNY") is an independent living center serving persons with disabilities throughout New York City. Founded in 1976, CIDNY is a consumer-based, non-profit organization, providing services and advocacy toward independent living for individuals with disabilities. Currently CIDNY serves about 14,000 persons who have disabilities, as well as families and partners of persons with disabilities in New York City. CIDNY's goal is to ensure full integration, independence and equal opportunity for all people with disabilities by removing barriers to the social, economic, cultural, and civic life of the community. Over half of CIDNY's board members and over seventy percent of CIDNY's staff are persons with disabilities.
36. CIDNY has expended extensive time and resources in addressing emergency preparedness for persons with disabilities. CIDNY helps persons with disabilities prepare themselves for emergencies, including emergencies like Irene, in many ways including educating New Yorkers with disabilities about what they might need in an emergency, helping persons with disabilities to copy essential documents and assemble go-kits, participating in community meetings, and holding worships on emergency preparation for the persons with disabilities that CIDNY serves.
37. CIDNY has worked with OEM on the Special Needs Advisory Committee which OEM convenes at regular intervals. CIDNY representatives participating in the committee have consistently felt that their concerns about disability emergency planning have been ignored. CIDNY personnel on this committee were never shown any of the City's emergency plans and were never given an opportunity to comment on the adequacy of specific plans.
38. CIDNY continues today to advocate for persons with disabilities during emergencies through direct services, such as special outreach to consumers to alert them to emergencies and resources, and through advocacy, such as participating on committees and in meetings with government officials, representing the disability community. CIDNY helps to recruit participants for emergency plan drills and practice exercises. Persons with disabilities have reported to
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CIDNY personnel that they have been turned away from emergency preparation drills held by the City.
39. Immediately following the September 11th attack, CIDNY stepped into the role the City should have already been prepared to play. CIDNY rapidly developed a Disaster Relief Services program which provided (1) direct services to persons with disabilities directly affected by the emergency, (2) education, training and technical assistance to relief and other service providing agencies and (3) outreach to persons with disabilities who did not come forward seeking help in the first weeks after the attack.
40. During and directly after 9/11, CIDNY observed that people with disabilities were not able to evacuate the high-rise buildings, were unable to obtain accessible transportation, and were unable to obtain accessible shelter. CIDNY observed that during and after 9/11 persons with disabilities had difficulty due to lost medical equipment, medications, hearing aids, glasses and other such equipment and that they had great difficulty finding replacements for these items. CIDNY also observed that the shelters used during 9/11 had signs and materials that were not readable by people with limited vision, there were no American Sign Language interpreters for people with hearing loss, and people whose aids and attendants did not come back for them were left behind without assistance.
41. Three years after September 11th, CIDNY issued a report entitled "Lessons Learned from the World Trade Center: Emergency Preparedness for People with Disabilities in New York." The report reached several key conclusions:
• Emergency responders, as well as relief and other service agencies, must incorporate into their planning and operations an appropriate strategy for ensuring equitable access to response and recovery services for people with disabilities;
• Relief agencies cannot wait until they are in the middle of a disaster to start training their staff in disability awareness;
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• The day after a disaster is too late for agencies to start doing outreach to make their services known to people with disabilities; and
• During the recovery phase, there must be a priority to restore or address those services and needs most critical to people with disabilities, especially related to access to home attendants, assistive equipment, medication, accessible transportation and temporary shelter, and food delivery.
These lessons have been ignored by the City ofNew York and its Mayor. 42. CIDNY was very active in advising persons with disabilities in New York during
Irene. For example, CIDNY's executive director, Susan Dooha, participated in telephone calls with OEM at 1:OOpm on Friday, Saturday, and Sunday August 26th- 28th, 2011 to get information on how to serve the disability community during Irene. CIDNY personnel also visited shelter sites, and made individual outreach calls to advise persons with disabilities on how to stay safe during the emergency.
43. During Hurricane Irene, CIDNY staff members, under the direction ofMargi Trapani, called persons with disabilities they identified as residents of evacuation zones. During these phone calls, CIDNY staff asked if these New Yorkers with disabilities knew where to evacuate and many did not. CIDNY also discovered from individuals with disabilities that persons with vision loss or blindness were not able to use a screen reader to read the website where shelters were listed because that website was not screen reader accessible.
44. During Hurricane Irene, CIDNYpersonnel, including CIDNY's Susan Dooha, observed locked gates, locked doors, and inaccessible ramps at the shelters used by the City during that emergency. Ms. Dooha visited six shelters on Saturday the 27th of August, 2011. She visited shelters in Manhattan, Brooklyn, and Queens. Ms. Dooha found that the ramps at several of these locations were dangerous, and several lead to locked doors. Ms. Dooha also found debris in the curb cut on the block of one of these shelters making the path of travel to the shelter inaccessible. Ms. Dooha also found that at more than one shelter food and cots had been set up downstairs such that they were inaccessible to a person using a wheelchair. Ms. Dooha
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also took photographs of several of these barriers including shelter entrances that were inaccessible, universal access signage leading to an inaccessible entrance, and transportation offered by the city which was not accessible.
45. Ms. Dooha also found shelter volunteers to lack fundamental knowledge about accessibility. Volunteers did not know that they needed to advise people that they could request accommodations. They did not know that they might have to communicate with people who are deaf. They did not know that food distribution and sleeping areas should be in accessible places in the building and not up a flight of stairs. They did not know how to request accessible equipment if they did not have it. For example, one shelter worker told Ms. Dooha that they did not know how to get accessible cots.
46. When Ms. Dooha spoke to shelter volunteers at the shelters with locked doors volunteers responded in a variety of ways. One told her the door was locked because the volunteers had not thought about the accessible entrance. Another said that they did not know where the key to the accessible entrance was located, or who had the key. Yet another said that the volunteers did not want to unlock the accessible entrance because they did not want people to come in that door.
47. Through its extensive work on emergency preparedness issues for persons with disabilities, and through its active participation in serving the disability community during disasters, CIDNY has experienced various problems with the City's emergency plans. These include, but are not limited to: the methods of notification are not fully accessible, live public announcements are not live captioned or presented with an ASL interpreter, people who use screen readers are not able to access the office of emergency management website to find shelter locations, public transportation is relied on heavily for evacuations and public transportation is overwhelmingly inaccessible, shelters are physically inaccessible because the ramps at many of the buildings used as shelters are too steep, unstable, or lead to locked doors, there are sometimes no curb cuts in front of shelter buildings making getting to the shelter building impossible for a wheelchair user, signage to accessible entrances is often missing or inadequate, bathrooms inside
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shelters are sometimes not accessible, and sheltering services like food distribution or a sleeping area are often administered on multiple levels of a non-elevator building.
48. Every day persons with disabilities contact CIDNY by telephone, in person, and over
email, to seek CIDNY's help, advice, and/or advocacy on disability related issues. CIDNY's purpose as an organization is to respond to these requests and serve this community of New Yorkers with Disabilities. The hardships faced by New Yorkers with disabilities directly determine what advocacy actions CIDNY undertakes.
49. CIDNY board members, as well as the persons with disabilities that CIDNY serves, are presently being harmed by New York City's incomplete emergency plans. Because CIDNY board members and constituents are persons with disabilities- including mobility, sensory, and intellectual and other disabilities- CIDNY's board members and constituents are denied meaningful access to New York's emergency planning and preparedness program and thus are uniquely burdened by New York's failure to address their needs in this program. The failure to address the needs of people with disabilities in emergency planning harms each board member and constituent with a disability.
50. CIDNY's executive director is accountable to this board of directors for the management of the organization including: implementing the board's policies and decisions, aiding it with strategic planning, stewardship of resources, obtaining funding, oversight of personnel, quality assurance, contract compliance, advocacy, and public policy development.
51. CIDNY is directly harmed by New York City's and Mayor's Bloomberg's failure to adequately plan for the needs of persons with disabilities during emergencies. Because of the discriminatory emergency preparations by New York City and Mayor Bloomberg, CIDNY must expend time and resources preparing its constituents for emergencies and advocating for its constituents before, during and after emergencies. CIDNY is forced to provide direct assistance to individuals with disabilities when government entities fail to do so. A favorable decision in this case would directly redress these injuries.
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52. Plaintiff Tania Morales is a resident ofNew York City with a mobility disability that causes her to rely on a wheelchair. She is a qualified individual with a disability within the meaning of all applicable statutes and a member of the proposed class.
53. Ms. Morales currently does not know which, if any, emergency shelters designated by the City ofNew York are accessible to persons using wheelchairs. During Hurricane Irene, Ms. Morales located her nearest emergency shelter using the City's website. Ms. Morales could find no information on the website as to whether the shelter was accessible to persons using wheelchairs. Ms. Morales knew that the shelter was a public school and remembered seeing a ramp leading into the building. Ms. Morales traveled in her motorized wheelchair to the nearest shelter. Ms. Morales was accompanied by her father, Eugenio Morales. The main entrance to the shelter was not accessible. The accessible entrance was at the back of the school. When Ms. Morales and her father reached the accessible entrance at the back of the school, they discovered that the gates to the ramp leading into the building were locked. There were no shelter volunteers at the locked accessible entrance, and Ms. Morales was growing more frightened by the increasingly strong wind and rain. Because she was scared, and the shelter was inaccessible Ms. Morales and her father returned home and remained there for the duration of the hurricane.
54. Ms. Morales also does not have information about whether evacuation transportation will be accessible to persons with disabilities during emergencies or disasters. During Hurricane Irene, for instance, Ms. Morales could not go to another shelter to see if it was accessible because there was no available accessible transportation. Subways, buses and paratransit were shut down. Ms. Morales had no other option but to return home.
55. As a person who uses a wheelchair, Ms. Morales could not, and cannot, access the key components of the City's emergency program. As a result, Ms. Morales, like all people with disabilities in the City ofNew York, suffer fear and apprehension as a result ofNew York's failure to plan for their needs, and are currently exposed to increased risk on a daily basis.
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56. Plaintiff Gregory D. Bell, Sr. is a resident of the Bronx, New York City who is blind. He is a qualified individual with a disability within the meaning of all applicable statutes and a member of the proposed class.
57. Mr. Bell is a Vietnam Veteran and a long time public servant. He is the founder of Insight For New Housing which aids persons with disabilities in finding housing in New York City. He has been honored by various New York State Assembly members as well as the Bronx Borough President. He serves on his local housing and land use committee as well as the economic development comittee and is in charge of the disability ministry at the Church of God of Prophesy. Mr. Bell is also the primary caregiver for his great-grandson.
58. In the event of a future emergency, Mr. Bell is at great risk of suffering because of Defendants' failure to plan for a variety of needs. Moreover, Mr. Bell suffers fear and apprehension as a result ofNew York's failure to plan for his needs, and is currently exposed to increased risk on a daily basis. These include but are not limited to orientation during evacuation and at shelters and temporary housing, receiving information about emergencies in accessible formats, and recovery and remediation efforts such as debris removal at his home.
59. The Plaintiff class consists of all persons with disabilities in the City of New York who have been and are being denied the benefits and advantages ofNew York City's emergency preparedness program because ofMayor Bloomberg and New York City's continuing failure to address the unique need of this population in the City's emergency planning and preparations.
60. Defendant City ofNew York is, according to New York State Executive Law Article 2-B, "the first line of defense in times of disaster." (N.Y. Exc. Law§ 20.l(a)). The City ofNew York is the first level of response for meeting the emergency needs of persons in its jurisdiction. New York City's emergency services include the Police Department (NYPD), Fire Department (FDNY), Fire Department Emergency Medical Services (FDNY-EMS), and Office of Emergency Management (OEM). A number of other City agencies, including the Department of Health and Mental Hygiene (DOHMH), Department of Environmental Protection (DEP), and Department of Buildings (DOB) also have emergency response functions.
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61. Defendant Mayor Bloomberg, in his official capacity, is the chief executive as defined in New York State Executive Law Article 2-B. (N.Y. Exc. Law§ 20.2(f)). As the local chief executive, Mayor Bloomberg is required to "take an active and personal role in the development and implementation of disaster preparedness programs and be vested with authority and responsibility in order to insure the success of such programs." (N.Y. Exc. Law§ 20.l(b)). Moreover, as the local chief executive, only Mayor Bloomberg can declare a local state of emergency covering all or any part ofhisjurisdiction. (N.Y. Exc. Law§ 24.1).
62. Hereafter, reference to "Defendants" shall be deemed to include all named Defendants, and each of them, unless otherwise indicated.
FACTUAL ALLEGATIONS New York City Faces a Variety of Potential Emergencies and Is Extremely Susceptible to
the Effects of these Emergencies 63. With more than 8.2 million people, New York City is the most populous city in the United States and ranks among the largest urban areas in the world. It is also one of the most densely populated cities in the United States with an area ofjust 305 square miles. 64. New York City has developed a complex and interconnected network of transportation and infrastructure systems. However, New York City's defining characteristicsits dense population and complex infrastructure - also increase the potential significance of emergencies and disasters, making it more susceptible to their effects than many other cities. 65. New York City's Office of Emergency Management ("OEM") is an agency charged with preparing for natural disasters such as coastal storms, earthquakes, extreme temperatures, flooding, windstorms, and winter storms. New York City must also be prepared to deal with man-made disasters such as utility interruptions, hazardous spills or toxic releases caused by transportation or industrial accidents, civil disturbances, and terrorist incidents. 66. Over the past 20 years, New York City has endured numerous emergencies and disasters, ranging from hurricanes (e.g., Hurricanes Irene, Isabel and Floyd) to power outages
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(e.g., Northeast Blackout of2003) to terrorist attacks (e.g., February 1993 and September 2001) and winter storms (e.g., Blizzard of 1996, President's Day Storm 2003 and blizzards in 2010-11). An Effective Emergency Preparedness Program Must Include Nine Essential Components.
67. An effective emergency preparedness program must include at least nine essential components. The City ofNew York attempts to make preparations for the general public for each of these components.
68. First, an emergency preparedness program must include the development of comprehensive emergency plans. Such plans must address both specific types of emergencies (e.g., hurricanes) and/or address specific procedures (e.g., evacuation) during emergencies.
69. The City ofNew York has developed such emergency plans. For instance, New York City has emergency plans for coastal storms, winter weather, and heat emergencies. New York City also relies on the Citywide Incident Management System (CIMS) which sets forth roles and responsibilities during emergencies.
70. Second, an emergency preparedness program must include assessments of the efficacy of emergency plans. This requires exercises and drills simulating various emergencies and may require public participants.
71. New York City's OEM has held at least one exercise and/or drill each year since 2002 to test the efficacy of various emergency plans.
72. Third, an emergency preparedness program must include advanced identification of the needs that will arise and resources available to meet those needs during an emergency.
73. The City ofNew York uses the Citywide Asset and Logistics Management System (CALMS) to manage the City's emergency resources and essential skills. CALMS integrates multiple resource management systems and provides a single view of the resources managed or accessible to response agencies.
74. Fourth, an emergency preparedness program must provide plans for public notification and communication prior to, during and after emergencies.
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75. New York City's OEM has a public information plan to undertake such communications. In addition, emergency responders communicate emergency information via bullhorn and door-to-door notifications.
76. Fifth, an emergency preparedness program must provide policies or procedures concerning the concept of "sheltering in place." When evacuation to shelters is either inappropriate or impossible, New York City residents and visitors may be asked to stay where they are (e.g., their own apartment or house) and "shelter in place."
77. New York City has a policy in which persons in its jurisdiction should be prepared to shelter in place for up to three days. This means that persons should have enough food, water, medicine, and other supplies to survive on their own for three days.
78. Sixth, an emergency preparedness program must include plans to provide shelter and care for individuals forced to evacuate their homes during emergencies. Public schools are commonly used as shelters. Care at such shelters includes food, water, sleeping areas, bathroom facilities and medical attention, if necessary.
79. The City ofNew York offers shelter and care for individuals forced to evacuate their homes during emergencies.
80. Seventh, an emergency preparedness program must plan to provide assistance with evacuation and transportation.
81. New York City has an urban search and rescue team that assists in evacuation. In addition, New York City offers transportation for residents and visitors who must evacuate from affected areas during an emergency.
82. Eighth, an emergency preparedness program must include plans for provision of temporary housing when evacuees cannot return to their homes.
83. In the City ofNew York, the Department ofHousing Preservation and Development's Emergency Housing Services Bureau provides emergency relocation services when individuals are not able to reoccupy their residences after evacuation.
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84. Ninth, an emergency preparedness program must have plans for the provision of assistance in recovery and remediation efforts after an emergency or disaster.
85. New York City provides disaster recovery assistance in cooperation with federal and state agencies.
The Unique Needs of Persons with Disabilities Must Be Addressed for Each of The Essential Components But New York City Fails To Do So.
86. While New York City provides each of these nine essential components of emergency preparedness for the general population, it fails to do so for the almost 900,000 New Yorkers with disabilities. New York City's emergency preparedness efforts do not address the unique needs of persons with disabilities during emergencies.
87. In developing its comprehensive emergency plans, a city must include the input of the disability community.
88. However, the City of New York has failed to consistently engage and affirmatively respond to the disability community. OEM, for instance, has involved the disability community on only certain issues, piece-meal and out of context. OEM has never provided a draft of a plan for which the disability community can provide input.
89. As a result, persons with disabilities know very little or nothing of the City's emergency plans. They do not know, for instance, how they will be notified, how and if they will be evacuated, which shelters are accessible, how and if they will be transported and what assistance, if any, they will receive.
90. In assessing the efficacy of its emergency plans, a city must test its plans with regards to persons with disabilities.
91. The City ofNew York has held no drills or exercises to test the efficacy of its plans for persons with disabilities. Indeed New York City has turned away persons with disabilities from participating in emergency drills which are open to the general public.
92. In identifying needs and resources in advance of an emergency, a city must plan for the needs of, and provide the resources specifically for, persons with disabilities. This
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requirement includes, for instance, planning for replacement life-sustaining mediations, consumable medical supplies, and durable medical equipment for persons with disabilities and determining the number of accessible seats available on evacuation buses.
93. New York City has made no such plans to assess the emergency needs of persons with disabilities let alone made plans to ensure that these needs will be met.
94. In notifying and communicating with persons with disabilities prior to and during an emergency, a city must ensure that communications are accessible. This requires, among other accommodations, having plans that provide for captioning or American Sign Language interpreters for persons who are deaf or hard of hearing and that avoid bullhorn type announcements to inform persons of imminent emergencies. This further requires ensuring that websites with emergency information are accessible to screen readers used by persons with no or low vision.
95. New York City has no adequate or effective plans for ensuring accessible notification and communication prior to and during emergencies.
96. When sheltering in place is required, persons with disabilities may need assistance. For example, persons with disabilities may need help in daily life activities (e.g., eating, dressing) which normally would be provided by an aide or caretaker. Persons with disabilities may also be dependent on electricity for respirators, wheelchairs or other assistive technologies which, during power-outages, means persons with disabilities may require immediate assistance. A city must develop specific policies as to how it will address these and other scenarios when persons with disabilities are forced to remain in their homes or apartments during emergencies.
97. New York City has failed to develop such policies. New York City does not, for instance, offer in-home assistance or sheltering options for persons with disabilities whose survival depends on electrically powered equipment when electrical power is disrupted for extended periods of time.
98. When a city provides shelter and mass care to persons forced to evacuate their homes, a city must have plans to ensure that the shelters are free of architectural barriers to persons with
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disabilities. For example, there must be useable ramps instead of stairs, paths of travel throughout the shelter which are wide enough for wheelchairs and bathrooms which are useable by persons with mobility disabilities. A city must conduct surveys of its shelters so it knows which of its shelters are architecturally accessible to persons with disabilities.
99. There must also be programmatic access, ensuring that the mass care offered is equally available to persons with disabilities. For instance, there must be plans to ensure cots usable by men and women with disabilities (allowing persons using wheelchairs to safely transfer to the cot), refrigeration for medications that must be refrigerated (e.g., insulin) and back-up medications, consumable medical supplies and durable medical equipment for persons with disabilities who need these items.
100. The City ofNew York has not adequately surveyed its shelters to ensure that they will be architecturally barrier free during emergencies and fails to identify which of its shelters, if any, are accessible during emergencies. Nor has New York City taken responsibility for ensuring that its shelters are equipped with accessible cots, accessible bathrooms, life-sustaining medications and replacement medical equipment. As a result, shelters have not been and continue not to be accessible to persons with disabilities.
101. If evacuation and transportation from affected areas is necessary, a city must make plans for assisting those who cannot evacuate on their own. For example, persons in wheelchairs or scooters may not be able to leave their building without electricity to operate the elevators. If the physical environment has changed (e.g., rubble, barricades), persons with vision disabilities may have greater difficulty navigating out of the affected areas. A city must also make plans to provide a sufficient amount of transportation that is accessible.
102. New York City has made no such plans to ensure that persons with disabilities will have assistance evacuating or that accessible transportation from affected areas will be provided.
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103. A city must also make plans to ensure that any temporary housing provided to those who cannot return to their homes following an emergency is architecturally accessible to persons with disabilities.
104. New York City has made no such plans that specify how it will ensure that temporary housing is accessible to persons with disabilities.
105. In providing assistance in recovery and remediation efforts after an emergency or disaster, a city must plan for the specific needs of persons with disabilities who may require, for instance, transportation back to their homes from shelters and assistance to restore accessible features (e.g., removing rubble, repairing ramps).
106. The City of New York has made no plans as to how it will specifically assist persons with disabilities during the recovery and remediation phase following an emergency.
107. Because Defendants have failed to provide for the unique needs of persons with disabilities in its emergency preparedness program, Mayor Bloomberg and New York City are denying persons with disabilities meaningful access to New York City's emergency preparedness program and are discriminating against men, women, and children with disabilities.
CLASS ACTION ALLEGATIONS 108. Pursuant to Rule 23(b)(2) ofthe Federal Rules of Civil Procedure, the named Plaintiffs bring this action for injunctive and declaratory relief on their own behalf, on behalf of their members, and on behalf of all persons similarly situated. The class that the named Plaintiffs seek to represent consists of all persons with disabilities in New York City who have been and are being denied the benefits and advantages ofNew York City's emergency preparedness program. 109. The persons in the class are so numerous that joinder of all members ofthe class is impracticable and the disposition of their claims in a class action is a benefit to the parties and to the Court. 110. Data from the United States Census American Community Survey conducted in 2008 indicate that almost 900,000 non-institutionalized New York City residents have a
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disability. Such data further show that more than 180,000 non-institutionalized New York City residents have a hearing disability, more than 210,000 non-institutionalized New York City residents have a vision disability and over 535,000 non-institutionalized New York City residents have a mobility disability.
111. There is a well-defined community of interest in the questions of law and fact involved affecting the parties to be represented, in that named Plaintiffs, members of organizational Plaintiffs and individuals in the class have been and continue to be denied their civil rights of access to, and use and enjoyment ot: the City ofNew York's emergency preparedness program due to Defendants' discriminatory implementation of this program, resulting not only a denial of meaningful access to that program for persons with disabilities but also an extreme and unacceptable risk of death or serious injury to such persons.
112. Common questions of law and fact predominate, including questions raised by Plaintiffs' allegations that Defendants have failed to address the unique needs of persons with disabilities in their emergency planning and that, as a result, key components of Defendants' emergency preparedness program exclude and discriminate against persons with disabilities.
113. The claims of the named Plaintiffs, and their members, are typical and are not in conflict with the interests of the class as a whole. Defendants' omissions and violation of the law as alleged herein has caused named Plaintiffs, Plaintiffs' members and class members to be deprived of the opportunity to effectively utilize Defendants' emergency preparedness program. Therefore, all class members will suffer the same or similar injuries for the purposes of the injunctive and declaratory relief sought. Plaintiffs' claims are thereby representative of and coextensive with the claims of the class.
114. The named Plaintiffs are adequate class representatives because they and their members are directly affected by Defendants' discriminatory implementation of their emergency preparedness program. The interests of the named Plaintiffs are not antagonistic to, or in conflict with, the interests of the class as a whole.
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115. The attorneys representing the class are experienced both in disability law and in class action institutional litigation. Counsel representing the plaintiff class is qualified to fully prosecute this litigation and possesses adequate resources to see this matter through to resolution. Plaintiffs will fairly and adequately represent and protect the interests of the class.
116. Defendants have acted and/or failed to act on grounds generally applicable to the class as a whole, thereby making appropriate final declaratory and injunctive relief with respect to the class as a whole.
FIRST CAUSE OF ACTION FOR VIOLATION OF THE AMERICANS WITH DISABILITIES ACT,
42 U.S.C. § 12131, ET SEQ. 117. Plaintiffs re-allege and incorporate herein all previously alleged paragraphs of the Complaint. 118. Title II ofthe Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132, prohibits a public entity from excluding a person with a disability from participating in or denying the benefits of a program of the public entity to a person with a disability or otherwise discriminating against a person on the basis of disability. Title II provides, in pertinent 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. 119. The term "disability" includes physical and mental impairments that substantially limit one or more major life activities. 42 U.S.C. § 12102(2). A "qualified individual with a disability" means an "individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, 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). 120. The named Plaintiffs, members of organizational Plaintiffs, and the class are persons with disabilities within the meaning of the statute in that they have impairments which
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substantially limit one or more major life activities (e.g., walking, hearing, seeing). They are also qualified in that they are located in New York City and thus, are eligible for the benefits of the City's emergency preparedness program. Thus, named Plaintiffs, members of organizational Plaintiffs, and the class are qualified individuals with disabilities within the meaning of 42 U.S.C. § 12102,42 U.S.C. § 12131, and 28 C.F.R. § 35.104.
121. A "public entity" includes state and local governments, their agencies, and their instrumentalities. 42 U.S.C. § 12131(1). Defendant New York City is a public entity within the meaning of 42 U.S.C. § 12131 and 28 C.F.R. § 35.104. Mayor Bloomberg is being sued in his official capacity as the chief executive of New York City.
122. By failing to plan to meet the unique needs of persons with disabilities during an emergency, Defendants have excluded them from participation in, denied them the benefits of, and discriminated against them in an emergency preparedness program offered by a public entity, in violation of 42 U.S.C.§ 12132.
123. Congress directed the Department of Justice ("DOJ") to promulgate regulations implementing Title II's prohibition against discrimination. 42 U.S.C. § 12134. Pursuant to this mandate, the DOJ has issued regulations defining the forms of discrimination prohibited by Title
II ofthe ADA. 28 C.F.R. § 35.101 et. seq.
124. Pursuant to 28 C.F.R. § 35.130(b)(l)(i), (ii) and (vii), a public entity, in providing any aid, benefit, or service, may not directly or through contractual, licensing, or other arrangements, on the basis of disability (1) deny qualified individuals with disabilities the opportunity to participate in or benefit from the aid, benefit, or service; (2) afford qualified individuals with disabilities an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded to others or (3) otherwise limit qualified individuals with disabilities in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service.
125. Defendants provide an aid, benefit, or service in the form of an emergency preparedness program. However, they do so in an unequal manner which denies or limits the
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ability of disabled men, women, and children to enjoy the benefits as others can. For instance, because New York City's emergency plans do not ensure shelters are architecturally accessible, persons using wheelchairs may be turned away and because New York City's plans do not ensure accessible communication, persons with vision disabilities may be limited in how they are notified about imminent emergencies.
126. Pursuant to 28 C.F.R. § 35.130(b)(3)(i), a public entity may not, directly or through contractual or other arrangements, utilize methods of administration that have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability.
127. Defendants may not avoid their responsibility to address the unique needs of persons with disabilities during emergencies by delegating responsibility to other agencies or organizations such as the American Red Cross. That is, even if the American Red Cross is charged with managing shelters, it is New York City's ultimate responsibility to ensure, for instance, that refrigeration, life-sustaining medications, durable medical equipment, and service animal facilities are provided at its shelters.
128. Pursuant to 28 C.F.R. § 35.130(b)(4), a public entity may not, in determining the site or location of a facility, make selections that have the effect of excluding individuals with disabilities from, denying them the benefits of, or otherwise subjecting them to discrimination.
129. Defendants claim to know which shelters are accessible to persons with disabilities. However, there is no evidence that New York City hired any trained professionals to ensure that shelters are indeed architecturally and programmatically accessible. Indeed during the most recent emergency, Hurricane Irene, New York City opened several shelters that were not architecturally accessible to persons using wheelchairs.
130. Pursuant to 28 C.F.R. § 35.130(b)(7), a public entity shall make reasonable modifications in policies, practices or procedures when modifications are necessary to avoid discrimination on the basis of disability.
131. Defendants have utterly failed to provide reasonable modifications. For example, Defendants have not modified their policy of sheltering in place for three days in order to assist
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persons with disabilities who may not, because of their disability, be able to remain in their homes for three days without any assistance.
132. As a proximate result of Defendants' violations of Title II of the ADA, Plaintiffs have been injured as set forth herein.
133. Defendants' conduct constitutes an ongoing and continuous violation of the ADA and unless restrained from doing so, Defendants will continue to violate said law. This conduct, unless enjoined, will continue to inflict injuries for which Plaintiffs have no adequate remedy at law. Plaintiffs will suffer irreparable harm in that they will continue to be discriminated against and denied access to New York City's emergency preparedness program. Consequently, Plaintiffs are entitled to injunctive relief pursuant to section 308 of the ADA (42 U.S.C. § 12188), as well as reasonable attorneys' fees and costs.
WHEREFORE, Plaintiffs pray for relief as set forth below. SECOND CAUSE OF ACTION
VIOLATION OF SECTION 504 OF THE REHABILITATION ACT OF 1973 (29 U.S.C. § 794, ET SEQ.)
134. Plaintiffs re-allege and incorporate herein all previously alleged paragraphs ofthe Complaint.
135. Section 504 ofthe Rehabilitation Act of 1973, 29 U.S.C. § 794, and its implementing regulations, prohibit discrimination against persons with disabilities by recipients of federal funding. Section 504 of the Rehabilitation Act provides, in pertinent part, that
no otherwise qualified individual with a disability ... 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 ... 136. An "individual with a disability" is defined under the statute, in pertinent part, as "an individual who has a physical or mental impairment that substantially limits one or more major life activities of such individual." 29 U.S.C. § 705(20)(B) (referencing 42 U.S.C. § 121 02). "Otherwise qualified" means a person who "meets the essential eligibility
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requirements for participation in, or receipt of benefits from, that program or activity." 28 C.F.R. § 39.103.
137. The named Plaintiffs, members of organizational Plaintiffs, and the class are individuals with disabilities within the meaning of the statute as they have impairments which limit one or more major life activities (e.g., walking, hearing, seeing). Such individuals are otherwise qualified as they are located in New York City and thus, eligible for the benefits for the City's emergency preparedness program. Hence, named Plaintiffs, members of organizational Plaintiffs, and the class are otherwise qualified individuals with disabilities within the meaning of29 U.S.C. § 705(20)(B) and the implementing regulations.
138. The City ofNew York and the Office of the Mayor receive federal financial assistance to provide New York City's emergency preparedness program.
139. By failing to plan to meet the unique needs of persons with disabilities during an emergency, Defendants have excluded them from participation in, denied them the benefits of, and discriminated against them in an emergency preparedness program that receives federal financial assistance, solely by reason of their disabilities, in violation of29 U.S.C. § 794 and its implementing regulations.
140. As a proximate result of Defendants' violations of Section 504 of the Rehabilitation Act, Plaintiffs have been injured as set forth herein.
141. Defendants' conduct constitutes an ongoing and continuous violation of Section 504 of the Rehabilitation Act and unless restrained from doing so, Defendants will continue to violate said law. This conduct, unless enjoined, will continue to inflict injuries for which Plaintiffs have no adequate remedy at law. Plaintiffs will suffer irreparable harm in that they will continue to be discriminated against and denied access to New York City's emergency preparedness program. Consequently, Plaintiffs are entitled to injunctive relief, as well as reasonable attorneys' fees and costs.
WHEREFORE, Plaintiffs pray for relief as set forth below.
THIRD CAUSE OF ACTION
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Case 1:11-cv-06690-JMF Document 31 Filed 06/29/12 Page 29 of 31
VIOLATION OF THE NEW YORK CITY HUMAN RIGHTS LAW (N.Y.C. ADMIN. CODE§ 8-101 ET. SEQ.)
142. Plaintiffs re-allege and incorporate herein all previously alleged paragraphs of the Complaint.
143. The New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code§ 8107(4)(a), provides that "[i]t shall be an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place or provider of public accommodation because of the actual or perceived ... disability ... status of any person directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof ..."
144. The term "person" includes governmental bodies or agencies. N.Y.C. Admin. Code § 8-1 02(1). New York City is a governmental body or agency and thus is a person within the meaning ofN.Y.C. Admin. Code§ 8-102(1). Mayor Bloomberg is being sued in his official capacity as the chief executive of a governmental body or agency.
145. The term "place or provider of public accommodation" includes "providers, whether licensed or unlicensed, of goods, services, facilities, accommodations, advantages or privileges of any kind, and places whether licensed or unlicensed, where goods, services, facilities, accommodations, advantages or privileges of any kind are extended, offered, sold or otherwise made available." N.Y.C. Admin Code§ 8-102(9). The City's emergency preparedness program constitutes a public accommodation as it is a service, accommodation, advantage, or privilege offered to the general public and thus falls within the meaning ofN.Y.C. Admin Code § 8-1 02(9).
146. Defendants, as persons under the statute, act as the "managers" of the City's emergency preparedness program, a public accommodation. In so doing, the City ofNew York and Mayor Bloomberg directly and indirectly deny to persons with disabilities the accommodations, advantages, facilities or privileges of the emergency preparedness program for the reasons set forth herein.
29

Case 1:11-cv-06690-JMF Document 31 Filed 06/29/12 Page 30 of 31
147. The NYCHRL additionally requires that any person prohibited from discriminating under Section 8-1 07 on the basis of disability "shall make reasonable accommodation to enable a person with a disability to ... enjoy the right or rights in question provided that the disability is known or should have been known by the covered entity." N.Y.C. Admin. Code§ 8-107(15). The term "covered entity" is defined as a person required to comply with any provision of Section 8-107 which includes Defendants under N.Y.C. Admin. Code § 8102(1).
148. The City of New York and Mayor Bloomberg in his official capacity qualify as covered entities and must make the reasonable accommodations necessary to allow persons with disabilities the opportunity to enjoy the right of benefiting from the City's emergency preparedness program pursuant to N.Y.C. Admin. Code§ 8-107(15). Defendants have made inadequate or no reasonable accommodations to allow persons with disabilities the opportunity to enjoy the right of benefiting from the City's emergency preparedness program.
149. As a proximate result of Defendants' violations of the NYCHRL, Plaintiffs have been injured as set forth herein.
150. Defendants' conduct constitutes an ongoing and continuous violation of the NYCHRL and unless restrained from doing so, Defendants will continue to violate said law. This conduct, unless enjoined, will continue to inflict injuries for which Plaintiffs have no adequate remedy at law. Plaintiffs will suffer irreparable harm in that they will continue to be discriminated against and denied the accommodations, advantages, facilities or privileges ofthe City's emergency preparedness program as well as reasonable accommodations which would provide the opportunity to benefit from the City's emergency preparedness program. Consequently, Plaintiffs are entitled to injunctive relief and reasonable attorneys' fees and costs.
WHEREFORE, Plaintiffs pray for relief as set forth below.
FOURTH CAUSE OF ACTION DECLARATORY RELIEF
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Case 1:11-cv-06690-JMF Document 31 Filed 06/29/12 Page 31 of 31
151. Plaintiffs re-allege and incorporate herein all previously alleged paragraphs of the Complaint.
152. Plaintiffs contend that Defendants have failed and are failing to comply with applicable laws prohibiting discrimination against persons with disabilities in violation of Title II of the ADA, 42 U.S.C. § 12131 et seq., Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, et seq., and the NYCHRL. N.Y.C. Admin. Code §8-101 et. seq.
153. Defendants disagree with Plaintiffs' contention. 154. A judicial declaration is necessary and appropriate at this time in order that each ofthe parties may know their respective rights and duties and act accordingly. WHEREFORE, Plaintiff prays for relief as set forth below.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs pray for relief as follows, including but not limited to:

155. A declaration that Defendants' failure to adequately plan to meet the emergency

preparedness needs ofpersons with disabilities violates the Americans with Disabilities Act,

Section 504 of the Rehabilitation Act and the NYCHRL.

156. An order and judgment enjoining Defendants from violating the Americans with

Disabilities Act, Section 504 ofthe Rehabilitation Act, and the NYCHRL, and requiring

Defendants to develop and implement a emergency preparedness program that addresses the

unique needs of people with disabilities during emergencies.

157. Plaintiffs' reasonable attorneys' fees and costs.

158. Dated: New York, NY
June [1, 2012

urt deems just and proper.
"

DISABILITY RIGHTS ADVOCATES JULIA PINOVER (JMP333) Disability Rights Advocates 1560 Broadway, lOth Floor

31

 
 Case 1:11-cv-06690-JMF Document 82 Filed 11/1r6-/u1s2DCPaSgDeN1Yof 19

UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF NEW YORK
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THE DISABLED, a nonprofit organization, CENTER

FOR INDEPENDENCE OF THE DISABLED, NEW

YORK, a nonprofit organization, GREGORY D. BELL,

11 Civ. 6690 (JN F)

and TANIA MORALES,

OPINION AND OF DER

Plaintiffs,

-v-
MICHAEL R. BLOOMBERG, in his official capacity as Mayor of the City ofNew York, and THE CITY OF NEW YORK,
Defendants.
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JESSE M. FURMAN, United States District Judge:

This case - filed shortly after Hurricane Irene in 2011 - raises the question of v hether

the City ofNew York's emergency preparedness plans adequately address the needs ofp ople

with disabilities. Brooklyn Center for Independence of the Disabled ("BCID") and the C nter

for the Independence ofthe Disabled, New York ("CIDNY"), two non-profit organizatio s,

along with Gregory D. Bell and Tania Morales, two individual plaintiffs, bring suit again t the

City ofNew York (the "City") and Mayor Michael R. Bloomberg under Section 504 oft e

Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 United States Code, Section 794, e seq.;

Title II of the Americans with Disabilities Act ("ADA"), 42 United States Code, Section 2131; and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Administrative Code, ~ection

8-101, et. seq., alleging a systematic failure to address the needs of persons with disabilit es in

the City's emergency and disaster planning. (Amended Compl. '1!'1!1, 14).

Case 1:11-cv-06690-JMF Document 82 Filed 11/16/12 Page 2 of 19
Trial in this matter is scheduled for December 10, 2012. The question now pendi g before the Court is not whether the plaintiffs' allegations have merit, but whether the cas should proceed as a class action. On August 31,2012, the plaintiffs moved to certify the followi under Federal Rules of Civil Procedure 23(a) and (b)(2): "all persons with disabilities in e City ofNew York who have been and are being denied the benefits and advantages ofNew Y rk City's emergency preparedness program because ofMayor Bloomberg and New York Ci y's continuing failure to address the unique need of this population in the City's emergency anning and preparations." (Mot. to Certify Class (Docket No. 35)). Defendants oppose the moti n, principally on the ground that plaintiffs lack standing to bring their claims because they proved an "injury in fact." (Defs.' Mem. in Opp'n to Pis.' Mot. to Certify Class ("Defs.' pp'n Mem.") at 2 (Docket No. 59)). The motion was fully submitted on September 24, 2012.
For the reasons discussed below, plaintiffs' motion to certify the class is GRANT modified and subject to comment from the parties. 1
BACKGROUND
The City's Office of Emergency Management ("OEM") is responsible for planni g and preparing for emergencies, educating the public about preparedness for emergencies, coordinating emergency responses and recovery efforts, and collecting and disseminatin emergency information to the public. (Parks Decl. Ex. Gat 1 (Docket No. 51)). Part of mandate is to develop written, city-wide plans to address emergencies that might befall
On August 31, 2012, plaintiffs filed a motion to seal their unredacted memorand of points and authorities in support of their motion for class certification. (Docket No. 52). basis for their motion, plaintiffs cite the fact that defendants designated a number of doc ents discussed in the memorandum as confidential. Inexplicably, defendants did not respond o the motion. Nevertheless, and although it is not clear to the Court why some of this material should be kept confidential, this Opinion and Order has been redacted in keeping with plaintiffs motion pending comment by the parties as discussed below.
2

Case 1:11-cv-06690-JMF Document 82 Filed 11/16/12 Page 3 of 19
(See id. Ex. H). These plans cover emergencies ranging from natural disasters (for exam hurricanes, floods, and winter weather) to other miscellaneous hazards (for example, do ed trees, power interruptions, and oil spills). (Jd.).
Plaintiffs in this action allege that the City's emergency plans are either inadequa with respect to the needs of people with disabilities or that they fail to provide for their needs tirely. (See Mem. in Support of Mot. to Certify Class ("Pis.' Mem.") at 3). In particular, the pl identify four alleged problems with the City's emergency plans. First, they contend that e City's plans for evacuations are over-reliant on public transportation. During an evacuaf City expects trains, subways, buses, and other public transportation to move evacuees to safety. (See id. at 5). Yet many of these methods of transportation, plaintiffs claim, are inaccessible to people with mobility disabilities, and the City has put forward no practic deal with that problem. (Id.).
Second, plaintiffs assert that the City has no plan for evacuation of people with disabilities from high-rise buildings. The plaintiffs contend that "no information is prov· ed as to what someone who uses a wheelchair or scooter or walker, or who has a heart conditi is supposed to do instead of using the elevator in a multi-story building." (Id. at 6).
Third, according to plaintiffs, the emergency shelter system is ineffective for peo le with disabilities. (Id. at 7). For instance, in one disaster scenario, disability-related supplies ill be stockpiled only at eight designated "special medical needs shelters" to which not all peo le with disabilities are expected to be evacuated. (Id. at 7-8). Moreover, because the City itself allegedly does not know, the public has not been informed as to which shelters are physi ally accessible by people with disabilities and which are not. Indeed, plaintiffs contend that any shelters are not accessible to people with certain disabilities at all. (Id.).
3

Case 1:11-cv-06690-JMF Document 82 Filed 11/16/12 Page 4 of 19

Finally, plaintiffs quarrel with the City's assumption, upon which many of its em

plans are based, that New Yorkers will need to survive for three days after an emergency ithout

public assistance. (!d. at 9). Many people with disabilities, they argue, may need assista e

sooner and the City has no plans for "prioritization of services for people with disabilitie

that period." (Pls.' Reply Mem. of Law ("Pls.' Reply Mem.") at 3).

Plaintiffs seek a declaration from this Court that the above failures (and others) vi

the ADA, the Rehabilitation Act, and the NYCHRL. (Amended Compl. ~ 155). In addit

they seek an injunction requiring the City to develop and implement an emergency prep

program that addresses the unique needs of people with disabilities. (!d.~ 156). For the

moment, however, the sole issue before the Court is plaintiffs' motion to certify a plainti class

of "all persons with disabilities in the City of New York who have been and are being de ied the

benefits and advantages ofNew York City's emergency preparedness program because Mayor

Bloomberg and New York City's continuing failure to address the unique need ofthis po ulation

in the City's emergency planning and preparations." (Mot. to Certify Class).

DISCUSSION

A. Standing

In opposing class certification, defendants argue principally that both the individ

plaintiffs and the organizational plaintiffs lack standing. Standing "is a threshold questi

antecedent to class certification- that requires plaintiffs to have been personally injure

"

Pub. Emps. Ret. Sys. v. Merrill Lynch & Co., 714 F. Supp. 2d 475,480-81 (S.D.N.Y. 20 ).

More specifically, to have standing,

[1] the plaintiff[s] must have suffered an injury in fact that is both concrete and particularized and actual or imminent, not conjectural or hypothetical; [2] there must be a causal connection between the injury and the conduct complained of

4

Case 1:11-cv-06690-JMF Document 82 Filed 11/16/12 Page 5 of 19
such that the injury is fairly traceable to the challenged action of the defendant[s]; and [3] it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Bryant v. NY State Educ. Dep 't, 692 F.3d 202, 211 (2d Cir. 2012) (quoting Lujan v. Defi ofWildlife, 504 U.S. 555,560-61 (1992) (internal quotation marks omitted)). In the present case, defendants contend that the plaintiffs have not suffered an "in fact" sufficient to confer standing. (See Defs.' Opp'n Mem. at 2). Significantly, althoug plaintiffs' burden to establish such injury, see Roxbury Taxpayers Alliance v. Delaware Bd. ofSupervisors, 80 F.3d 42, 47 (2d Cir. 1996), "plaintiffs are not required to prove inj -mfact at the class certification stage," In re Amaranth Natural Gas Commodities Litig., 26 366, 379 (S.D.N.Y. 2010). Instead, at this stage in the litigation, plaintiffs need only pro erly allege such an injury. See, e.g., Denney v. Deutsche BankAG, 443 F.3d 253,263 (2d Cir 2006) (explaining that, for purposes of determining standing, the court '"must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party' (i.e., the class members)" (quoting Warth v. Seldin, 422 U.S. 490, 50 (1975))). 1. The Individual Plaintiffs Have Standing Applying these standards here, Bell and Morales - the individual plaintiffs - h e standing to pursue claims against the defendants, at least to the extent those claims relate individual disabilities. It may be true, as defendants contend, that neither plaintiff suffer a concrete injury during Hurricane Irene that could be fairly traced to the City's emergenc planning or procedures. (See Defs.' Opp'n Mem. at 10-12). But that contention misses of plaintiffs' claims. The gravamen of plaintiffs' claims is, first and foremost, that they been, and continue to be, deprived of benefits afforded to other citizens- namely, the b nefits
5

Case 1:11-cv-06690-JMF Document 82 Filed 11/16/12 Page 6 of 19
of an adequate emergency preparedness program. (See Pls.' Reply Mem. at 2; Amended ompl. ~~ 1-13). Plaintiffs' allegations may or may not be true -that will be determined at tria -but they are sufficient at this stage to establish plaintiffs' standing. Cf Henrietta D. v. Bloo erg, 331 F.3d 261, 274 (2d Cir. 2003) (stating that, under the ADA, public entities are "prohi from affording to persons with disabilities services that are 'not equal to that afforded o 'not as effective in affording equal opportunity'" and that, under the Rehabilitation Act, reasonable accommodation must be made "to the known physical or mental limitations o an otherwise qualified handicapped applicant or employee" (quoting 28 C.F.R. §§ 35.130(b 1), 41.53 (2002))).
In addition, Bell and Morales have standing based on the threat of future harm an the fear and apprehension caused by it. (See Amended Compl. ~~55, 58; see also Pls.' Repl Mem. at 3). To be sure, the threat of future harm gives rise to standing only where the likeliho of such harm is "sufficiently real and immediate to show an existing controversy." City of Angeles v. Lyons, 461 U.S. 95, 103 (1983) (quoting O'Shea v. Littleton, 414 U.S. 488,4 (1974)); see also, e.g., Baur v. Veneman, 352 F.3d 625,636 (2d Cir. 2003) (holding that anxiety must be based on more than "mere conjecture" to confer standing). But "one do s not have to await the consummation of threatened injury to obtain preventive relief. If the i ury is certainly impending, that is enough." Babbitt v. United Farm Workers Nat'! Union, 442 .S. 289,298 (1979) (quoting Pennsylvania v. West Virginia, 262 U.S. 553, 593 (1923)). M "[t]he difference between a threatened injury and a conjectural one is a matter of degree, d since no precise test exists, each case must be considered on an individual basis." Allian e of Am. Insurers v. Cuomo, 854 F.2d 591, 596 (2d Cir. 1988). Notably, where the threatene injury is particularly severe, courts are more likely to find standing. See, e.g., Baur v. Venema 352
6

Case 1:11-cv-06690-JMF Document 82 Filed 11/16/12 Page 7 of 19
F.3d 625, 637 (2d Cir. 2003) ("Because the evaluation of risk is qualitative, the probabilit of harm which a plaintiff must demonstrate in order to allege a cognizable injury-in-fact log· varies with the severity of the probable harm."). Similarly, courts are more inclined to fi standing if "there is no better time" to resolve the issues raised by the parties -that is, w en they "will be in no better position later than ... now." Alliance ofAm. Insurers, 854 F.2 (quoting Regional Rail Reorganization Act Cases, 419 U.S. 102, 145 (1974)).
Weighing these considerations here, the alleged injuries in this case are more sub than in many cases where plaintiffs have been found to have standing. See, e.g., Denney, F.3d at 264-65 (holding that class members who had conducted transactions based upon allegedly improper and fraudulent tax counseling had standing even though many were li ely "insulated from exposure" to penalties by the statute oflimitations); Baur, 352 F.3d at 62 (holding that "exposure to an enhanced risk of disease transmission may qualify as inju fact"); Caudle v. Towers, Perrin, Forster & Crosby, 580 F. Supp. 2d 273, 279-80 (S.D.N . 2008) (holding that the risk of future identity theft and fraud arising from the theft of a la top containing personal information was sufficient to confer standing). It is, of course, not p ssible to know with certainty if or when disaster will strike the City, but- as the tragic events fthe past few weeks make abundantly clear- it is beyond "mere conjecture" that another dis ster, whether natural or manmade, will occur and that it will seriously affect members of the class. Baur, 352 F.3d at 636; cf Hargrave v. Vermont, 340 F.3d 27, 34 (2d Cir. 2003) ( ding that the threat of a statute's enforcement was sufficient to confer standing). Additionally at the extreme, plaintiffs are threatened with an increased risk of death or serious injury. Finall , a court would be in no better position later than now to resolve the claims presented. Inde d, to conclude otherwise would be perverse, as it would mean that plaintiffs could bring their laims
7

Case 1:11-cv-06690-JMF Document 82 Filed 11/16/12 Page 8 of 19
only after their worst fears had been realized. See, e.g., Chang v. United States, 327 F.3d 11, 921 (9th Cir. 2003) (noting that the "court does not require Damocles's sword to fall be£ recogniz[ing] the realistic danger of sustaining a direct injury" (internal quotation marks omitted)). Accordingly, the individual plaintiffs have standing in the instant action.
2. The Organizational Plaintiffs Also Have Standing In any event, BCID and CIDNY also have standing to pursue the claims in this c e. There are two ways for an organization to establish standing. First, an organization may ave standing solely as a representative of its members. See, e.g., Disability Advocates, Inc. v. NY Coal. for Quality Assisted Living, Inc., 675 F.3d 149, 156-57 (2d Cir. 2012) ("DIA"); Ba o v. Union Carbide Corp., 361 F.3d 696, 713 (2d Cir. 2004). An association has standing to suit on behalf of its members when "(a) its members would otherwise have standing to s m their own right; (b) the interests it seeks to protect are germane to the organization's pu (c) neither the claim asserted nor the relief requested requires the participation of individ al members in the lawsuit." DIA, 675 F.3d at 157 (quoting Hunt v. Washington State Appl Comm 'n, 432 U.S. 333, 343 (1977)). The first two of these requirements are constitutio m nature; the third is "prudential" and "best seen as focusing on ... matters of administrati e convenience and efficiency." Alliance for Open Soc'y Int'l, Inc. v. USAID, 651 F.3d 21 (2d Cir. 2011) (quoting United Food & Commercial Workers Union Local 751 v. Brown rp., 517 U.S. 544, 555-56 (1996)). Alternatively, an organization may establish standing to sue on its own behalf so ong as it can independently satisfy the requirements of Article III standing- namely, injury-in act, a causal connection, and redressability. See, e.g., Nnebe v. Daus, 644 F.3d 147, 156 (2d Cr. 2011). Significantly, in Nnebe, the Second Circuit made clear that "scant" evidence of" nly a
8

Case 1:11-cv-06690-JMF Document 82 Filed 11/16/12 Page 9 of 19
perceptible impairment of an organization's activities is necessary for there to be an inju in fact." Id at 157 (internal quotation marks omitted). In that case, the court held that the w York Taxi Workers Alliance ("NYTWA") had standing to challenge the City's policy of automatically suspending the licenses of taxi drivers who were arrested on criminal char s given evidence that the organization "expended resources to assist its members who face summary suspension by providing initial counseling, explaining the suspension rules to and assisting the drivers in obtaining attorneys." Id at 157. "Even if only a few suspend d drivers are counseled by NYTWA in a year," the court reasoned, "there is some percepti e opportunity cost expended by the [NYTWA], because the expenditure of resources that c uld be spent on other activities 'constitutes far more than simply a setback to [NYTWA's] abstr ct social interests."' Id (quoting Havens Realty Corp. v. Coleman, 455 U.S. 363,379 (198 )).
The organizational plaintiffs in this case have both associational and direct standi g. First, BCID plainly satisfies the test for associational standing. As alleged in the compla t, it is a membership organization; its members include people with disabilities, who have stan their own right for the reasons explained above; the interests it seeks to protect are germ purpose, which is to "provid[e] services and advocacy toward independent living for ind· iduals with disabilities"; and neither the claims asserted nor the relief requested require the part ipation of individual members, as the complaint seeks city-wide injunctive relief rather than d (Amended Compl. ~~ 17-34). Aside from disputing that BCID's members have standin in their own right, defendants' sole argument in the face of these allegations is that BCI "refuse[d]" to identify any of its members by name. (Defs.' Opp'n Mem. at 16). Defen have pointed to no cases suggesting that there is such a requirement for purposes of esta standing, however. At this stage, it is enough that BCID alleges that it is a membership
9

Case 1:11-cv-06690-JMF Document 82 Filed 11/16/12 Page 10 of 19
organization and that its members include people with disabilities. See In re Amaranth tural Gas Commodities Litig., 269 F.R.D. at 379.
CIDNY' s case for associational standing is weaker only because it is apparently n t a membership organization. Nevertheless, it is well established "that- assuming the othe criteria for associational standing are met- non-membership organizations may sue in a representative capacity when they function effectively as a membership organization." 'A, 675 F.3d at 157 (quoting In re Holocaust Victim Assets Litig., 225 F.3d 191, 196 (2d Cir. 200 ) (internal quotation marks and brackets omitted). That is the case here, as CIDNY' s purp se "is to respond to ... requests [from people with disabilities] and serve th[e] community ofN w Yorkers with disabilities." (Dooha Decl. ~ 8). Moreover, among other things, over half f CIDNY' s board members and over seventy percent of CIDNY's staff are allegedly perso s with disabilities. (Amended Compl. ~ 35). In short, CIDNY is a "service provider[] managed and directed by persons with disabilities for the purpose of serving persons with disabilities." (Pls.' Reply Mem. at 8). As such, it has sufficient "indicia of membership" to "function effecf ely as a membership organization" for the purposes of associational standing. DIA, 675 F.3d a 157 (quoting In re Holocaust Victim Assets Litig., 225 F.3d 191, 196 (2d Cir. 2000)); see als 158-59 (looking for the "indicia of membership," such as whether the people purported! represented by the relevant organization "have the power to elect its directors, make bud et decisions, or influence [its] activities or litigation strategies").
In any event, even if BCID and CIDNY did not have standing to bring this suit o behalf oftheir (real or functional) members, they have standing to sue on their own behalf. As lleged in both the amended complaint and documents submitted in support of the present motio , both organizations have expended considerable resources counseling constituents, gathering d
10

Case 1:11-cv-06690-JMF Document 82 Filed 11/16/12 Page 11 of 19
coordinating information, and documenting problems with the City's plans. (See Pls.' M m. at 6). For example, before Hurricane Irene, BCID issued a press release and attempted to c 1its 1,400 members and constituents in evacuation zones to advise them of proper evacuation procedures. (See Wasserman Decl. ~~ 7-8). CIDNY representatives visited shelters duri g Hurricane Irene to assess accessibility and interviewed volunteers to determine their leve of knowledge about issues related to people with disabilities. (See Dooha Decl. ~~ 27-30). Weighed against the "scant" evidence found sufficient to confer standing in Nnebe, this is plainly enough for BCID and CIDNY to sue on their own behalf. 644 F.3d at 157 (int al quotation marks omitted). Notably, in arguing otherwise, defendants not only ignore the Circuit's decision in Nnebe, but they rely on out-of-circuit precedent expressly rejected i Nnebe. (Defs.' Opp'n Mem. at 17 (citing Fair Hous. Council v. Montgomery Newspapers, 141 F 3d 71, 78 (3d Cir. 1998), cited inNnebe, 644 F.3d at 157)).
Defendants also maintain that the organizational plaintiffs lack standing because e outreach and services they provide are "precisely the type of services that they routinely rovide as part oftheir respective organizational missions." (Defs.' Opp'n Mem. at 17-18). But s the Nnebe court made clear, "so long as the economic effect on an organization is real, the organization does not lose standing simply because the proximate cause of that economi injury is 'the organization's noneconomic interest in encouraging [a particular policy preferenc ]."' 644 F.3d at 157 (quoting Havens Realty Corp., 455 U.S. at 379 n.20). B. Class Certification
Having found that plaintiffs have standing to pursue their claims, the Court turns o whether the proposed class should be certified. Plaintiffs seeking class certification mus first meet the requirements of Rule 23(a) of the Federal Rules of Civil Procedure- namely:
11

Case 1:11-cv-06690-JMF Document 82 Filed 11/16/12 Page 12 of 19
numerosity, commonality, typicality, and adequacy of representation. See FED. R. CIV. P. 23(a). If those threshold requirements are met, the proposed class must also fit within one of the subdivisions of Rule 23(b). See FED. R. CIV. P. 23(b); see also, e.g., Brown v. Kelly, 609 .3d 467, 475-76 (2d Cir. 2010). In determining whether to certify a class, a district court is r uired to consider only the allegations set forth in the complaint and to take all of plaintiffs' alle ations as true. See, e.g., Shelter Realty Corp. v. Allied Maint. Corp., 574 F.2d 656, 661 n.15 (2 Cir. 1978). Plaintiffs bear the burden of showing, by a preponderance of the evidence, that th requirements of Rule 23 are met. See Teamsters Local 445 Freight Div. Pension Fund v. Bombardier, Inc., 546 F.3d 196, 201-04 (2d Cir. 2008).
The Court will address each of the Rule 23 requirements in turn. 1. Numerosity The first requirement for class certification- the only requirement defendants r lly contest (see Defs.' Opp'n Mem. at 24-25)- is that "the class is so numerous thatjoinde of all members is impracticable." FED. R. Clv. P. 23(a)(1). The Second Circuit has held that "numerosity is presumed at a level of 40 members." Consolidated Rail Corp. v. Town o Park, 47 F.3d 473, 483 (2d Cir. 1995). At the same time, "[c]ourts have not required evi ence of exact class size or identity of class members in order to satisfy the numerosity requireme t." Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir. 1993). Moreover, insofar as practicabili is the ultimate touchstone of the analysis, courts are instructed to consider all the circumstance surrounding the case, not merely the number of potential class members. See id. at 936. "Relevant considerations include judicial economy arising from the avoidance of a multi licity of actions, geographic dispersion of class members, financial resources of class member the ability of claimants to institute individual suits, and requests for prospective injunctive r
12

Case 1:11-cv-06690-JMF Document 82 Filed 11/16/12 Page 13 of 19
which would involve future class members." !d. Here, the proposed class easily satisfies the numerosity requirement.
2008 American Community Survey from the United States Census Bureau- "a recogni d data set to determine the population of people with disabilities" (Blanck Decl. ~ 15 & Ex. B at 5) plaintiffs estimate that there are roughly 900,000 people with disabilities in New York Ci (Pls.' Mem. at 13), a number clearly rendering joinder impracticable. Moreover, given the inj nature of the relief requested, the diverse financial resources of the class members, and burden on the court system of multiple, individual requests for injunctive relief, certificat on is plainly appropriate under Rule 23(a)(1). In contending otherwise, defendants largely reh arguments about standing (Defs.' Opp'n Mem. at 22-24), rejected above. In addition, de assert that plaintiffs have come forward with no more than "pure speculation" about the the proposed class. (Defs.' Opp'n Mem. at 24). But that assertion is based on the same fundamental misunderstanding of plaintiffs' claims that drove defendants' arguments ab standing. As discussed above, the gravamen of plaintiffs' claims is not that they or other members were injured during Hurricane Irene or some other disaster, but that they have deprived of a benefit- namely, appropriate emergency preparedness planning- that the population has been given. Put simply, the relevant class of people is therefore all p with disabilities in the City. Accordingly, the numerosity requirement is plainly satisfie
2. Commonality The second requirement for class certification is that "there are questions of law common to the class." FED. R. Civ. P. 23(a)(2). Members of the class must have claims "depend upon a common contention," that is "capable of classwide resolution- which that determination of its truth or falsity will resolve an issue that is central to the validity
13

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one of the claims in one stroke." Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 ( 011). The test for commonality, however, '"is not demanding' and is met so long as there is at ast one issue common to the class." Raymond v. Rowland, 220 F.R.D. 173, 179 (2004) (Kra itz, J.) (quoting Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 625 (5th Cir. 1999)).
Plaintiffs have met this burden. To be sure, the class members have diverse disa and will not all be affected by the alleged omissions in the City's plan the same way.2 B t "[c]ommonality does not mandate that all class members make identical claims and ar ents, only that common issues of fact or law affect all class members." Stinson v. City ofN.Y. 282 F.R.D. 360, 369 (S.D.N.Y. 2012) (quoting Triefv. Dun & Bradstreet Corp., 144 F.R.D. 93, 198 (S.D.N.Y. 1992)); see also Port Auth. Police Benevolent Ass 'n v. Port Auth., 698 F.2d 1 , 15354 (2d Cir. 1983)). In other words, "[a] court may find a common issue oflaw even tho exists some factual variation among class members' specific grievances." Stinson, 282 369 (quoting Dupler v. Costco Wholesale Corp., 249 F.R.D. 29, 37 (E.D.N.Y. 2008)). issue is a City-wide policy and its alleged failure to take into account the needs of disabl d citizens. This issue is common to the proposed class because it challenges "acts and om· sion of the [City] that are not specific to any particular Plaintiff." Raymond, 220 F.R.D. at 180; ee also Henrietta D. v. Giuliani, No. 95 Civ. 0641 (SJ), 1996 WL 633382, at *14 (E.D.N.Y. Oc 25, 1996)). Accordingly, the commonality requirement has been met.

2

According to the Amended Complaint, approximately 180,000 non-institutionali ed New

York City residents have a hearing disability, approximately 210,000 non-institutionaliz New

York City residents have a vision disability, and approximately 535,000 non-institution ized

New York City residents have a mobility disability. (Amended Compl. ~ 11 0).

14

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3. Typicality The third Rule 23(a) requirement is that "the claims or defenses of the representat e parties are typical of [those] ofthe class." FED. R. Civ. P. 23(a)(3). The Supreme Court as observed that "the commonality and typicality requirements of Rule 23(a) tend to merge. Gen. Tel. Co. ofthe Southwest v. Falcon, 457 U.S. 147, 157 n.13 (1982). More specifically, t "is satisfied when each class member's claim arises from the same course of events and class member makes similar legal arguments to prove the defendant's liability." Sykes v. el Harris & Assocs. LLC, 09 Civ. 8486 (DC), 2012 U.S. Dist. LEXIS 125336, 17-18 (S.D. .Y. Sept. 4, 2012) (quoting Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 155 2d Cir. 2001)). Where, as here, the alleged "injuries derive from a unitary course of conduct by single system," typicality is generally found. Marisol A. v. Giuliani, 126 F.3d 372, 377 (2d Cir 1997). Based on the above discussion of commonality, and the fact that, together, the named pl ntiffs have "mobility, speech, hearing, vision, and mental health disabilities, as well as chronic illnesses" (Pls.' Reply Mem. at 9-1 0), the representatives satisfy the typicality requireme t. 4. Adequacy of Representation Finally, Rule 23(a)(4) requires that the class representatives will "fairly and adeq ately protect the interests of the class." FED. R. CIV. P. 23(a)(4). In particular, the Court must nquire as to whether "1) plaintiffs interests are antagonistic to the interest of other members of e class and 2) plaintiffs attorneys are qualified, experienced and able to conduct the litigation." Baffa v. Donaldson, Lufkin & Jenrette Sees. Corp., 222 F.3d 52, 60 (2d Cir. 2000). Here, there i no dispute that these conditions are met. The plaintiffs, both individual and organizational, e advocating for equal treatment for all people with disabilities under the City's emergenc plan, and there is no indication of any conflict between them and the members of the class.
15

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Additionally, plaintiffs' counsel are experienced litigators. Indeed, Disability Rights Ad cates
has successfully litigated a similar case regarding emergency preparedness in California. See Parks Decl. ~ 8). Accordingly, the adequacy of representation requirement is satisfied. 3
5. Rule 23(b)
The Rule 23(a) requirements having been met, the only remaining question is wh
proposed class falls within one of the categories set forth in Rule 23(b). That question is
resolved, as the proposed class plainly satisfies Rule 23(b)(2), which applies when "the p y
opposing the class has acted or refused to act on grounds that apply generally to the class
the final injunctive relief or corresponding declaratory relief is appropriate respecting the
a whole." FED. R. Crv. P. 23(b)(2). Plaintiffs allege that defendants have failed to act to
the interests of the class as a whole by ignoring the unique problems faced by people wit
disabilities in times of emergency. Instead of seeking damages, they seek only injunctiv
which would require the City to address the alleged deficiencies and plainly benefit the p oposed
class as a whole. Notably, cases like this one, "alleging systemic failure of govemmenta bodies
to properly fulfill statutory requirements, have been held to be appropriate for class certi cation
under Rule 23(b)(2)." Raymond, 220 F.R.D. at 181 (citing Brown v. Giuliani, 158 F.R. 251,
In addition to the requirements set forth in Rule 23(a), the Second Circuit recogn· es an implied requirement of"ascertainability." In re Initial Pub. Offering ("!PO") Sec. Litig. 471 F.3d 24, 45 (2d Cir. 2006). It is not clear that the ascertainability requirement applies to ule 23(b)(2) class actions, however, as notice is not obligatory and the relief sought is injunc ive rather than compensatory. See, e.g., Animal Sci. Prods., Inc. v. Hebei Welcome Pharm. o. (In re Vitamin C Antitrust Litig.), 279 F.R.D. 90, 116 (E.D.N.Y. 2012) (explaining that "the ascertainability requirement is less important in a Rule 23(b)(2) class, since a chief obje ive of this rule is to provide broad injunctive relief to 'large and amorphous' classes not capabl certification under Rule 23(b)(3)" (quoting Marisol A., 126 F.3d at 378)). In any event, requirement does apply, class members need not be ascertainable prior to class certificat need only be ascertainable at some point in the case. See In re !PO Sec. Litig., 471 F.3d Here, there is a clear enough delineation of the class for the Court to determine whether particular individual is a member in this case.
16

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269 (E.D.N.Y. 1994)). Indeed, courts have held that "[c]lass certification under Rule 23( )(2) is particularly appropriate in civil rights litigation." Stinson, 282 F.R.D. at 379 (citing Lope v. NYC Police Dep't, 135 F.R.D. 81, 83 (S.D.N.Y. 1991)). Accordingly, the Court holds at class certification under Rule 23(b)(2) is appropriate in this case. C. The Proposed Class Definition
For the foregoing reasons, certification of a plaintiff class is appropriate in this ca e. The next question is whether the definition of the class proposed by plaintiffs- namely, "all ersons with disabilities in the City ofNew York who have been and are being denied the benefi and advantages ofNew York City's emergency preparedness program because ofMayor Blo mberg and New York City's continuing failure to address the unique need of this population in e City's emergency planning and preparations" (Mot. to Certify Class)- is an appropriat Under Rule 23, district courts have the power to amend class definitions or decertify cla necessary. See, e.g., Morangelli v. Chemed Corp., 275 F.R.D. 99, 114 (E.D.N.Y. 2011) (explaining that "[t]he court may, in its discretion ... modify the definition of the propo to provide the necessary precision or to correct other deficiencies") (quoting 5 James W Moore et al., Moore's Federal Practice§ 23.21[6]). "In fact, the court has a duty to ens the class is properly constituted and has broad discretion to modify the class definition a appropriate to provide the necessary precision." !d.
In the Court's view, the plaintiffs' proposed class definition here is potentially problematic insofar as it appears to presume a finding in plaintiffs' favor on the merits. or example, if it turns out that defendants did not "fail[] to address the unique need" of the isabled population, an argument could be made - after the fact - that the plaintiff class lacke members. That, in tum, could effectively undermine the value of defendants' victory.
17

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Seventh Circuit explained in rejecting a similarly conclusory class definition: Using a future decision on the merits to specify the scope of the class makes it impossible to determine who is in the class until the case ends, and it creates the prospect that, if the employer should prevail on the merits, this would deprive the judgment of preclusive effect: any other former worker could file a new suit, given that the losing 'class' lacked any members.
Bolden v. Walsh Constr. Co., 688 F.3d 893, 895 (7th Cir. 2012). Accordingly, using as a model the class certified in the similar challenge to the
emergency preparedness plans of the City of Los Angeles, see Communities Actively Livi g Indep. & Free v. City ofLos Angeles, CV 09-0287 (CBM) (RZX), 2011 WL 4595993, at (C.D. Cal. Feb. 10, 2011), the Court intends to certify the following class: "All people w· disabilities, as defined by the Americans with Disabilities Act, who are within the City o New York and the jurisdiction served by the City ofNew York's emergency preparedness pro rams and services." Before doing so, however, the Court will allow each party an opportunity o comment on the proposed class definition as modified. If no objections are raised, the C urt will certify the class as proposed without further notice.
CONCLUSION For the foregoing reasons, plaintiffs' motion for class certification is hereby G TED as modified and subject to comment from the parties. Absent objections, the Court will plaintiff class consisting of the following: "All people with disabilities, as defined by the Americans with Disabilities Act, who are within the City of New York and the jurisdicti n served by the City ofNew York's emergency preparedness programs and services." Th parties shall have until November 13, 2012, at 12:00 p.m., to submit letter objections, not to ex eed three pages, regarding the Court's proposed class definition. It is further ORDERED that defendants have until November 19, 2012, to respo d to
18

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plaintiffs' motion to seal, showing good cause why maintaining the relevant materials un er seal is consistent with the presumption of access created by both the common law and the Fir Amendment. See, e.g., Lugosch v. Pyramid Co. ofOnondaga, 435 F.3d 110, 126 (2d Cir 2006). In any such response, defendants shall also address whether there is a basis to maintain unredacted version of this Opinion and Order under seal. Absent a response, the Court publicly file the unredacted version of this Opinion and Order and deny plaintiffs' motio without further notice to the parties. In the meantime, the Clerk of Court is directed to m intain the unredacted version of this Opinion and Order under seal.
It is important to note that the fact that plaintiffs have carried their burden at this age, and class certification is appropriate, is not to say that the plaintiff class is entitled to the elief it ultimately seeks. It may be, as defendants vigorously assert, that the plaintiffs' claims ar "patently false" and that the City has "carefully developed sophisticated operational and logistical plans and supporting resources that effectively serve the health and safety nee of all New Yorkers during emergencies, including those with disabilities." (Defs.' Opp'n Me . at 12). The fact that plaintiffs have carried their present burden is only to say that they have atisfied the requirements for proceeding by way of a class action. Whether they ultimately prev be determined at the trial scheduled to begin on December 10, 2012.

SO ORDERED.

Dated: November 7, 2012 New York, New York

United States District Judg

19

 
 Case 1:11-cv-06690-JMF Document 151 Filed 05/10/13 Page 1 of 31

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

------------------------------ ---- -x

BROOKLYN CENTER FOR INDEPENDENCE :

OF THE DISABLED, a nonprofit organization, :

CENTER FOR INDEPENDENCE OF THE

:

DISABLED, NEW YORK, a nonprofit

:

organization, GREGORY BELL, an individual, :

and TANIA MORALES, an individual,

:

:

Plaintiffs, :

:

- against -

:

:

MICHAEL R. BLOOMBERG, in his official

:

Capacity as Mayor of the City of New York, and :

the CITY OF NEW YORK,

:

:

Defendants. :

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

No. 11 Civ. 6690 (JMF)

STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA

REBECCA S. TINIO Assistant United States Attorney
- Of Counsel -

PREET BHARARA United States Attorney for the Southern District of New York 86 Chambers Street, Third Floor New York, New York 10007 Tel.: (212) 637-2774 Fax: (212) 637-2702 Email: rebecca.tinio@usdoj.gov

Case 1:11-cv-06690-JMF Document 151 Filed 05/10/13 Page 2 of 31

TABLE OF CONTENTS

PRELIMINARY STATEMENT .........................................................................................1

STATUTORY AND REGULATORY BACKGROUND...................................................4

A. Title II of the ADA ..................................................................................................5

B. DOJ Regulations ......................................................................................................7

C. Federal Guidance Regarding the Implementation of Title II and the Importance of Advance Planning..................................................10

ARGUMENT .....................................................................................................................13

NEW YORK CITY’S EMERGENCY MANAGEMENT PLANS DO NOT ADEQUATELY PROTECT THE RIGHTS OF INDIVIDUALS WITH DISABILITIES UNDER TITLE II AND ITS IMPLEMENTING REGULATIONS .........................................................................13

A. Accessibility of Evacuation Centers and General Population Shelters ...................................................................................................................14

B. Transportation and Evacuation ..............................................................................17

C. Communications ....................................................................................................21

1. Failure to comply with DOJ Regulations regarding

accessible

communications in and relating to shelters ..............................21

2. Additional violations of DOJ Regulations regarding

communications

.........................................................................................24

CONCLUSION ..................................................................................................................25

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TABLE OF AUTHORITIES

CASES

PAGE

Alexander v. Choate, 469 U.S. 287 (1985).............................................................................................................6

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).............................................................................................................8

Civic Association of Deaf of New York City, Inc. v. Giuliani, 915 F. Supp. 622 (S.D.N.Y. 1996).......................................................................................8

Communities Actively Living Independent and Free v. City of Los Angeles, No. CV 09-0287 CBM (RZx), 2011 WL 4595993 (C.D. Cal. Feb. 10, 2011) ....................6

Henrietta D. v. Bloomberg, 331 F.3d 261 (2d Cir. 2003).............................................................................................5, 6

Innovative Health System, Inc. v. City of White Plains, 931 F. Supp. 222 (S.D.N.Y. 1996).......................................................................................5

K.M. ex rel. D.G. v. Hyde Park Central Sch. District, 381 F. Supp. 2d 343 (S.D.N.Y. 2005)..................................................................................6

Olmstead v. L.C. ex re. Zimring, 527 U.S. 581 (1999).............................................................................................................8

PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001).........................................................................................................5, 4

Tcherepnin v. Knight, 389 U.S. 332 (1967).............................................................................................................5

Tennessee v. Lane, 541 U.S. 509 (2004).............................................................................................................6

Zervos v. Verizon N.Y., Inc., 252 F.3d 163 (2d Cir. 2001).................................................................................................5

FEDERAL STATUTES AND REGULATIONS

42 U.S.C. § 12101(b) .......................................................................................................................4

42 U.S.C. § 12131............................................................................................................................5

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42 U.S.C. § 12131(1)(A)..................................................................................................................3 42 U.S.C. § 12132......................................................................................................................3,5,9 42 U.S.C. § 12134........................................................................................................................4, 5 42 U.S.C. § 12206(a)(1),(c)(1), (c)(2)(B)(i), (c)(3) .......................................................................10 28 C.F.R. § 130(b)(1)(i)-(iii)............................................................................................................9 28 C.F.R. § 35.103(a).......................................................................................................................6 28 C.F.R. § 35.130(a).......................................................................................................................9 28 C.F.R. § 35.130(b)(7)..........................................................................................................4, 6, 9 28 C.F.R. § 35.130(b)(4)(i)-(ii)............................................................................................9, 14, 17 28 C.F.R. § 35.130(b)(7)................................................................................................................25 28 C.F.R. § 35.130(d) ......................................................................................................................8 28 C.F.R. § 35.149 .....................................................................................................................9, 17 28 C.F.R. § 35.150(a).......................................................................................................3, 9, 16, 17 28 C.F.R. § 35.150(a)(3) ..........................................................................................................15, 25 28 C.F.R. § 35.151 (a)(1),(b)(1).......................................................................................................9 28 C.F.R. § 35.160(a)(1) ............................................................................................................9, 21 28 C.F.R. § 35.160(b)(1)-(2)..........................................................................................................21 28 C.F.R. § 35.163(a)...................................................................................................21, 22, 23, 24 28 C.F.R. § 35.163(b) ....................................................................................................................24 28 C.F.R. § 35.164 ...................................................................................................................24, 25 28 C.F.R. § 35.190(a).....................................................................................................................10 28 U.S.C. § 517................................................................................................................................1 29 U.S.C. § 794(a) ...........................................................................................................................5

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42 U.S.C. § 12101............................................................................................................................1 LEGISLATIVE HISTORY H.R. Rep. No. 101-485 (II), at 50 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 332 ....................4

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The United States, by its attorney, Preet Bharara, United States Attorney for the Southern

District of New York, respectfully submits this Statement of Interest, pursuant to 28 U.S.C. § 517,1 in support of Plaintiffs, regarding the applicability of the Americans with Disabilities Act

of 1990, as amended, (“ADA”), 42 U.S.C. § 12101, et seq., and Section 504 of the Rehabilitation

Act of 1973 (“Section 504”), 29 U.S.C. § 794, et seq., to Defendants’ municipal emergency management and preparedness plans.2

PRELIMINARY STATEMENT

New York City is one of the most densely populated cities in the United States, with more than 8.2 million people occupying just 305 square miles. See Trial Ex. 33 at CNY017703.3

The very characteristics that define the City, however – “its dense population, international

stature, and complex infrastructure – also increase the potential significance of hazards, making

it more susceptible to their effects than many other cities.” Id. Among natural hazards alone,

New York City is vulnerable to a variety of notice and no-notice disasters, including coastal

erosion, coastal storms, drought, earthquakes, extreme temperatures, flooding, windstorms and

tornadoes, and winter storms. Id. at CNY017702.

Emergency threats to the City’s resources and infrastructure have a unique impact on

individuals with disabilities. As Plaintiffs demonstrated at trial, limited accessible transportation,

1

28 U.S.C. § 517 states that “[t]he Solicitor General, or any officer of the Department of Justice,

may be sent by the Attorney General to any State or district in the United States to attend to the interests

of the United States in a suit pending in a court of the United States, or in a court of a State, or to attend to

any other interest of the United States.”

2

This Statement of Interest addresses only Defendants’ liability under the ADA and Section 504,

and does not comprehensively discuss potential remedies. Should the Court determine that Defendants

are liable on all or some of Plaintiffs’ claims, the United States would offer its assistance to the Court and

the parties in fashioning and implementing the appropriate remedies. For example, as discussed herein,

the Disability Rights Section of the Department of Justice (“DRS”) possesses considerable technical

competence in the areas of emergency preparedness and management as they relate to the needs of

individuals with disabilities. See infra at 10-11.

3

All “Trial Ex.” citations refer to exhibits admitted during the trial of this matter.

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communication, and housing options, as well as reliance on the availability of specialized equipment, disability-related assistance, consumable medical supplies, durable medical equipment, and food, interfere with the ability of individuals with a variety of disabilities to equally respond to and recover from the City’s emergencies and disasters. Emergency plans that fail to incorporate the unique requirements of individuals with disabilities exclude those individuals from equal participation in emergency services. Furthermore, New York City contains a sizable community of individuals with disabilities; although precise numbers are difficult to obtain, according to the City, “it is estimated that there are 889,219 individuals with disabilities, making up 11% of the population. . . . 183,651 individuals have a serious hearing difficulty, 210,903 have serious vision difficulties, and 535,840 individuals have difficulty walking or climbing stairs. Within Zone A, which was subject to a mandatory evacuation order during Hurricane Sandy, there are at least 118,000 people with disabilities.” Trial Ex. 120 at P003738; see also, e.g., Trial Ex. 7 at CNY000361-CNY000362 (Social Vulnerability Statistics by evacuation zone); Trial Ex. 24 at CNY018522 (NYC Demographic Information); Testimony of Aaron Belisle, March 12, 2013, 286:1-3 (discussing the “rule of thumb” that twenty percent of the City’s population has some form of disability).
Unfortunately, despite the obvious importance of accounting for the unique needs of individuals with disabilities in planning for emergencies, New York City’s emergency plans, like many state and local emergency plans throughout the nation, fail to do so. The National Council on Disability (“NCD”), an independent federal agency charged with advising the President, Congress, and other agencies regarding policies, practices, and procedures that affect people with disabilities,4 reported in 2009 that:

4

See http://www.ncd.gov/about. NCD’s functions are authorized by Title IV of the Rehabilitation

Act of 1973, 29 U.S.C. § 780, et seq.

2

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The challenges faced by persons with disab ilities (physical, sensory, cognitiv e, psychiatric, etc.) . . . in all disaster-thr eat situations have been m ade even m ore clear through events such as Septembe r 11, Hurricane Katrina, and the latest wildfires in Southern California. Problems with warning transm ission and receipt, transportation, evacuation, shelte r, and long-term recovery have been documented through both res earch studies and governm ent investigations . . . . Lack of planning and lack of inclusion of persons with disabilities . . . remains a problem across the nation. Trial Ex. 65 (“Effective Emergency Management: Making Improvements for Communities and People with Disabilities”) at CNY020238. NCD stressed that “[p]lanning is possibly the most important, albeit the most difficult, stage in the emergency management process. . . . Emergency planners must plan ahead to effectively provide services and communicate with people with disabilities before, during, and after an emergency.” Id. at CNY020273, CNY020277. Accounting for the needs of individuals with disabilities in emergency planning is also mandated by the ADA. Specifically, the City’s emergency planning is a public service and activity subject to Subtitle A of Title II of the ADA, as well the implementing regulations issued by the United States Department of Justice (the “DOJ Regulations”). See 42 U.S.C. §§ 1213112134; 28 C.F.R. §§ 35.101-35.190. Subtitle A of Title II 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 term “public entity” includes local governments. See 42 U.S.C. § 12131(1)(A). Pursuant to Title II and its implementing regulations, “[a] public entity shall operate each service, program, or activity so that the service, program, or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities.” 28 C.F.R. § 35.150(a). Plaintiffs presented significant evidence at trial in support of their claim that the City’s emergency plans, in many areas, exclude individuals with disabilities from benefitting equally from the City’s services, and fail to comply with the
3

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Title II implementing regulations. The Attorney General has authority to enforce Title II of the ADA, and pursuant to Congressional mandate, the Department of Justice has the authority to issue the DOJ Regulations. 42 U.S.C § 12134. The United States, therefore, has a strong interest in this matter.
Despite the ADA’s mandate, the City’s emergency plans fail to account for and include the needs of individuals with disabilities relating to, at a minimum, shelters, transportation and evacuation, and emergency-related communications. Defendants offer no argument or evidence that reasonably modifying the City’s policies, practices, or procedures in order to avoid discrimination on the basis of disability would fundamentally alter the nature of its emergency planning services. See 28 C.F.R. § 35.130(b)(7). Rather, the City insists that ad hoc solutions to the gaps in their plans are adequate. However, general assurances to individuals with disabilities of an ad hoc response during the exigencies of an emergency are not equal to the access and services afforded to individuals without disabilities, for whom planning and preparations have already occurred. The City must explicitly recognize and address the unique needs of individuals with disabilities in its emergency plans in order to ensure that their safety and wellbeing are safeguarded to the same extent as the rest of the City’s residents.
STATUTORY AND REGULATORY BACKGROUND Two decades ago, Congress determined that there was a “compelling need” to remedy widespread discrimination against individuals with disabilities through a “clear and comprehensive national mandate.” H.R. Rep. No. 101-485 (II), at 50 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 332. In 1990, Congress enacted the ADA to implement that broad mandate. See 42 U.S.C. § 12101(b). The ADA has a “sweeping purpose,” and “forbids discrimination against disabled individuals in major areas of public life.” PGA Tour, Inc. v. Martin, 532 U.S.
4

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661, 675 (2001). As a remedial statute, moreover, the ADA “should be construed broadly to effectuate its purposes.” Tcherepnin v. Knight, 389 U.S. 332, 336 (1967); see also Henrietta D. v. Bloomberg, 331 F.3d 261, 279 (2d Cir. 2003). Indeed, the ADA’s “comprehensive character” is one of its “most impressive strengths.” See PGA Tour, 532 U.S. at 675 (quoting the Hearings on S. 933 before the Senate Committee on Labor and Human Resources and the Subcommittee on the Handicapped, 101st Cong., 1st Sess., 197 (1989) (statement of the Attorney General)).
A. Title II of the ADA Title II of the ADA has been interpreted to reach “all actions by public entities.”
Innovative Health Sys., Inc. v. City of White Plains, 931 F. Supp. 222, 232 (S.D.N.Y. 1996), aff'd in part, 117 F.3d 37 (2d Cir. 1997), superseded by rule change on other grounds as noted in Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 171 n.7 (2d Cir. 2001). Subtitle A of Title II provides that:
[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 be subjected to discr imination by any such entity. 42 U.S.C. § 12132. The term “public entity” means “any State or local government,” and “any department, agency, special purpose district, or other instrumentality of a State or States or local government.” 42 U.S.C. § 12131.5 Responsibility for implementing regulations necessary for carrying out Subtitle A is vested in the Department of Justice. 42 U.S.C. § 12134.6

5

The United States is not aware of any claim in this case that Plaintiffs are not “qualified

individuals,” that Defendants are not “public entities,” or that Defendants’ emergency plans are not

“services, programs, or activities” within the meaning of Subtitle A of Title II and its implementing

regulations.

6

Title II extended the protections of Section 504, which prohibits discrimination under, exclusion

from participation in, and the denial of benefits of “any program or activity receiving Federal financial

assistance,” 29 U.S.C. § 794(a), to all state and local government programs, services, and activities. The

provisions of Title II can provide no lesser protection than that afforded by Section 504, but the Title II

5

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Courts interpreting the non-discrimination mandate of Title II have explained in more detail what public entities must do to comply with the statute. At a minimum, a public entity must ensure that individuals with disabilities are afforded “meaningful access” to that entity’s publicly offered services, benefits, and activities. See, e.g., Alexander v. Choate, 469 U.S. 287, 301 (1985).7 A public entity will frequently have to make modifications to its policies, practices, and procedures in order to avoid discriminating against individuals with disabilities, and to truly afford them “meaningful access.” Id.; see also Tennessee v. Lane, 541 U.S. 509, 531 (2004) (“failure to accommodate persons with disabilities will often have the same practical effect as outright exclusion”); 28 C.F.R. § 35.130(b)(7).
In the only Title II case of which the United States is aware that squarely examines a public entity’s emergency management planning, a district court in the Central District of California concluded in February 2011 that the emergency preparedness program of the City of Los Angeles was a governmental program under Title II, the City’s plans failed to comply with Title II and the DOJ Regulations in numerous respects, and “individuals with disabilities lack meaningful access to the City’s emergency preparedness program due to the City’s failure to address or provide for their unique needs.” Communities Actively Living Independent and Free v. City of Los Angeles, No. CV 09-0287 CBM (RZx), 2011 WL 4595993, at *13 (C.D. Cal. Feb.

implementing regulations do not prevent Title II from providing greater protection to persons with disabilities than Section 504. See 28 C.F.R. § 35.103(a). Apart from these distinctions, and in all ways relevant to this discussion, the ADA and Section 504 are generally construed to impose the same or similar requirements. See, e.g., Henrietta D., 331 F.3d at 272; K.M. ex rel. D.G. v. Hyde Park Cent. Sch. Dist., 381 F. Supp. 2d 343, 357 (S.D.N.Y. 2005). Therefore, this Statement of Interest will not separately discuss the City’s compliance or lack thereof with Section 504, but will solely address Title II and its implementing regulations.

7

This “meaningful access” standard was formulated under Section 504 before Title II was enacted,

and several years before the promulgation of the DOJ Regulations.

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10, 2011) (“CALIF Case”).8 The CALIF Court found, among other things, that: (1) the City’s emergency preparedness program did not include provisions to notify, evacuate, transport, or temporarily house individuals with disabilities during or immediately following an emergency (id.); (2) no individual City departments had plans to address the needs of individuals with disabilities in emergencies (id.); (3) the City had not assessed its capacity to respond to the needs of individuals with disabilities in an emergency (id.); (4) the City did not know which of its shelters were accessible to individuals with disabilities, and those individuals had no way to know which shelters were accessible (id. at 14, 16); (5) the City’s reliance on ad hoc reasonable accommodations was “both legally inadequate and practically unrealistic” (id. at 14); (6) the City’s references to the importance of personal planning and preparedness were irrelevant to the question of whether the City afforded meaningful access to individuals with disabilities to its own emergency plans and services (id. at 15); (7) the denial of meaningful access to the City’s emergency preparedness program was by reason of Plaintiffs’ disabilities (id.); and (8) the City presented no evidence that any reasonable modification would fundamentally alter the nature of its emergency preparedness program or create an undue burden (id. at 16). Among the CALIF Court’s most important legal insights was its conclusion that “[b]ecause individuals with disabilities require special needs, the City disproportionately burdens them through its facially neutral practice of administering its program in a manner that fails to address such needs.” Id. at 14.
B. DOJ Regulations The DOJ Regulations implementing Title II are codified at 28 C.F.R. Part 35. For the
convenience of the Court, all of the DOJ Regulations are attached hereto at Appendix A.

8

The Statement of Interest filed by the United States in the CALIF case can be accessed at

http://www.ada.gov/briefs/calif_interest_br.pdf.

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As interpretations of the meaning and scope of Title II, the DOJ Regulations are entitled to “controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.” Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984); see also Civic Ass’n of Deaf of New York City, Inc. v. Giuliani, 915 F. Supp. 622, 635 (S.D.N.Y. 1996) (opining that the regulations implementing Title II “must be given legislative and hence controlling weight unless they are arbitrary, capricious, or clearly contrary to the statute,” and ultimately concluding that a municipal plan to remove alarm boxes from city streets violated the ADA and Section 504) (citation and internal quotation marks omitted). In Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999), the Supreme Court, in upholding a challenge by individuals with disabilities to their confinement in segregated environments, credited DOJ’s interpretation of Title II as implemented through the Part 35 regulations requiring services to individuals with disabilities to be provided in an integrated setting. See id. at 596-98; see also 28 C.F.R. § 35.130(d). The Court wrote that because DOJ “is the agency directed by Congress to issue regulations implementing Title II . . . its views warrant respect. . . . [I]t is enough to observe that the well-reasoned views of the agencies implementing a statute constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.” Id. at 597-98 (citations and internal quotation marks omitted). Here, the Court should accord the DOJ Regulations “legislative and controlling weight,” and may conclude that a violation of Title II has occurred wherever the City’s emergency plans do not comport with one of those regulations.
The DOJ Regulations are generally divided among several categories, three of which are most relevant here: (1) general prohibitions against discrimination (Subpart B); (2) prohibitions against inaccessible facilities and programs (Subpart D); and (3) prohibitions against inaccessible communications (Subpart E).
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With respect to the general prohibitions, the regulations mirror the statutory mandate against discrimination set forth in 42 U.S.C. § 12132. See 28 C.F.R. § 35.130(a). Furthermore, a public entity may not provide an individual with a disability an opportunity to participate in or benefit from a service that is not equal to that afforded to others, or provide a service that is not as effective in affording equal opportunity to obtain the same result as that provided to others. 28 C.F.R. § 35.130(b)(1)(i)-(iii). The regulations also require a public entity to make reasonable modifications to policies, practices, or procedures when necessary to avoid discrimination on the basis of disability, unless the public entity can prove such modifications would fundamentally alter the nature of the service. 28 C.F.R. § 35.130(b)(7).
Regarding specific facilities and programs operated by public entities, the regulations prohibit excluding individuals with disabilities from the benefits of a public entity’s services because facilities are inaccessible. 28 C.F.R. § 35.149. A public entity is required to operate services, when viewed in their entirety, that are readily accessible to and usable by individuals with disabilities. 28 C.F.R. § 35.150(a). Significantly, when choosing the site or location of a facility, a public entity cannot make a selection that would exclude individuals with disabilities from a service, or substantially impair the service with respect to individuals with disabilities, 28 C.F.R. § 35.130(b)(4)(i)-(ii), and each facility or part of a facility constructed for the use of a public entity must be designed and constructed such that the facility or part of the facility is readily accessible to and usable by individuals (or, if altered, the facility must be accessible to the maximum extent feasible). 28 C.F.R. § 35.151 (a)(1), (b)(1).
Finally, the regulations require public entities’ communications with individuals with disabilities to be as effective as the entities’ communications with others. 28 C.F.R. § 35.160(a)(1)). This requirement includes providing auxiliary aids and services, accessible
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emergency telephone services, and appropriate signage, and ensuring that interested persons can obtain information as to the existence and location of accessible services. 28 C.F.R. §§ 35.16035.163.
C. Federal Guidance Regarding the Implementation of Title II and the Importance of Advance Planning DOJ is also specifically authorized to issue technical assistance and policy guidance
under Title II, to ensure consistent interpretation of the statute and to aid public entities in complying with its requirements. See 42 U.S.C. § 12206(a)(1), (c)(1), (c)(2)(B)(i), (c)(3) (among other things, directing DOJ to assist entities covered under the ADA in “understanding the responsibility of such entities . . . under this chapter,” and to provide technical assistance manuals to those entities); see also 28 C.F.R. § 35.190(a). Pursuant to this directive, DOJ developed an ADA Title II Tool Kit “designed to teach state and local government officials how to identify and fix problems that prevent people with disabilities from gaining equal access to state and local government programs, services, and activities.” See “ADA Best Practices Tool Kit for State and Local Governments” (“DOJ Tool Kit”), available at http://www.ada.gov/pcatoolkit/toolkitmain.htm. Chapter 7 of the DOJ Tool Kit, “Emergency Management Under Title II of the ADA,” is particularly germane to the issues in this case and addresses all of the major components of emergency management. See Declaration of Rebecca S. Tinio, dated May 10, 2013 (“Tinio Dec.”), Ex. A. Addendum 1 to Chapter 7 consists of a checklist for use by public entities “as a preliminary assessment of [their] emergency management programs, policies, procedures, and shelter facilities . . . to see if there are any potential ADA problems” (id., Ex. B); Addendum 2 provides detailed information regarding the provision of accessible shelters (id., Ex. C); and Addendum 3 consists of an accessibility
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checklist for emergency shelters (id., Ex. D).9 In advising emergency managers on how to implement the non-discrimination mandate
of the ADA, the DOJ Tool Kit emphasizes the importance of advance planning to account for the rights and needs of individuals with disabilities across the spectrum of emergency management areas, including preparation, testing, notification, community evacuation and transportation, emergency sheltering, temporary lodging and housing, social services, emergency medical care and services, relocation and transition, and remediation of damages. Id., Ex. A at 3, 8; id., Ex. B at 2-4; id., Ex. C at 1-2. As the Tool Kit advises, “[e]qual access requires advance planning. During emergencies and disasters, people with disabilities sometimes have different, disabilityrelated needs than other individuals. Many of these needs cannot be met during emergencies and disasters without advance planning.” Id., Ex. C at 1.
Indeed, the importance of advance planning in order to provide equal, effective access to individuals with disabilities to public entities’ emergency services is stressed in numerous federal publications relating to emergency management. For example, as already discussed, the 2009 NCD report titled “Effective Emergency Management: Making Improvements for Communities and People with Disabilities” devotes its first substantive section to preparedness and planning. See Trial Ex. 65 at CNY020268-CNY020301; see supra at 2-3. The Federal Emergency Management Agency (“FEMA”), in its November 2010 “Guidance on Planning for Integration

9

Chapter 7 has proved to be of significant practical use to emergency managers; for example, local

governments routinely enter into settlement agreements with the United States to resolve ADA

compliance reviews that commit the public entity to compliance with the principles and guidelines set

forth in Chapter 7. See http://www.ada.gov/civicac.htm (discussing Project Civic Access, a nationwide

effort to enforce Title II in municipalities, and providing links to settlement agreements); see also Tinio

Dec., Ex. E (ADA settlement agreement entered into on April 19, 2013 between the United States and the

City of Jacksonville, Florida, providing in paragraphs 29 and 30 that Chapter 7 of the DOJ Tool Kit is

“[t]he touchstone for compliance with ADA requirements relating to emergency management,” the City

of Jacksonville is “committed to compliance with the ADA requirements as outlined in Chapter 7,” and

the City will revise its emergency plan to be consistent with Title II “as outlined in Chapter 7”).

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of Functional Needs Support Services in General Population Shelters” (“2010 FEMA Guidance”), notes that “[c]hildren and adults with disabilities have the same right to services in general population shelters as other residents. Emergency managers and shelter planners have the responsibility of planning to ensure that sheltering services and facilities are accessible. . . . The importance of advanced planning in developing and implementing [functional needs support services] in general population shelters cannot be overstated.” Trial Ex. 153 at P001967, P001974. See also Tinio Dec., Ex. F (April 15, 2005 NCD report titled “Saving Lives: Including People with Disabilities in Emergency Planning”), at 21-22 (“People with disabilities are often left out of planning activities . . . People with disabilities should be able to use the same systems as other residents of the community in which they live. Although they may need additional services, the emergency management system must work to build provisions for these services into its plans so that people with disabilities are not excluded from services available to the rest of the community.”).
Similarly, the National Preparedness Goal published by the Department of Homeland Security, pursuant to a Presidential Policy Directive, defines the national policy of the United States relating to emergency management: “[W]e seek to enable the whole community to contribute to and benefit from national preparedness. This includes . . . individuals with disabilities . . . . Their needs and contributions must be integrated into our efforts.” See “National Preparedness Goal,” available at http://www.fema.gov/library/viewRecord.do?fromSearch=fromsearch&id=5689, at 1. To effectuate this National Preparedness Goal, FEMA recently issued an updated National Response Framework, which provides substantial guidance regarding the inclusion of individuals with disabilities and their unique needs throughout emergency planning and preparedness processes.
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See “National Response Framework,” available at http://www.fema.gov/library/viewRecord.do?id=7371, at 4-6, 8, 9, 12, 13, 19-22, 24, 27, 46 (“Emergency management staff in all jurisdictions have a fundamental responsibility to consider the needs of all members of the whole community, including . . . individuals with disabilities . . . [t]he local emergency manager’s duties often include . . . [c]oordinating integration of the rights of individuals with disabilities . . . into emergency planning and response.”).
In short, the federal agencies involved in enforcing Title II, implementing its directives through regulations, helping emergency managers comply with its requirements, and framing national emergency management policies uniformly recognize the critical importance of advance planning for the unique needs of individuals with disabilities in emergencies, to make sure that those individuals can participate in and benefit equally from a public entity’s emergency services.
ARGUMENT NEW YORK CITY’S EMERGENCY MANAGEMENT PLANS DO NOT ADEQUATELY PROTECT THE RIGHTS OF INDIVIDUALS WITH DISABILITIES UNDER TITLE II AND ITS IMPLEMENTING REGULATIONS Plaintiffs have shown by a preponderance of the evidence that the City’s current emergency preparedness plans do not comply with Title II of the ADA and its implementing regulations at least with regard to: (1) the provision of accessible evacuation centers and general population shelters; (2) the transportation and evacuation of individuals with disabilities before and during an emergency; and (3) communications with individuals with disabilities before, during, and after an emergency. The Court should therefore find that Defendants have violated Title II of the ADA and its implementing regulations as to at least those aspects of its emergency
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preparedness plans.10 A. Accessibility of Evacuation Centers and General Population Shelters The evidence at trial revealed that the City has failed to afford an equal opportunity to
individuals with disabilities to benefit from the City’s sheltering plans and systems, as required by the ADA and its implementing regulations. Indeed, a post-Hurricane Sandy briefing paper of the City’s Human Services & Governmental Affairs Divisions to the New York City Council, dated February 5, 2013, and addressing shelter management, reported that “[d]espite the large number of people with disabilities living in Zone A, many of the City’s evacuation shelters were not accessible. Advocates reported inaccessible entrances at shelters . . . a lack of accessible bathrooms and cots . . . [and] a lack of accessible communication within the shelters due to a failure to provide ASL interpreters or large-print or Braille written materials.” Trial Ex. 120 at P003738-P003739.
The City’s sheltering plans and systems are deficient because they do not commit the City to (or safeguard) a level of accessibility that satisfies the ADA and the DOJ Regulations, the latter of which detail the requirements under Title II for program accessibility. As noted above, public entities cannot, among other things, defeat or impair a public service with respect to individuals with disabilities by selecting inaccessible sites or locations. 28 C.F.R. §§ 35.130(b)(4)(i)-(ii). Two different regulations address the specific accessibility requirements for existing facilities, on the one hand, and new construction and alterations, on the other; both regulations incorporate the “readily accessible to and usable by individuals with disabilities” standard. 28 C.F.R. §§ 35.150, 35.151. The regulation regarding existing facilities also

10

This Statement of Interest does not discuss other areas of emergency preparedness addressed

during trial of this matter and in the parties’ pre-trial memoranda, including, for example, high-rise

evacuations and post-emergency temporary housing. The United States does not intend to suggest, by its

silence, agreement or disagreement with any party on these issues.

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mandates that a public facility has the burden to prove that complying with the requirements for program accessibility would result in a fundamental alteration in the nature of a service or undue financial and administrative burdens. 28 C.F.R. § 35.150(a)(3).
Contrary to the requirements of the DOJ Regulations, the City’s main sheltering plan (Trial Ex. 7, Coastal Storm: Sheltering Plan), which describes the “solar system” shelter structure that the City uses (id. at CNY000357), nowhere sets forth rules or guidelines to ensure that accessible shelter sites are selected, or that shelter sites are modified so as to be accessible to individuals with disabilities. Other sheltering plans, such as the Coastal Storm Plan Evacuation Center Field Guide (Trial Ex. 15) and the Coastal Storm Plan Hurricane Shelter Field Guide (Trial Ex. 16), also do not confirm that ADA accessibility rules will be satisfied in shelters.
The testimony of Aaron Belisle, Office of Emergency Management (“OEM”) Special Needs Outreach Coordinator, provides evidence that the City has not, in fact, been committed to providing an ADA-compliant accessible shelter system. Rather, the City refers to its own undefined concept of “usability.” See, e.g., Belisle Testimony at 363:8-11 (stating that the City trains staffers to check that shelters have a “usable” entrance for people with disabilities); 330:611 (testifying that the City confirmed before Hurricane Sandy that all shelters had a “wheelchair usable entrance” and accessible bathrooms); 333:18-22 (admitting that the City does not actually know what percentage of shelters have accessible bathrooms). The City’s witnesses admitted, however, that “usable” does not mean “accessible” and is not a substitute for compliance with ADA standards; indeed, the City’s expert agrees that full accessibility is the ADA standard. See Testimony of Victor Calise, March 13, 2013, 439:3-15; Testimony of Elizabeth Davis, March 19, 2013, 912:25-913:14 (the concept of “usability” indicates non-compliance with the ADA Standards for Accessible Design); id. at 915:22-916:5 (the ADA Standards for Accessible
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Design represent the goal, in the field or in other jurisdictions, that should be met); id. at 930:5-8 (“It’s my opinion that the goal in identifying shelters should be that they are accessible.”).11
Because the City has not committed or planned to provide accessible shelters, there was ample evidence introduced at trial that: (1) many of the City’s evacuation centers and shelters are not accessible, and (2) the City cannot even identify how many of these centers and shelters are accessible, and therefore cannot accurately analyze the accessibility of its shelter system as a whole. See, e.g., Belisle Testimony at 359:21-22 (“Not all of our shelters are accessible.”); id. at 359:23-360:9 (inability to identify how many evacuation centers are accessible); Davis Testimony at 916:6-10 (not all evacuation centers appear to be accessible); Trial Ex. 146 (showing that dozens of the public schools used as Hurricane Irene shelters were inaccessible); Trial Ex. 534 (Declaration of Margi Trapani), ¶¶ 40-41, 52-54, 58, 61-62; Trial Ex. 540 (Declaration of Susan Dooha), ¶¶ 57-58, 81-85. Because the City cannot assess the level of accessibility across its shelter system (or, in many cases, even the level of accessibility within a single shelter), it cannot comply and has not complied with its obligation under the ADA to “operate each service . . . so that the service . . . when viewed in its entirety, is readily accessible to and usable by individuals with disabilities.” 28 C.F.R. § 35.150(a).
During his testimony, Mr. Belisle referred to a one-page Facility Accessibility Checklist (Trial Ex. 472) that he stated was used in training and provided to shelter staff, outlining minimal steps to improve accessibility in shelters. See Belisle Testimony, 391:8-392:6. Mr. Belisle’s testimony made clear, however, that the Facility Accessibility Checklist is insufficient to assure that a shelter will be accessible. Id. For example, the Checklist does not define accessible entrances or bathrooms. Id. Appropriate accessibility guidelines and checklists are set forth in

11

The ADA Standards for Accessible Design are issued by DOJ and codified at Appendix A to 28

C.F.R. Part 36. See http://www.ada.gov/adastd94.pdf.

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Chapter 7 of the DOJ Tool Kit and the addenda thereto, and in the 2010 FEMA Guidance. See Tinio Dec., Exs. A-D; Trial Ex. 153. In order to comply with the ADA and the DOJ Regulations, the City’s plans should incorporate the guidelines contained in these sources.
Finally, Mr. Belisle testified about a City initiative to survey its shelters to assess their accessibility. While this survey is undoubtedly a positive step, it does not erase the City’s liability under the ADA and DOJ Regulations for failing to plan for and provide an accessible shelter system.12 The City’s failures in this regard implicate not only 28 C.F.R. § 35.150(a), cited above, but also, at a minimum, 28 C.F.R. § 35.149, 28 C.F.R. § 35.130(b)(4)(i)-(ii), and 28 C.F.R. § 35.151(a)(1), (b)(1).
B. Transportation and Evacuation The City’s emergency plans also fail to make sure that individuals with disabilities have
equally effective access to emergency services, because the plans do not adequately account for the specialized transportation and evacuation needs of the disabled. When the City issues a mandatory evacuation order, individuals with disabilities are disproportionately burdened if they are not afforded transportation and evacuation services and options that are equally effective as those provided to the general public. See 28 C.F.R. § 35.130(b)(1)(i)-(iv). Plaintiffs elicited significant evidence at trial that, in fact, individuals with disabilities were not provided with equally effective transportation and evacuation options after the mandatory Hurricane Sandy evacuation order, and that the City’s plans do not provide any assurance that the same problems will not reoccur in future crises.

12

In addition, the United States does not concede that the survey itself, or the methods used to

administer it, are adequate under the ADA and the DOJ Regulations. See Trial Ex. 483. For example,

Mr. Belisle acknowledged problems with the methodology used to assess bathroom accessibility. Belisle

Testimony at 390:19-391:5. In the United States’ view, the materials included in Chapter 7 of the DOJ

Tool Kit comprise the most reliable methods of assessing shelter accessibility and compliance with Title

II and the DOJ Regulations. See Tinio Dec., Exs. A-D.

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The City’s plans reflect its heavy reliance on public transportation systems – much of which are inaccessible to individuals with disabilities – to evacuate the majority of residents. See, e.g., Trial Ex. 6 (Coastal Storm - Evacuation Plan) at CNY000107 (“The City will encourage evacuees to use public transportation to travel to Evacuation Centers.”); id. at CNY000130 (“[A] successful evacuation will depend on the efficient use of mass transportation assets . . . [under a worst case scenario evacuation order,] about 1.83 million are expected to use public transportation.”); Trial Ex. 245A (Area Evacuation Plan) at 25 (“The New York metropolitan area’s public transportation network . . . will be a key component of many evacuation operations.”); Trial Ex. 4A (“Ready New York: Hurricanes and New York City”) (“If asked to evacuate, do so as directed. Use public transportation if possible.”). The City does not dispute that only a very small portion of the New York City subway system is accessible. See Trial Ex. 157 (MTA Subway Accessibility Information). In addition, only two seats on each City bus – assuming that a disabled individual is able to ambulate to a bus stop and receive assistance boarding the bus – are wheelchair accessible. See Testimony of June Kailes, March 11, 2013, at 187:8-11; see also Trial Ex. 547 (Declaration of Kenneth Martinez), ¶¶ 34-35 (before Hurricane Sandy, evacuation buses were too full to accommodate him and his wheelchair). Moreover, only a tiny fraction of taxicabs in New York are accessible; those taxis pick up passengers only in Manhattan; and individuals with disabilities may not uniformly be able to afford the cost of taxis. See, e.g., Belisle Testimony at 315:16-18; Calise Testimony at 455:20-456:19; Trial Ex. 538 (Declaration of Mary Conner), ¶ 17.
To fill these gaps, the Metropolitan Transit Authority (“MTA”) provides paratransit, also known as Access-A-Ride, services, via which an individual calls the service in advance to arrange a pick-up and drop-off. Unlike other forms of public transportation available to
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individuals without disabilities, Access-A-Ride typically requires a reservation at least 24 hours ahead of time. See, e.g., Testimony of Mary Conner, March 13, 2013, at 425:3-23; Trial Ex. 397 (October 26, 2012 Situation Report) at CNY00022779 (as Hurricane Sandy approached, reporting that MTA paratransit was “[s]etting up schedules from two-day to one-day booking for clients”).
The deficiencies of Access-A-Ride as a means of evacuating individuals with disabilities became apparent during Hurricane Sandy. Before Hurricane Sandy made landfall in New York City, Mayor Bloomberg issued a mandatory Zone A evacuation order effective as of 11:30 a.m. on Sunday, October 28. See, e.g., Trial Ex. 68; Trial Ex. 76 at CNY00023346. The MTA began to shut down subway service at 7 p.m. on October 28, and bus service as of 9 p.m. See Trial Ex. 76 at CNY00023346; Trial Ex. 354 at CNY00021257. However, Access-A-Ride service began to be curtailed almost immediately after the evacuation order. See Trial Ex. 354 at CNY00021257 (indicating that “[o]utbound Access-A-Ride trips are being scheduled only until 12 p.m. today, and return trips will continue until 5 p.m. Any previously scheduled trips after that time, including subscription trips, are canceled.”); see also Trial Ex. 160 at P003382. By this shutdown of Access-A-Ride services, even individuals with disabilities who had planned ahead to be evacuated on October 28, well in advance of the landfall of Hurricane Sandy, could have been left effectively stranded. It is clear from the record, therefore, that in the crucial hours between the evacuation order and the shutdown of all public transit, individuals with disabilities were provided less effective transportation and evacuation options and were therefore disproportionately and unfairly burdened.13

13

The City’s Governmental Affairs & Human Services Divisions identified this very problem in

their post-Sandy Briefing Paper to the City Council on Disaster Management, noting that “[t]he timing [of

the] evacuation order made evacuation difficult for all New Yorkers, especially those with special needs.”

See Trial Ex. 115 at P003667.

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Furthermore, nothing in the City’s plans prevented this unequal treatment from occurring, or would prevent it from occurring in the future. There appear to be no provisions in the City’s evacuation plans mandating a minimum amount of time between the issuance of an evacuation order and the shutdown of transportation services (and thereby reasonably accounting for the advance planning needs of individuals with disabilities), or requiring that paratransit services be provided to the same extent and during the same hours as transit options for the general population. The Coastal Storm Evacuation Plan does not address paratransit or the needs of individuals with disabilities whatsoever, except to refer to the limited Homebound Evacuation Operation (“HEO,” see infra n. 14). See Trial Ex. 6 at CNY000130-CNY000138. The Area Evacuation Plan makes only vague references to possible means of addressing the evacuation needs of individuals with disabilities, and also leans heavily on the HEO, which it outlines only in the barest detail. See Trial Ex. 245A at 28 (e.g., “MTA may reroute paratransit vehicles to support special needs evacuations”), 36 (discussing the HEO). The evidence at trial showed plainly that the City’s emergency plans do not ensure that individuals with disabilities are afforded transportation and evacuation services that are equal to those available to individuals without disabilities.14

14

To the extent the City relies on the HEO to argue that its emergency evacuation plans comply

with the ADA, that argument fails. For a number of reasons, the HEO does not remedy the City’s

deficiencies in providing equally effective access to individuals with disabilities to municipal

transportation and evacuation services. As an initial matter, the City does not inform the public about the

HEO. See Belisle Testimony at 293:13-18. Rather, the City relies on individuals to call 311 on their own

initiative to request assistance, and the City instructs its residents that they should do so only if absolutely

necessary in an emergency. See, e.g., Trial Ex. 3 at CNY001091 (“Call 911 if you are stranded and need

emergency assistance to evacuate your home.”) (emphasis added). The City does not publicize that, in

fact, the HEO should be available before danger arises. See Trial Ex. 8 at CNY018285 (indicating that

the HEO should commence at the same time evacuation centers open and an evacuation order is issued);

Trial Ex. 76 at CNY00023346 (internal Situation Report indicating that during the build-up to Hurricane

Sandy, the HEO was activated at 9 a.m. on October 28, at the same time that shelters opened). The City’s

failure to educate the public about the availability and features of the HEO creates a risk that individuals

with disabilities will wait until they are seriously endangered before calling for evacuation.

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C. Communications Finally, the City does not comply fully with Title II and the DOJ Regulations in that its
emergency plans do not provide for effective communications with individuals with disabilities. See 28 C.F.R. § 35.160(a)(1).
1. Failure to comply with DOJ Regulations regarding accessible communications in and relating to shelters
Evidence in the record indicates serious deficiencies in the City’s provision of accessible communications and appropriate auxiliary aids and services at shelters. See 28 C.F.R. § 35.160(a)(1); 28 C.F.R. § 35.160(b)(1)-(2). Mr. Belisle admitted that the City’s emergency plans do not provide for any sign language interpreters at shelters, for example. Belisle Testimony, 338:17-21. Indeed, the City seems to expressly disclaim any responsibility for providing auxiliary aids and services at shelters, instead instructing, for example, deaf or hard of hearing individuals to “practice communicating your needs through gestures, flashcards, or other means.” Trial Ex. 1 at CNY000039; see also Trial Ex. 3 at CNY001089-90.
The City is also obligated to “ensure that interested persons . . . can obtain information as to the existence and location of accessible services, activities, and facilities.” 28 C.F.R. § 35.163(a). The evidence at trial showed that because the City’s plans and public informational materials do not confirm that interested persons can obtain clear, complete information about
Furthermore, the HEO’s reliance on calls to 311 – the City’s general informational line – during an emergency, when incredibly high call volumes must be expected, also undermines the proposition that the HEO is an equally effective evacuation option for individuals with disabilities. See, e.g., Trial Ex. 115 at P003666 (reporting that during Hurricane Sandy, “the 3-1-1 system experienced a very high volume of calls before, during and after the hurricane that resulted in call takers being overwhelmed and unable to respond to the calls”); id. at P003669 (“many people reportedly received busy signals, recordings, or very long wait times.”). Thus, as it currently exists, the HEO does not remedy the City’s deficiencies in providing equally effective access to individuals with disabilities to emergency transportation and evacuation services. Indeed, the City’s expert testified that the HEO “has gotten good bones, but the City should probably figure out how to beef it up.” Davis Testimony at 897:1-19.
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accessible evacuation centers and shelters, the City has failed to comply with this regulation. Indeed, Mr. Belisle confirmed in his testimony that the City only informs the public about the locations of evacuation centers, not shelters. See, e.g., Belisle Testimony at 322:17-20; see also Trial Ex. 4(A) (Ready New York: Hurricanes and New York City, with map of evacuation center locations). The City’s rationale is that while all of the City’s evacuation centers will be open in, for example, a coastal storm emergency, the other shelters will open only as needed, and a disabled individual with accessibility needs could be directed to an appropriate shelter. See, e.g., Belisle Testimony at 373:8-23. There are flaws in the City’s informational plan, however, that create serious concerns under 28 C.F.R. § 35.163(a).
First, as discussed above, the City admits that not all of its evacuation centers are accessible, and it cannot reliably identify all of the centers that are accessible. See supra at 16. Therefore, simply informing the public about evacuation center locations does not satisfy the City’s obligation to inform interested persons as to the existence and location of accessible services and facilities. Compounding the problem, the City’s witnesses admitted that during Hurricane Sandy, the public was incorrectly told that all evacuation centers were accessible. See, e.g., Belisle Testimony at 360:10-15.
Second, much of the City’s public messaging does not, in fact, clearly direct individuals to seek out evacuation centers (which, in theory, would all be accessible). For example, Trial Exhibit 1 (Ready New York: For Seniors and People with Disabilities) advises readers to, in case of an evacuation, “[g]et to the nearest safe place as soon as instructed.” Trial Ex. 1 at CNY000040. It continues, “[f]or evacuees who have no alternative shelter, disaster shelters may be set up . . . Shelters are subject to change depending on the emergency. To find an accessible shelter near you during an emergency, call 311.” Id. at CNY000041. Trial Exhibit 2, Ready
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Case 1:11-cv-06690-JMF Document 151 Filed 05/10/13 Page 28 of 31
New York: Preparing for Emergencies in New York City, gives similar advice (Trial Ex. 2 at CNY000008), as does Trial Exhibit 3, Ready New York: My Emergency Plan (Trial Ex. 3 at CNY001092). See also Trial Ex. 2 at CNY000007 (“Go to the nearest safe place or shelter.”); Trial Ex. 4A (“For those who have no other shelter, the City will open hurricane shelters throughout the five boroughs. City shelters include accessible facilities and accommodations for people with special needs.”). Thus, the City’s instructions to the public simultaneously advise individuals to seek out the nearest shelter in an emergency but fail to identify where individuals with disabilities will be able to receive accessible services. (And in the case of Trial Ex. 4A, the City incorrectly implies that all City shelters are accessible.) The direction to call 311 “during an emergency” to find the nearest accessible shelter does not satisfy 28 C.F.R. § 35.163(a), given the heightened importance to individuals with disabilities of advance planning, and the reality that during an emergency, communication and transportation options for these individuals in particular may be severely curtailed. See, e.g., Calise Testimony at 451:25-452:3 (acknowledging that individuals who use wheelchairs or have other disabilities need to plan and learn in advance where accessible shelters are located). Plaintiffs introduced significant evidence at trial that during Hurricanes Irene and Sandy, individuals with disabilities were not able to obtain reliable information about accessible shelters. See, e.g., Trial Ex. 533 (Declaration of Joyce Delarosa), ¶¶ 3, 31, 33, 35, 36; Trial Ex. 534 (Trapani Dec.), ¶ 37; Trial Ex. 545 (Declaration of Tania Morales), ¶¶ 14-22.
The City’s reluctance to inform the public about shelters that may not be open in a particular emergency does not relieve the City of its obligation to ensure, or prevent it as a factual matter from ensuring, that interested persons can learn where accessible shelters will be
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Case 1:11-cv-06690-JMF Document 151 Filed 05/10/13 Page 29 of 31

located.15 For example, Robert Van Pelt testified that generally, the City’s evacuation center sites do not change. See Testimony of Robert Van Pelt, March 18, 2013, at 836:14-837:9. If the City achieves its stated goal of making all evacuation centers accessible, it should, in its written guidances, explicitly state that they are accessible and direct individuals to those centers. Until the City reaches that goal, it should inform the public of which centers are accessible. In addition, the City could confirm that “first-choice” shelters (in the “solar system” structure) – in other words, any shelters that the City can reasonably anticipate will be open in most emergencies – are accessible and advertised to the public as such. By not providing consistent and clear information to interested persons about accessible shelters, the City runs afoul of Title II and the DOJ Regulations.16
2. Additional violations of DOJ Regulations regarding communications Additional trial evidence further indicates that there are no provisions in the City’s emergency plans requiring that, for example, televised warnings and alerts issued by the City contain audio and captioning components. See, e.g., Belisle Testimony at 295:18-22. The City’s emergency plans also do not expressly require that sign language interpreters or closed captioning will be provided at Mayor Bloomberg’s press conferences. Indeed, Mayor Bloomberg’s press conferences during Hurricane Irene were not translated into American Sign Language, see id. at 296:9-11, and his press conferences during Hurricane Sandy were not captioned. See Trial Ex. 548 (Declaration of Christina Curry), ¶ 22. Moreover, Plaintiffs elicited

15

The City did not argue or present evidence that informing the public about the locations of

accessible shelters would fundamentally alter the nature of any service or create any undue burden. See

28 C.F.R. § 35.164.

16

Aside from 28 C.F.R. § 35.163(a), it also seems clear from the trial record that the City does not

comply with 28 C.F.R. § 35.163(b), which requires the City to “provide signage at all inaccessible

entrances to each of its facilities, directing users to an accessible entrance or to a location at which they

can obtain information about accessible facilities.”

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Case 1:11-cv-06690-JMF Document 151 Filed 05/10/13 Page 30 of 31
evidence that surveys distributed by City workers during post-Sandy canvassing efforts, designed to assess the status and needs of City residents, were not provided in accessible formats. See Trial Ex. 477; Testimony of Ryan Murray, March 18, 2013, 693:12 to 695:12. Based on this evidence, the Court should conclude that the City has violated Title II and the DOJ Regulations that require effective communication with individuals with disabilities.
CONCLUSION It is notable that at no point during the trial of this matter did the City produce any evidence that reasonable modifications to its emergency management policies, practices, or procedures, to avoid discriminating against individuals with disabilities, would fundamentally alter its emergency services. See 28 C.F.R. § 35.130(b)(7). Nor did the City produce evidence that complying with the regulations regarding program accessibility or accessible communications would result in a fundamental alteration, or cause an undue burden. See 28 C.F.R. § 35.150(a)(3); 28 C.F.R. § 35.164. In the absence of any such defenses from the City, the sole question for the Court is whether the City’s emergency plans fail to provide a level of access to its emergency services to individuals with disabilities that is equal to the access provided to others. For the reasons discussed herein, the City has failed to comply with the mandates of Title II and the DOJ Regulations by not providing, in its emergency plans, equal access to its emergency facilities and services to individuals with disabilities. Accordingly, the Court should conclude that Defendants have violated Title II of the ADA and its implementing regulations, as well as Section 504.
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Dated: May 10, 2013 Attorney

PREET BHARARA United States Attorney for the Southern District of New York
for the United States
_/s/ Rebecca S. Tinio____________ By: REBECCA S. TINIO
Assistant United States Attorney 86 Chambers Street New York, New York 10007 Tel.: (212) 637-2774 Fax: (212) 637-2702

26

 
 UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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

BROOKLYN CENTER FOR INDEPENDENCE OF :

THE DISABLED, a nonprofit organization, CENTER :

FOR INDEPENDENCE OF THE DISABLED, NEW :

YORK, a nonprofit organization, GREGORY D. BELL, :

and TANIA MORALES,

:

:

Plaintiffs,

:

:

-v-

:

:

MICHAEL R. BLOOMBERG, in his official capacity as :

Mayor of the City of New York, and THE CITY OF

:

NEW YORK,

:

:

Defendants.

:

:

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

11/07/2013
11 Civ. 6690 (JMF) OPINION AND ORDER

INTRODUCTION .......................................................................................................................... 2 FINDINGS OF FACT..................................................................................................................... 6
A. Emergency Planning for People with Disabilities .............................................................. 6 B. The City’s Emergency Planning Structure ......................................................................... 8 C. Involving People with Disabilities in Emergency Planning ............................................. 11 D. Evacuations ....................................................................................................................... 13
a. Building Evacuations ..................................................................................................... 15 b. Transportation ................................................................................................................ 18 c. The HEO ........................................................................................................................ 22 d. Evacuations During Hurricane Sandy............................................................................ 28 E. The Shelter System and Sheltering in Place ..................................................................... 34 a. The Architectural Accessibility of Shelters ................................................................... 36 b. The Programmatic Accessibility of Shelters.................................................................. 42 c. The Shelter Survey......................................................................................................... 50 d. Refuges of Last Resort................................................................................................... 52 e. Sheltering in Place ......................................................................................................... 52 F. Power Outages .................................................................................................................. 54 G. Recovery Operations......................................................................................................... 58 a. Resource Provision ........................................................................................................ 59 b. Debris Removal ............................................................................................................. 61 c. Interim Housing ............................................................................................................. 62 H. Education and Outreach .................................................................................................... 64

1

I. Communications ............................................................................................................... 66 a. Traditional Media........................................................................................................... 67 b. Websites ......................................................................................................................... 69 c. The 311 System.............................................................................................................. 69 d. The Special Needs Advance Warning System............................................................... 72 e. Notify NYC.................................................................................................................... 75 f. On-the-Ground Communication .................................................................................... 76 g. The Content of Communication..................................................................................... 77
CONCLUSIONS OF LAW .......................................................................................................... 81 A. Legal Standards................................................................................................................. 81 a. The ADA and Rehabilitation Act .................................................................................. 82 b. The NYCHRL................................................................................................................ 87 B. Discussion ......................................................................................................................... 89 a. Evacuations .................................................................................................................... 89 b. The Shelter System and Sheltering in Place .................................................................. 93 i) Architectural Accessibility ......................................................................................... 94 ii) Programmatic Accessibility...................................................................................... 100 iii) Sheltering in Place .................................................................................................... 104 c. Power Outages ............................................................................................................. 104 d. Recovery Operations.................................................................................................... 106 i) Resource Provision ................................................................................................... 106 ii) Debris Removal ........................................................................................................ 106 iii) Interim Housing ........................................................................................................ 107 e. Communications .......................................................................................................... 108 i) Outreach and Personal Emergency Planning............................................................ 108 ii) Communications During an Emergency................................................................... 110 f. Other Issues.................................................................................................................. 113 i) Inclusion of People with Disabilities in the Planning Process ................................. 113 ii) Fundamental Alteration and Undue Hardship Defenses .......................................... 113
CONCLUSION........................................................................................................................... 116
JESSE M. FURMAN, United States District Judge:
INTRODUCTION
The task of planning for, and responding to, emergencies and disasters is one of the most
important, and challenging, tasks any government faces. Emergencies can take many forms —
from power outages, to hurricanes, to terrorist attacks — and a government, particularly a local
2

government, must be prepared for them to strike at almost any moment. Such preparedness requires considerable planning, resources to execute those plans, and a willingness to learn from experience and revise plans that do not sufficiently accomplish their goals. Even then, each emergency is different and, to some extent, unpredictable, and no amount of planning or resources can fully prepare a local government to respond to what may come. Moreover, ultimately, there are limits to what the government can do on its own: Not only must a local government be prepared, but its residents must also prepare themselves.
In recent years, New York City (the “City”) has faced more than its fair share of emergencies and disasters, from the September 11th terrorist attacks in 2001; to Hurricane Irene in August 2011; to Hurricane Sandy, just over one year ago. Separate and apart from that tragic record, the task of planning for, and responding to, emergencies and disasters is especially challenging in New York City, given, among other things, the size and density of the City’s population, its island geography, and its large daily commuter and tourist populations. Given those challenges, and what New York City has had to face in recent years, the City’s planning and response have been remarkable in many ways. In particular, the array and detail of its plans for every imaginable kind of emergency is impressive; and the valor and sacrifice of those who have come to the aid of New Yorkers in times of emergency, from first responders to volunteers, have been nothing short of extraordinary. This lawsuit does not challenge those facts. Far from it: In many respects, this lawsuit has confirmed them.
Instead, the question in this lawsuit, certified as a class action pursuant to Federal Rule of Civil Procedure 23(b)(2) , is whether in planning for, and responding to, emergencies and disasters, the City has adequately addressed the needs of people with disabilities — a segment of the population for which emergency planning is even more challenging and, some argue, more
3

important. The Plaintiff class comprises all people with disabilities, as defined by the Americans with Disabilities Act (the “ADA”), 42 U.S.C. § 12102, who are within the City and the jurisdiction served by the City’s emergency preparedness programs and services. See Brooklyn Ctr. for Independence of the Disabled v. Bloomberg, 290 F.R.D. 409, 420-21 (S.D.N.Y. 2012) (Docket No. 66). (See also Docket No. 69 (noting the lack of objections to the Court’s proposed definition of the class and ordering the certification of that class)). These Plaintiffs contend that the City’s emergency preparedness program fails to accommodate their needs by, among other things, inadequately planning for the evacuation of people with disabilities, from multi-story buildings and generally; failing to provide a shelter system that is accessible within the meaning of the ADA; ignoring the unique needs of people with disabilities in the event of a power outage; failing to communicate adequately with people with special needs during an emergency; and failing to account for the needs of people with disabilities in recovery operations following a disaster. They seek declaratory and injunctive relief under the ADA, Title 42, United States Code, Section 12131, et seq.; Section 504 of the Rehabilitation Act of 1974, Title 29, United States Code, Section 794, et seq.; and the New York City Human Rights Law (“NYCHRL”), New York City Administrative Code, Section 8-101 et seq.
In March 2013, only months after Hurricane Sandy devastated the City, the Court held a six-day bench trial limited to the question of liability — that is, whether the City’s emergency preparedness program does, in fact, fail to sufficiently accommodate people with disabilities. At trial, the Court heard from at least thirty-five witnesses, including City officials involved in emergency planning at the City’s Office of Emergency Management (“OEM”), the New York City Fire Department (“FDNY”), and the New York City Police Department (“NYPD”); City officials involved in addressing the needs of people with disabilities, at the Mayor’s Office for
4

People with Disabilities (“MOPD”) and elsewhere; experts on emergency planning with respect to people with disabilities; and several people with disabilities who testified about their needs with respect to emergency planning as well as their experiences in recent emergencies, including Hurricane Sandy.1 In addition, the parties introduced approximately 25,000 pages of documentary exhibits, including over twenty plans developed by the City to address everything from providing shelter during an emergency to responding to a flash flood. Following trial, the parties and the United States Department of Justice, as an interested party, see 28 U.S.C. § 517, filed several hundreds of pages of briefing and proposed findings of fact and conclusions of law, a process that was completed in late May 2013.
This mountain of evidence and argument confirms that planning for, and responding to, emergencies and disasters is a Herculean task, and that, in many — perhaps most — respects, the City has done an outstanding job. But it also reveals that while the City’s emergency preparedness program adequately accommodates the needs of people with disabilities in some respects, it fails to do so in others. Most significantly, the City’s plans are inadequate to ensure that people with disabilities are able to evacuate before or during an emergency; they fail to provide sufficiently accessible shelters; and they do not sufficiently inform people with disabilities of the availability and location of accessible emergency services.
Notably, there is no evidence that these failures are a result of intentional discrimination by the City against people with disabilities. But the ADA, the Rehabilitation Act, and the NYCHRL seek to prevent not only intentional discrimination against people with disabilities, but also — indeed, primarily — discrimination that results from “benign neglect.” Alexander v.

1

Pursuant to this Court’s Individual Rules and Practices, the Court heard direct testimony

of all witnesses by affidavit. Had the Court heard direct testimony live, the trial would have

been considerably longer than six days.

5

Choate, 469 U.S. 287, 301 (1985). Moreover, these laws require that a government entity do more than provide a program on equal terms to those with and without disabilities; they require “affirmative accommodations to ensure that facially neutral rules do not in practice discriminate against individuals with disabilities.” Henrietta D. v. Bloomberg, 331 F.3d 261, 275 (2d Cir. 2003). The evidence shows that the City has not done so in various ways.
Based on the evidence and testimony presented at trial, the Court makes the following findings of fact and conclusions of law. The trial did not, and this Opinion does not, address the actions the City must take to remedy the deficiencies in its emergency preparedness program. Those actions will be addressed in the next phase of the case.
FINDINGS OF FACT A. Emergency Planning for People with Disabilities
1. According to New York City, of the more than eight million people living in the City, “it is estimated that there are 889,219 individuals with disabilities, making up 11% of the population. . . . [Of these,] 183,651 individuals have a serious hearing difficulty, 210,903 have serious vision difficulties, and 535,840 individuals have difficulty walking or climbing stairs.” (Ex. 120, at P003738; see also Ex. 7, at CNY000361-62 (providing social vulnerability statistics by evacuation zone based on 2000 census data); Ex. 24 at CNY018522 (providing statistics about the numbers of people with various disabilities living in New York City); Tr. 286:1-3 (Special Needs Coordinator Aaron Belisle discussing a “rule of thumb” that twenty percent of the City’s population has some form of disability)).2 The City estimates that, within just the area

2

Exhibit 120 is one of two briefing papers prepared by committees of the New York City

Council in advance of hearings on Hurricane Sandy that Plaintiffs offered at trial. (See also Ex.

115). Defendants objected to admission of these documents on the basis that they are hearsay.

(See Docket No. 128). Defendants later objected on the same basis to statements of New York

City Council members contained within a transcript of a City Council hearing (Ex. 116). (See

6

that was subject to the mandatory evacuation order during Hurricane Sandy, “there are at least 118,000 people with disabilities.” (Ex. 120 at P003738).
2. People with disabilities face unique challenges in responding to emergencies. (See, e.g., Ex. 65, at CNY020238). They may, for example, rely on the availability of elevators, accessible transportation, accessible communication, or electricity-powered medical devices, any or all of which may be compromised in an emergency.3 (See Blanck Decl. ¶ 28; see also Bell Decl. ¶ 18 (“As a result of my blindness and PTSD, I am unable to react as quickly and easily to new and dangerous situations without accommodations. Because of my [disabilities], I need to plan ahead to make sure that my needs would be met during travel and at a shelter . . . .”); Buckner Decl. ¶ 13 (“Being blind and unable to drive, if I cannot arrange transportation, I am stuck wherever I happen to be.”); Halbert Decl. ¶ 9 (“There are things that I cannot do as quickly or at all as compared to people without disabilities. For example, I cannot run out of a high-rise building in an emergency.”); Morales Decl. ¶ 10 (“If I am at home and the power goes out, I do not know how I could evacuate because I have to use a motorized lift to get up and down the stairs at my house.”)).
3. Thus, as the City itself concedes, it is particularly important to account for the needs of people with disabilities in emergency planning. (See Defs.’ Response to Statement of

Ex. 566, at 4). The parties have stipulated to the admissibility of certain portions of these City Council documents. (See Ex. 566, at 3-4). Because this Opinion relies only on those portions, the Court need not decide whether any other portions of the documents are admissible.

3

“Accessible” is a term of art in the context of addressing the needs of people with

disabilities. See, e.g., Report of Committee on Education and Labor, H.R. Rep. 101-485, pt. 2, at

117-18 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 400-01; Report of Committee on the

Judiciary, H.R. Rep. 101-485, pt. 3, at 60, reprinted in 1990 U.S.C.C.A.N. 445, 483. As

discussed in more detail below, regulations issued pursuant to the ADA by the United States

Department of Justice provide standards for determining whether a particular facility or service

is accessible to people with disabilities. See, e.g., 49 C.F.R. Part 36 (providing standards for

accessible design); id. Parts 37-38 (providing standards for accessible transportation).

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Interest of United States 6 n.1 (Docket No. 157); see also, e.g., Ex. 65, at CNY020275 (“Planners must compensate for their increased vulnerability by addressing, specifically, the needs of people with disabilities during the planning process.”); id. at CNY020277 (“Emergency planners must plan ahead to effectively provide services and communicate with people with disabilities before, during, and after an emergency.”); Ex. 153, at P001974 (“The importance of advance[ ] planning in developing and implementing [accommodations for people with disabilities] in general population shelters cannot be overstated. . . . [Accommodations for people with disabilities] cannot wait to be identified and put into place once an emergency or disaster occurs.”); see also McKinney Dep. 90:9-24 (OEM Deputy Commissioner for Planning testifying that it is important to plan for the needs of people with disabilities)). Indeed, the National Council on Disability, an independent federal agency charged with advising the President, Congress, and other agencies regarding policies, practices, and procedures that affect people with disabilities, has opined that the failure to address the specific vulnerabilities of people with disabilities in emergency planning “often leads to increased injury and death rates among this segment of the population during disasters.” (Ex. 65, at CNY020275; see also Blanck Decl. ¶ 34 (“When there is a lack of system-wide disaster planning for persons with disabilities . . . persons with disabilities are vulnerable to significant life-threatening harm.”)). B. The City’s Emergency Planning Structure
4. The City’s emergency preparedness program consists of numerous plans, guides, strategies, playbooks, scripts, and protocols designed, among other things, to educate the public about emergency preparedness; to guide evacuation, transportation, and shelter during an emergency; to disseminate emergency information during a disaster; and to aid the City and its residents in recovering from an emergency. (See, e.g., McKinney Decl. ¶ 14; Exs. 1-4A, 6-26,
8

28-36, 40-42, 113). The City’s primary planning documents include the Area Evacuation Plan (Ex. 245A), the Coastal Storm: Evacuation Plan (Ex. 6), and the Coastal Storm: Sheltering Plan (Ex. 7). These general plans are supplemented by many other more specific plans, as well as by playbooks, manuals, and field guides, detailing how the plans should be implemented.
5. OEM is the City agency responsible for coordinating the City’s emergency planning and responses to emergency situations. Among other things, OEM is responsible for preparing the City’s emergency plans, conducting training and exercises, and overseeing the City’s extensive education and outreach program. (See McKinney Decl. ¶ 9; Ex. 113, at P001941). See also N.Y.C. Charter, Ch. 19-A, §§ 495-497. OEM has more than 200 employees, and is divided into at least six levels of management. (See Tr. 281:14-16; Ex. 44, at CNY006811).
6. The City has a Special Needs Coordinator, whose role it is to advocate within OEM for people with special needs and to provide guidance on incorporating the needs of people with disabilities into the City’s emergency plans. (See Belisle Decl. ¶ 2). Aaron Belisle was the full-time Special Needs Coordinator until August 2012, when he moved to a different position at OEM. (Tr. 282:10-14). As of the time of trial in this case, the City still had not replaced Belisle with a full-time Special Needs Coordinator. (Id. at 282:20-23). Instead, from August 2012 until at least the time of trial — a period that included Hurricane Sandy — Belisle performed both his new job and the role of Special Needs Coordinator on an acting basis. (See Belisle Decl. ¶ 4; Tr. 282:10-23).
7. Belisle testified that he is involved in many facets of OEM’s work, that he feels empowered to raise issues regarding the needs of people with disabilities, and that he believes his input is valued. (See Belisle Decl. ¶¶ 13, 20, 21). Belisle also testified that he participated in
9

drafting several of the City’s plans, operational documents, and online trainings. (Belisle Decl. ¶ 33). Belisle had no involvement, however, in drafting some of the City’s core emergency plans, including its sheltering and evacuation plans. (Tr. 285:1-5). And while the Special Needs Coordinator may make suggestions about the City’s emergency plans, Belisle testified, he does not have the authority to approve (or reject) them. (See Tr. 284:8-20 (“Ultimately, the plans are not approved by me. I would say that my suggestions are taken under advisement, and used or not used. Ultimately, I do not sign off on the plans.”); id. at 357:24-358:1).
8. In fact, the OEM Special Needs Coordinator is on the lowest rung of OEM’s organizational chart. (Ex. 44). Moreover, the position of Special Needs Coordinator has no staff. (Ex. 44; Tr. 281:23-25). Besides the Special Needs Coordinator, there is no one else at OEM whose job specifically includes representing people with disabilities in disaster preparedness. (Tr. 282:1-4). Nor is there a central coordinator for the City who represents people with special needs in the event of an emergency. (Tr. 282:25-283:4).
9. In addition to the Special Needs Coordinator, who represents the interests of people with disabilities within OEM, the MOPD helps to ensure that City services and programs more generally address the needs of people with disabilities. (See Calise Decl. ¶ 3). Although the Office responded, and continues to respond, to the needs of people with disabilities related to Hurricane Sandy (see id. ¶¶ 10-17, 19, 23-33, 35), the Commissioner of the MOPD, Victor Calise, acknowledged that he does not have a substantial role in emergency planning (see Tr. 437:15-438:9).
10. There was no evidence that either the Police or the Fire Department employs anyone responsible for ensuring that the department’s emergency plans and policies accommodate the needs of people with disabilities. (See Tr. 341:9-16; Maniotis Dep. 34:5-24;
10

Villani Dep. 12:17-21; Wahlig Dep. 51:15-52:16). OEM Assistant Commissioner Dina Maniotis testified that she was not aware of anyone in either department who is “a liaison specific for persons with disabilities.” (Maniotis Dep. 34:5-24). NYFD Division Chief Fredrick Villani testified that the FDNY’s Bureau of Operations — the unit responsible for working with OEM (see Villani Decl. ¶ 3) — does not have a person responsible for ensuring that the Bureau’s plans and policies comply with the ADA. (See Villani Dep. 12:17-21). And James Wahlig, an NYPD Deputy Inspector in the Operations Division — the division responsible for the Police Department’s emergency response (see Wahlig Decl. ¶¶ 2, 5) — testified that he did not know if the Police Department had anyone responsible for addressing the needs of people with disabilities in an emergency. (See Wahlig Dep. 51:15-52:16). C. Involving People with Disabilities in Emergency Planning
11. One way in which emergency planners can help ensure that the needs of people with disabilities are incorporated sufficiently into emergency plans is to include people with special needs in the planning process. (See, e.g., Belisle Decl. ¶ 30 (“One of the ways we ensure the plans are reflective of those they serve is to include community members in the planning process.”); Blanck Decl. ¶ 57 (“Meaningful participation by the disability community is central to effective disaster planning.”); Kailes Decl. ¶ 128 (similar)).
12. The parties disagree about the extent to which people with disabilities are included in the City’s emergency planning process. The City’s expert Elizabeth Davis testified that the City’s planning process is “collaborative and inclusive” and that its emergency plans “are developed in conjunction with a [sic] multiple stakeholders, governmental and nongovernmental organizations, a number of which have direct experience working with the disability community.” (Davis Decl. ¶ 4). By contrast, Plaintiffs’ expert Peter Blanck testified
11

that “the disability community has not been meaningfully and effectively engaged by New York City in the emergency planning process.” (Blanck Decl. ¶ 58; see also Kailes Decl. ¶ 129 (“[T]he City has not actually engaged the disability community in a way that the community views as legitimate, meaningful, or in a way that uses their input and expertise.”)).
13. The City maintains a Special Needs Advisory Group (“SNAG”), composed of approximately fifty representatives of agencies, service providers, and advocacy groups that represent and work with people with special needs. (See Belisle Decl. ¶¶ 3, 34). The group, which is chaired by the Special Needs Coordinator, meets quarterly to discuss emergency planning and to offer feedback and suggestions to the City. (Id. ¶¶ 3, 34, 37). Its members have participated in emergency training, given presentations, and advised OEM on some of its outreach materials. (Id. ¶ 36). In particular, SNAG helped develop the Ready New York: My Emergency Plan guide (Ex. 3), an emergency preparedness guide, the goal of which is to help people, particularly those with special needs, develop a personal emergency plan. (See Belisle Decl. ¶ 38; Tr. 377:21-379:18).
14. SNAG’s role is merely advisory. (See Tr. 347:8-22). The group has no decisionmaking authority and, indeed, has not even seen any of the City’s emergency plans in their entirety. (Id. at 347:11-22). Some SNAG participants expressed frustration at what, in their view, is a lack of opportunity for the group to meaningfully contribute to the City’s core emergency plans. (See, e.g., Trapani Decl. ¶ 29 (testifying that in her time at SNAG, she was not given the opportunity to comment on the adequacy of the City’s emergency plans with respect to people with disabilities); Tr. 145:9-24, 146:6-147:25 (employee of Plaintiff organization CIDNY, Margi Trapani, testifying that CIDNY stopped sending a representative to SNAG because she “felt, and [CIDNY’s] executive director concurred, that the time there was not
12

valuable to [CIDNY’s] interests in helping people prepare for emergencies or disasters, [and] that [SNAG was] having very limited effects on anything to do with the real needs of people with disabilities as they experience emergencies and disasters”); Tr. 509:11-25 (Executive Director of Plaintiff organization BCID, Joan Peters, testifying that “the concerns of the disability community” were not being addressed by SNAG and that she therefore decided that BCID would no longer attend SNAG meetings)). D. Evacuations
15. The City has two principal plans for evacuation: the Coastal Storm Evacuation Plan (Ex. 6) and the Area Evacuation Plan (Ex. 245A).4 The former is the City’s plan for evacuations in advance of a coastal storm or any other large-scale event with advanced warning. The latter is its general evacuation plan for emergencies that occur without warning, including but not limited to terrorist attacks. (See Wahlig Decl. ¶ 10; Tr. 784:25-785:2; Ex. 245A). Its “purpose” is to “coordinate evacuations of one or more neighborhoods due to large-scale, nonotice incidents.” (Ex. 245A, at 6).
16. The Area Evacuation Plan in effect at the time this case was filed was approved in 2005. (See Ex. 5). In September 2012, the plan was revised; a draft version of the revised plan that had not yet been approved was entered into evidence at trial. (See Ex. 245; Tr. 727:3-7). Some of the witnesses’ declarations were based on the 2005 Area Evacuation Plan, and some were based on the 2012 draft. (Compare, e.g., Blanck Decl. ¶ 70 (citing 2005 plan), and Kailes Decl. ¶ 37 (same), with McKinney Decl. ¶ 19 (citing 2012 draft); Davis Decl. ¶ 77 (same)). The

4

The City has a separate plan for the evacuation of health care facilities. (See Ex. 9).

Plaintiffs have not alleged that this plan is deficient and did not present any evidence that the

plan fails to address the needs of people with disabilities. (See Pls.’ Revised Proposed Findings

of Fact & Conclusions of Law, Docket No. 154). Accordingly, it is not addressed here.

13

plan was revised again in February 2013. (Ex. 245A). That version of the plan was formally approved on March 4, 2013 — one week before trial. (Ex. 245A; Tr. 863:9-15).5
17. Eight pages of the 107-page Coastal Storm Evacuation Plan are devoted to the “Homebound Evacuation Operation” (“HEO”), the purpose of which is “to coordinate evacuation assistance for homebound individuals who have no other options for evacuation.” (Ex. 6, at CNY000139). With the exception of the HEO, which is discussed in more detail below, the Coastal Storm Evacuation Plan fails to provide any specific details about how the City will ensure that people with disabilities are able to evacuate.
18. The 2005 version of the Area Evacuation Plan did not include any information regarding the evacuation of people with disabilities. (See Ex. 5). Although the version of the plan that was approved on the eve of trial states that “[e]very operational strategy must account for populations with special needs and mobility impairments” (Ex. 245A, at 8), it provides little information about exactly how such populations will be accommodated. It contains a “Special Needs and Mass Care operational strategy” (Ex. 245A, at 33), but it does little more than incorporate the HEO, which had been developed for evacuation of homebound individuals during coastal storms (see McKinney Decl. ¶ 19). With the exception of the HEO, there is no information in the Area Evacuation Plan about how the City will evacuate people with disabilities from multi-story buildings or how it will ensure sufficient accessible transportation.

5

The City, however, did not advise Plaintiffs or the Court that the revised Area Evacuation

Plan had been adopted until March 18, 2013 — one day before the close of testimony. (See Tr.

851:6-853:24). Nevertheless, as the Area Evacuation Plan is central to the City’s emergency

planning and because the parties stipulated to its admission (Ex. 566), the Court will consider the

revised plan. Unless otherwise specified, all references in this Opinion to the Area Evacuation

Plan are to the version approved on March 4, 2013.

14

a. Building Evacuations 19. FDNY is the lead City agency responsible for building evacuations. (Villani
Decl. ¶ 34). The NYPD is also involved in emergency evacuations and, in particular, in canvassing buildings to identify and rescue those who may be unable to evacuate without assistance. (Wahlig Decl. ¶ 20).
20. As Defendants’ expert Elizabeth Davis testified, New York is “a vertical, not a horizontal city.” (Tr. 917:10-13). The City has thousands of multi-story buildings. (See Kailes Decl. ¶ 57). Naturally, evacuation from these buildings may be more challenging for people with disabilities than for others. (See, e.g., Blanck Decl. ¶ 63; Halbert Decl. ¶¶ 9, 12; Kailes Decl. ¶¶ 55, 57; Tr. 462:18-23, 715:23-716:5; Ex. 65, at CNY020324). For example, many people with disabilities are unable to navigate stairs independently and therefore need assistance evacuating during an emergency in which elevators are rendered inoperable or may not be used. (See Trapani Decl. ¶ 27(e); Kailes Decl. ¶ 55; Tr. 462:18-23). In addition, many people with disabilities rely on wheelchairs or other assistive devices or service animals that, where possible, should be evacuated with them. (See Ex. 65, at CNY020335, CNY020341). As Plaintiff’s expert Peter Blanck testified, because of these challenges, “[e]ffective and adequate evacuation planning from high rise structures is important to the needs of people with mobility impairments, and other disabilities, in the event of large scale or localized evacuations.” (Blanck Decl. ¶ 63).
21. The City’s plans generally assume that people will be able to evacuate their buildings without assistance. (See, e.g., McKinney Dep. Vol. III 28:11-13 (“[W]e rely on individuals to be prepared and to leave when they’re asked to leave.”); see also Ex. 1, at CNY000040 (Ready New York emergency planning guide for seniors and people with disabilities
15

instructing readers to not to use elevators during an emergency, but failing to suggest an alternative for those whose disabilities prevent them from navigating stairs)).
22. With the exception of the HEO, the City’s emergency plans fail almost entirely to address the needs of people with disabilities during an evacuation of a multi-story building. Belisle, OEM’s Special Needs Coordinator, testified that there is nothing in the written plans “[s]pecific to [the evacuation of] people with disabilities” from high-rise buildings. (Tr. 309:2124; see also Tr. 358:18-22 (Belisle testifying that he is not aware of any Fire or Police Department plans that address the evacuation of people with disabilities from high-rise buildings)). Representatives of the NYPD and FDNY testified that they do not have any plans that address “high-rise evacuations for people with disabilities in the City of New York.” (Tr. 789:9-12 (FDNY Division Chief Villani); Tr. 731:4-7 (NYPD Deputy Inspector James Wahlig); see also Manahan Dep. 96:13-25; Wahlig Dep. 59:12-16, 100:3-7).
23. FDNY Division Chief Villani testified that there was no need to plan specifically for the evacuation of people with disabilities, because the Fire Department “treat[s] everybody the same way.” (Tr. 945:10-11; see also id. at 307:2-5 (testimony of Belisle that his “understanding of the fire department’s plans is that they treat everyone who they help evacuate from a high-rise building as having a special need”); id. at 945:10-11 (FDNY Assistant Chief Manahan testifying that “[i]f somebody is stuck and needs to be removed, we treat everybody the same way”)). Villani explained that “FDNY personnel use their training and experience to respond to and evacuate individuals with disabilities in much the same way as with able-bodied individuals: firefighters, paramedics and EMTs quickly assess the needs of the individual and transport them out of harm’s way — whether to a hospital or other safe place — depending on the needs of the individual and the dictates of the particular emergency situation.” (Villani Decl.
16

¶ 36). NYPD Deputy Inspector James Wahlig testified that the NYPD conducts evaluations in a similar manner, treating people with disabilities who require evacuation on a “case-by-case basis.” (Tr. 732:17-20).
24. The City has several resources that may be used to assist in evacuating people with disabilities. For example, firefighters carry stokes baskets, backboards, and skids, all of which allow them to transport people who are unable to evacuate on their own. (See Tr. 958:310). Every ambulance in the City is equipped with a stair chair, a device that allows emergency responders to assist non-ambulatory evacuees down stairs. (Villani Decl. ¶¶ 39-40). While NYPD police cars do not carry stair chairs, the Emergency Services Unit, NYPD’s special operations division, has special equipment, including stair chairs, necessary to assist nonambulatory evacuees. (See Tr. 751:12-17).
25. Although FDNY Chief Villani testified that the Fire Department’s Emergency Medical Services “protocols allow the transportation of a wheelchair, a home health aide, or service animal” with an evacuee (Villani Decl. ¶ 42; see Tr. 797:4-15), NYPD Deputy Inspector Wahlig testified that the Police Department provides no such guidance (see Tr. 731:8-732:20).
26. There is little doubt that the FDNY and the NYPD are capable of rescuing individuals with disabilities from high-rise buildings under ordinary circumstances. (See, e.g., Villani Decl. ¶¶ 34, 35, 45; Tr. 923:1-22). It is less clear, however, that they would be able to do so during a large-scale evacuation, particularly one that occurs with little or no notice. (See Kailes Decl. ¶ 61). As Plaintiffs’ expert June Kailes testified, “[i]n a mass evacuation, it may be impossible for fire personnel to get to the numbers of people who will need evacuation assistance, and responding fire personnel may not be able to coordinate with ambulance services.
17

Moreover, first responders may need to fight against the tide of people going down and out of the building in order to get [their] equipment to the correct location.” (Id.).
27. The City does not require most high-rise buildings to maintain emergency evacuation devices for people with disabilities and, indeed, most buildings do not have them. (See id. ¶ 60; Tr. 307:23-308:7). Nor does the City have any plan for making these devices available during an emergency. (Tr. 307:20-24). As noted above, with the exception of the HEO, the City does not, in fact, have any plan for how people who cannot evacuate on their own, such as people with mobility disabilities, will be evacuated in these circumstances. (See Kailes Decl. ¶ 60; Blanck Decl. ¶ 68; see also Delarosa Decl. ¶ 38 (class member testifying that she called 911 in advance of Hurricane Sandy and “the 911 operator told [her] that [the operator] did not know what the emergency plans were for people who use wheelchairs”)). Plaintiffs’ expert Peter Blanck testified that without such a plan, “it will be difficult for the City to effectively evacuate people with disabilities from [high-rise] structures, . . . . particularly . . . during a large scale evacuation and for emergencies with no advance warning.” (Blanck Decl. ¶ 68).6
b. Transportation 28. The City’s emergency evacuation plans rely heavily on the use of public
transportation. (See, e.g., Ex. 6, at CNY000130 (“[A] successful evacuation will depend on the efficient use of mass transportation.”); id. (noting that, “[i]n the worst case scenario, . . . . about 1.83 million [people] are expected to use public transportation” to evacuate during an

6

Plaintiffs’ witnesses suggested that the City could accommodate people with disabilities

during an evacuation by requiring high-rise buildings to maintain evacuation devices. (See, e.g.,

Tr. 201:25-203:17). The City has asserted that such a requirement would be unduly expensive

and difficult to implement. (See Defs.’ Proposed Findings Fact & Conclusions Law ¶ 77 (citing

Tr. 202:17-203:13, 257:20-258:9, 909:7-910:7, 920:15-922:14)). Because the trial was limited to

liability, with remedies to be discussed at a later stage, the Court need not and does not address

the issue here.

18

emergency); Ex. 245A, at 25 (“[Public transportation] will be a key component of many evacuation options, both for moving evacuees from the evacuation area, and for redistributing those displaced by the incident.”); Tr. 318:19-22 (Belisle testifying that “the emergency plans operate under the assumption that people are going to use the existing transportation resources”); Tr. 735:20-736:2 (Wahlig testifying that an emergency evacuation would rely on the City’s existing public transportation infrastructure); see also Ex. 68, at CNY00023744 (Mayor stating during press conference in advance of Hurricane Sandy that, “[i]f you are going to” a shelter, “we strongly urge you to get there via public transportation”)). Accordingly, the City encourages people to use public transportation to evacuate during an emergency. (See, e.g., Tr. 318:11-18; Ex. 4A, at CNY000028 (directing people to “[u]se public transportation if possible” to evacuate in an emergency)). In fact, Belisle testified that, with the exception of the HEO, the City was “not responsible for transportation of people to evacuation centers” and that the City plans for “people [to] find their [own] way to evacuation centers.” (Tr. 318:23-319:3).
29. Most of the City’s public transportation, however, is inaccessible to people with disabilities. (See, e.g., Tr. 315:11-15 (Belisle testifying that “the majority of subway stops in New York are not accessible”); id. at 461:8-11 (testimony of MOPD Commissioner Calise that public transportation in New York “presents challenges” to people with disabilities); Kailes Decl. ¶ 39; see also Ryan Decl. ¶ 18 (“[T]he usual ways of traveling in New York City are extremely inaccessible to wheelchair-users . . . .”); Conner Decl. ¶ 15 (class member testifying that “the types of public transportation available to [her] are very limited” because she is blind)). The vast majority of the New York City subway system is inaccessible; indeed, less than twenty percent of all subway stations are accessible. (See Ex. 157, at P002127, P002130-37; Curry Decl. ¶ 29; Halbert ¶ 15; Torres Decl. ¶ 23). Public buses have only two seats that can
19

accommodate wheelchairs (Tr. 187:8-11, 188:15-18), and during an emergency may be too full to accommodate passengers with disabilities. (See Tr. 187:12-23; Martinez Decl. ¶ 35.) Only about two percent of the City’s yellow taxicabs are accessible to people with disabilities, see Noel v. N.Y.C Taxi & Limousine Comm’n, 687 F.3d 63, 66 (2d Cir. 2012), and those that are accessible pick up passengers only in Manhattan. (See Tr. 315:16-18, 455:20-456:19, 460:20461:1).
30. To address these deficiencies, New York State’s Metropolitan Transit Authority (the “MTA”) provides paratransit services — that is, accessible public transportation — through the Access-A-Ride program. (See Morales Decl. ¶ 28; Ryan Decl. ¶ 19; Tr. 337:23-25, 338:1-5, 459:20-22). See also 49 C.F.R. § 37.121 (requiring that “each public entity operating a fixed route system” to “provide paratransit or other special service to individuals with disabilities”). Because “[m]uch of New York City’s public transportation system is not accessible to persons who use wheelchairs. . . . , persons with mobility disabilities rely disproportionately on paratransit for travel around New York City.” (Trapani Decl. ¶ 67). Unlike other forms of public transportation, however, paratransit ordinarily requires a user to reserve a ride at least twenty-four hours in advance. (See Bell Decl. ¶ 28; Buckner Decl. ¶ 19; Conner Decl. ¶ 16; Morales Decl. ¶ 28; Ryan Decl. ¶ 19; Torres Decl. ¶ 23; Tr. 193:13-15, 251:19-21, 337:5-9, 458:1-6).
31. The City directs people with disabilities to continue to rely on paratransit in an emergency. (See, e.g., Tr. 608:2-8; see also Ex. 58, at CNY00025360, CNY00025362 (scripts from 311, the City’s government information hotline, for Hurricanes Irene and Sandy informing callers that “Access-A-Ride should be able to help [people with disabilities] get to an evacuation center”)). There is nothing in the City’s plans, however, to ensure that people with disabilities
20

are actually able to use paratransit during an emergency. The City’s plans do not, for example, mandate that paratransit be available without reservations during an emergency; that it remain open for a certain amount of time after the issuance of an evacuation order; or even that it be available at all during an emergency. (See, e.g., Tr. 789:3-5 (FDNY Chief Villani testifying that the plans do not contain any directive about the availability of paratransit during an emergency)). Nor may the City direct Access-a-Ride’s operations during an emergency: Access-a-Ride is not run by the City but rather by the MTA, a public corporation chartered by the state, and the City has no agreement with the MTA to provide services during an emergency. (See Kailes Decl. ¶ 46; Tr. 335:20-23, 336:6-9, 336:18-21, 337:1-4, 337:20-21, 374:23-375:9).
32. In fact, the City has no meaningful plan whatsoever to ensure sufficient accessible transportation to evacuate people with disabilities during an emergency. With the exception of the HEO, the Coastal Storm Evacuation Plan contains no information at all about the transportation of people with disabilities during an emergency evacuation. (See Ex. 6). And the Area Evacuation Plan states that, in the event of an emergency, the “MTA may reroute paratransit vehicles to support special needs evacuations”; that the Taxi and Limousine Commission “may request support from private ambulette operators”;7 that “MTA Paratransit may be asked to implement shuttle routes to hospitals or Evacuation Staging Areas”; and that “[b]uses and paratransit vehicles may be given special or prioritized access on restricted routes if used for evacuation operations.” (Ex. 245A, at 28 (emphases added); see also Tr. 788:9-789:5 (FDNY Chief Villani testifying that the plans contain no directives requiring support from the MTA or the Taxi and Limousine Commission in an emergency)). The City has not even

7

New York law defines an ambulette as “a special-purpose vehicle, designed and equipped

to provide nonemergency transport, that has wheelchair-carrying capacity, stretcher-carrying

capacity, or the ability to carry disabled individuals.” 18 N.Y.C.R.R. § 505.10(b)(3).

21

determined whether sufficient accessible transportation would be available in the event of an emergency. (See Tr. 293:19-23 (Belisle testifying that he is not aware “of any surveys of the sufficiency of accessible transportation in the event of an emergency”)); id. at 743:1-3 (testimony of NYPD Deputy Inspector Wahlig that “[t]he NYPD doesn’t know how many paratransit vehicles could be available to it” in an emergency)).
c. The HEO 33. As noted, the purpose of the HEO is to “coordinate evacuation assistance for
homebound individuals who have no other options for evacuation” in an emergency. (Ex. 6, at CNY000139). Although it was developed as part of the Coastal Storm Evacuation Plan, the City now views the Operation as an all-hazards plan to be implemented, when needed, in any kind of emergency. (See Villani Decl. ¶ 9; Ex. 245A, at 36).
34. The HEO is designed to begin when the City’s shelter system, discussed below, opens and to end six to eight hours before a storm makes landfall. (See Ex. 6, at CNY00140). The HEO does not resume after a storm has cleared.
35. People are referred to the HEO when they call 311, the City’s government information hotline, during an emergency and state that they require evacuation assistance. (See Ex. 6, at CNY000139 (“Public messaging will inform homebound individuals in need of transportation assistance to call 311.”); Morrisroe Decl. ¶ 41 (stating that homebound individuals are directed through “mayoral press conferences and press releases, NYC.gov, 311’s online Web site and texting services, the MOPD and its Web site,” and emails to nongovernmental partners to call 311 if they need assistance evacuating)).
36. When someone calls 311 to inquire about assistance evacuating, the 311 representative determines which of three levels of assistance the caller requires. (See Ex. 6, at
22

CNY000140; Morrisroe Decl. ¶ 42; Villani Decl. ¶¶ 10-11). First, people who are capable of getting to the sidewalk in front of their building are transferred to MTA paratransit dispatchers. (See Ex. 6, at CNY000142; Villani Decl. ¶¶ 11-12). Second, for callers who can sit up unassisted for an extended period of time but cannot exit the building on their own, 311 dispatchers take their contact information and forward it to the FDNY. (See Ex. 6, at CNY000142; Villani Decl. ¶¶ 11-12). The FDNY compiles a list of those who need assistance, and dispatches teams of firefighters on a school bus to evacuate them. (See Ex. 6, at CNY000193-94; Manahan Decl. ¶¶ 16-19; Villani Decl. ¶ 12). If an evacuee does not answer the door, the FDNY evacuation team makes one attempt to contact the evacuee by phone and, if the evacuee cannot be reached, it moves on. (See Ex. 6, at CNY000193). Finally, those who are incapable of sitting up unassisted and must be transported on a stretcher are transferred to the Emergency Medical Service (“EMS”) through the 911 system to be transported by ambulance to a hospital outside the evacuation zone. (See Ex. 6, at CNY000142; Villani Decl. ¶¶ 11-12).
37. The HEO does not allow evacuees to choose their destination. As described in the Coastal Evacuation Plan, all of those evacuated by the HEO are transported to an evacuation center or a hospital, depending on the level of care they require. (See Ex. 6, at CNY000142; Tr. 314:11-15). FDNY Chief Villani testified that those who require assistance evacuating from their building may also request that they be left in front of the building and not be transported anywhere. (Tr. 793:22-794:11).
38. The HEO is not intended to meet the needs of all people with disabilities during an evacuation. Instead, it is designed to be a limited program, a “last resort” for those who are homebound and unable to evacuate without assistance. (Ex. 6, at CNY000107; Villani Decl. ¶ 9; Davis Decl. ¶ 81; Tr. 776:8-10, 895:6-9; see also Kailes Decl. ¶ 40 (“The scale of the program
23

appears to be designed to provide individualized assistance to a small number of people.”)). During Hurricane Irene, in which approximately 370,000 residents were ordered to evacuate (see Ex. 154, at P001703), only about 200 people were evacuated via the HEO (Manahan Decl. ¶ 13); and during Hurricane Sandy, in which approximately 375,000 people were ordered to evacuate (see Ex. 78, at CNY00022673), the HEO evacuated fewer than 100 people (McKinney Dep. Vol. III, at 18:12-16).
39. Despite this limited mandate, the City’s expert Elizabeth Davis testified that the Operation has “served the needs of the people who requested its services” and that “the FDNY has the capacity to successfully fulfill all requests during its implementation.” (Davis Decl. ¶ 80). In support of this conclusion, Davis cited the deposition testimony of Kelly McKinney, OEM’s Deputy Commissioner of Planning and Preparedness, that, theoretically, there is no “upper bound to the capacity” of the HEO; the capacity of the Operation at any given point, McKinney explained, depends on the resources available to it at that point, and the availability of such resources is a “function of time.” (McKinney Dep. Vol. I, at 75:11-25; see Davis Decl. ¶ 80). But McKinney did not, in his deposition or otherwise, state what the capacity of the Operation as currently resourced is, whether he believed such capacity was sufficient to evacuate all those who might require evacuation through the HEO during an emergency, and, if not, how long it would take to acquire the resources to make the HEO sufficient. (See McKinney Dep. Vol I, at 74:9-75:25). And Davis testified that she had not seen any assessment of the capacity of the HEO. (Tr. 895:23-896:3).
40. The evidence presented at trial does support the conclusion that FDNY was able to fulfill all the requests it received for evacuation as part of the HEO during Hurricanes Irene and Sandy. FDNY Assistant Chief Manahan testified that, during Hurricane Irene, the Fire
24

Department was able to safely evacuate everyone who requested its assistance through the HEO. (See Manahan Decl. ¶ 13). He testified that, during Hurricane Sandy, he did not “receive any reports of any problems or disruptions involving [the FDNY’s] evacuation activities.” (Manahan Decl. ¶ 21). Plaintiffs did not introduce any evidence to the contrary.
41. Notwithstanding the FDNY’s ability to serve all of those who requested its assistance during Hurricanes Irene and Sandy, there are several reasons to believe that the HEO could be insufficient to meet the needs of people with disabilities in future emergencies. First, the evidence at trial related solely to the Fire Department’s resources. The Fire Department, however, is not involved in transporting those who are able to exit their buildings unassisted, but who need assistance getting to a shelter or other location. (See Ex. 6, at CNY000140-42). Instead, the HEO depends upon paratransit to evacuate these people. (See Ex. 6, at CNY000142). The Fire Department’s capacity is therefore irrelevant to the HEO’s ability to accommodate them. And, as explained above, there is nothing in the City’s emergency plans to ensure that paratransit will remain available in an emergency.
42. Second, the City does not inform the public about the existence of the HEO. (See Tr. 293:13-16; Kailes Decl. ¶ 41). Homebound individuals are directed to call 311 if they are unable to evacuate. (See, e.g., Ex. 6, at CNY000140; Ex. 61 (email to service providers of people with special needs before Hurricane Sandy stating that “[c]lients who cannot evacuate their homes independently and who do not have any other options can call 311 to coordinate transportation to an evacuation center”); Ex. 67, at CNY 00023739 (mayoral press conference before Hurricane Sandy stating “[i]f you can’t get to a shelter by yourself, you can request transportation by calling 311”); Morrisroe Decl. ¶ 41; see also Ex. 3, at CNY001091 (“Call 911 if you are stranded and need emergency assistance to evacuate your home.”)). But they are not
25

informed that there is a City program that could help them do so, or that that Operation is available before — and, indeed, only before — a storm actually makes landfall.
43. It is difficult to know how many more people would have requested the assistance of the HEO during Hurricanes Irene and Sandy if they had known that it was available, or whether the Operation would have been able to accommodate an increase in requests. (See Kailes Decl. ¶ 40 (noting that while the HEO evacuated 200 people during Hurricane Irene and fewer than 100 people during Hurricane Sandy, “[i]n a major coastal storm, thousands of people with disabilities, if not more, might need to evacuate”); Villani Decl. ¶ 22 (“It is not possible to predict with precision the number of individuals who will require evacuation assistance during an emergency.”); Tr. 779:1-10 (Villani testifying that the Fire Department has not assessed how many wheelchair-accessible vehicles would be available for the HEO; that he did not know how many vehicles of any kind are available for the Operation; and that there is no “predefined number of vehicles” available to support homebound evacuations); Id. at 781:10-14 (Villani testifying that the Fire Department has not determined the greatest number of people it could evacuate through the HEO)).
44. Third, the HEO is triggered by a request for evacuation assistance. Some people with disabilities, however, may not be able to request such assistance (and may not have someone who could request assistance on their behalf). Moreover, the City depends on the 311 system, discussed below, to “serve as the single point of intake for all homebound individuals requesting evacuation assistance.” (Ex.6, at CNY000140). Indeed, it provides no other method for people with disabilities to request assistance. (See, e.g., Tr. 744:1-7). As explained below, however, 311 may be unreliable or unavailable during an emergency. The City has not even
26

evaluated the capacity of 311 to assist those who might require evacuation assistance. (See Tr. 313:15-18).
45. Finally, and most fundamentally, it is hard to know whether, or how, the HEO could function in a no-notice emergency, such as a terrorist attack. As noted above, the HEO was originally conceived as part of the Coastal Storm Evacuation Plan for use in emergencies with advance notice. (See McKinney Decl. ¶ 19). And, by its terms, it appears to depend on such advance notice. As currently written, for example, the Operation ends at least six hours before an emergency actually strikes, and does not reactivate afterwards. (See Ex. 6, at CNY00140; Tr. 779:15-23, 952:10-12; Manahan Dep. 88:6-18; 101:12-15). It is designed, therefore, to assist homebound individuals in evacuating before a storm makes landfall, not after. (See Ex. 6, at CNY000139-CNY000140; Manahan Dep. Tr. 100:16-17; id. at 101:7-17 (testifying that the Homebound Evacuation Operation is a pre-event plan)).
46. As noted above, earlier versions of the Area Evacuation Plan — the City’s plan for evacuations in no-notice events — did not include the HEO or any other provisions to evacuate people with disabilities. (See Ex. 5). Although the version of the Area Evacuation Plan adopted on the eve of trial incorporates the HEO and provides that it will be implemented “if necessary,” it does not detail how the Operation would be implemented in an emergency without warning. (Ex. 245A, at 36). It is unclear how an evacuation operation that is intended to begin and end before an emergency actually strikes can be applied to an emergency that occurs without warning. Indeed, FDNY Chief Villani conceded at his deposition that because the HEO is “designed specifically for something in advance,” he did not know whether it could be implemented in an emergency without warning and that the Fire Department had neither planned nor prepared for such implementation. (Villani Dep. 15:6-20).
27

d. Evacuations During Hurricane Sandy 47. Hurricane Sandy provided some indication of how the City’s evacuation plans
operate in the event of an emergency with advance notice. 48. The Mayor issued a mandatory evacuation order for the areas of the City most
likely to be most affected by Hurricane Sandy — denominated Zone A — at 11:30 a.m. on Sunday, October 28, 2012. (See Ex. 68, at CNY00023743; Ex. 76, at CNY00023346). The Mayor directed residents of Zone A to evacuate by the end of the day. (See Ex. 76, at CNY00023346). The City directed people who needed assistance evacuating to call 311. (See, e.g., Ex. 61 (email to service providers of people with disabilities stating “[c]lients who cannot evacuate their homes independently and who do not have any other options can call 311 to coordinate transportation to an evacuation center.”); Ex. 67, at CNY00023739 (Mayor’s statement that “[i]f you can’t get to a shelter by yourself, you can request transportation by calling 311. But I would stress that your first option should be to stay with family and friends.”); Ex. 68, at CNY00023744 (Mayor’s statement that “[i]f you cannot evacuate yourself and need assistance, call 311 and we will be sure to make sure somebody comes and helps you”); Morrisroe Decl. ¶ 43).
49. In advance of the evacuation order, Access-a-Ride was available to people with disabilities who made reservations at least twenty-four hours in advance. (Ex. 397, at CNY00022779 (October 26, 2012 Situation Report stating that, as Hurricane Sandy approached, MTA paratransit was “[s]etting up schedules from two-day to one-day booking for clients”)). Paratransit began to shut down almost immediately after the evacuation order was issued on October 28, 2012, with the MTA website announcing that “[o]utbound Access-A-Ride trips” would be “scheduled only until 12 p.m. . . ., and return trips [would] continue until 5 p.m.” (Ex.
28

160, at CNY00382). Any trips scheduled to take place after that time were cancelled. (Id.). By contrast, subway service did not begin to shut down until 7:00 p.m. on October 28, 2012, and MTA bus service was not curtailed until at least 9:00 p.m. (Ex. 76, at CNY00023346; see also Ex. 79, at CNY00022662 (indicating that some subways ran until 10:00 p.m., and some buses did not stop running until 11:00 p.m.)).
50. The NYPD requisitioned thirty MTA buses, and for several hours after public transit had shut down, police officers drove through the evacuation zone providing transportation to those who had no other way to evacuate. (See Wahlig Decl. ¶ 19; Tr. 747:4-23). The buses traveled along a designated route, but also responded to calls for assistance via 311 and 911 as well as reports from patrol officers of people who needed help evacuating. (See Tr. 748:1-6). The bus drivers were not instructed to ensure that the buses did not get too full to allow wheelchair users to access them, and no wheelchair users were evacuated in this way. (Id. at 749:10-12, 750:6-12).
51. The HEO began at 9:00 a.m. on Sunday, October 28, 2012, the same time the City’s shelter system opened (see Ex. 76, at CNY00023346; Tr. 950:9-12), and was deactivated at 10:00 p.m. that same night (see Tr. 952:1-9 (testimony of FDNY Assistant Chief Manahan that the Operation concluded at 10:00 p.m. on October 28, 2012); Manahan Decl. ¶ 17 (same); see also Ex. 79, at CNY00022656 (Hurricane Sandy situation report stating that by 3:00 a.m. all HEO activities had ceased); Manahan Dep. 70:10-15 (confirming that the HEO concluded at 10:00 p.m. on October 28, 2012)). Those who called 311 after that time requesting evacuation assistance were advised not to leave their locations and to shelter in place. (Ex. 79. at CNY00022651, CNY00022659; see Ex. 58, at CNY00025363). The HEO did not reopen after the hurricane passed. (See Tr. 952:3-12).
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52. The storm made landfall at approximately 7:30 p.m. on Monday, October 29, 2012, and by the night of October 30, 2012, it had subsided. (See Ex. 116, at 31; Ex. 81, at CNY00022463). See National Oceanic and Atmospheric Administration, Service Assessment: Hurricane/Post-Tropical Cyclone Sandy, October 22-29, 2012, at 12 (May 2013), available at http://www.nws.noaa.gov/os/assessments/pdfs/Sandy13.pdf (visited on October 31, 2013); see also, e.g., Chubb & Son, Inc. v. Kelleher, No. 92 CV 4484 (CBA), 2006 WL 2711543, at *4, n.2 (E.D.N.Y. Sept. 21, 2006) (taking judicial notice of the National Oceanic and Atmospheric Administration’s records reflecting the date Hurricane Wilma struck a certain region in Florida); Mamiye Bros. v. Barber S.S. Lines, Inc., 241 F. Supp. 99, 116 (S.D.N.Y. 1965) (taking judicial notice of forecasts from the United States Weather Bureau published in the newspaper).
53. In the immediate aftermath of the hurricane, the Fire and Police Departments conducted a search-and-rescue operation. (See Manahan Decl. ¶ 23). The operation was limited to rescuing those in life-threatening situations. (See Manahan Dep. 108:13-14 (“[W]e were searching for people who desperately need to be saved.”); Tr. 946:17-19 (FDNY Assistant Chief Manahan testifying that “a rescue is when there’s — if you didn’t show up at the scene, that the person could suffer serious injury or death”); Kass Decl. ¶ 9). It did not aid those who were in need of evacuation assistance but otherwise safe. (See Manahan Dep. 109:6-15).
54. The record demonstrates that some people with disabilities were unable to evacuate because of insufficient transportation. (See, e.g., Bell Decl. ¶ 30 (class member testifying that during Hurricane Sandy, he “tried to use Access-A-Ride, but the Access-A-Ride dispatch did not answer the phone”); Martinez Decl. ¶ 35 (class member testifying that the evacuation buses were too crowded for him to board in his wheelchair)).
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55. Even after Hurricane Sandy had passed, some class members were unable to access public transit. (See Bell Decl. ¶ 30 (testifying that “[w]hen Access-[A]-Ride started to operate again, [he] was told that only those individuals who had medical emergencies” would be provided transportation); Morales Decl. ¶ 24 (testifying that several days after Hurricane Sandy, she needed to go to the hospital to speak with her doctor, but she was unable to get there because the MTA buses were too crowded for her to board in her wheelchair, and Access-A-Ride did not answer the phone)).
56. MTA buses resumed modified service on Tuesday, October 30, 2012 at 5:00 p.m. (Ex. 81, at CNY00022461, CNY00022468), and bus service was as close to fully operational as possible by October 31, 2012. (Ex. 83, at CNY00022418). Subway service was partially restored on November 1, 2012. (Ex. 85, at CNY00022379). Access-A-Ride began offering limited paratransit service in cases of “medical necessity” on October 31, 2012, and resumed regular service on November 1, 2012, although it did not resume most transportation within Zone A for several more days. (See, e.g., Exs. 365, 367, 375, 378).
57. There is substantial evidence that people with disabilities were stuck in high-rise buildings after the storm. For example, MOPD Commissioner Calise testified that he received calls from people who were stranded in their buildings and, more generally, that it was “known” that people who used wheelchairs were stuck in high-rise buildings in the aftermath of Hurricane Sandy. (Tr. 444:8-24; see Calise Decl. ¶ 26). Belisle also testified that he was aware that people with disabilities had been stranded in their apartments after Hurricane Sandy, but that he did not know how many had been stranded. (See Tr. 310:23-311:4; see also Lekas Miller Dep. 54:12-24 (testifying that in a building she had visited after Hurricane Sandy, there were many people with limited mobility who could not leave their apartments); Ex. 116, at 73:8-10 (testimony of Deputy
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Mayor Caswell Holloway at a City Council hearing that the City recognized that “some New Yorkers [were] unable to leave their homes without elevators or for medical reasons”); Tr. 721:1-8 (Deputy Commissioner for Environmental Health at the City’s Department of Health and Mental Hygiene testifying that it was “clear” after Hurricane Sandy that “there was a need for reaching out to people who might remain stranded”); id. at 947:19-22 (Manahan testifying that he was aware that after Hurricane Sandy there were many people stranded in multi-story buildings); Ex. 329, at CNY00023894 (press release stating that after Hurricane Sandy, there were teams canvassing high-rise buildings in Far Rockaway and Coney Island to “assess[ ] the wellbeing of residents who had not been able to leave their apartments and who may have been without water, electricity and heat”)).
58. Class member Kenneth Martinez, who relies on a motorized wheelchair for mobility and lived in Far Rockaway when Hurricane Sandy struck, testified that he became aware of the impending hurricane on Sunday, October 28, 2012, the day before it was to make landfall. (Martinez Decl. ¶ 28). Police officers directed him to an intersection where buses were gathering to transport evacuees. (Id. ¶ 34). Although there were “four or five buses lined up at the intersection,” Martinez could not get on any of them because they were too crowded for him to board in his wheelchair. (Id. ¶ 35). A bus driver told him that more buses would be arriving within ten to fifteen minutes. (Id.). Martinez waited outside for twenty minutes, but no more buses came. (Id.). He could not stay outside for any longer because it was raining, and he feared that his motorized wheelchair would short out in the rain. (Id.).
59. The following day, Martinez called 311 in an attempt to get evacuation assistance. (Id. ¶ 37). He testified that although he began calling at 12:30 p.m., he could not get through until 4:00 p.m. (Id. ¶¶ 37-38). The 311 operator informed Martinez that he would be put “on a
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list,” but that he would “have to wait.” (Id. ¶ 38). Nobody ever came to assist him. (Id.). That evening, flood water began to fill Martinez’s first-floor apartment, and Martinez was scared that he “was going to drown.” (Id. ¶¶ 39-46). With the water “so high” that his “head was almost to the ceiling,” Martinez began “banging on the ceiling, hoping that the neighbors would hear” him. (Id. ¶ 47). They did — and were able to break a window into his apartment, swim inside, and rescue him. (Id. ¶¶ 48-50).
60. Class member Joyce Delarosa, who uses a wheelchair and relies on oxygen and lives on the east side of Manhattan, testified that during Hurricane Sandy, the power in her building went out, leaving her unable to power her oxygen concentrator or exit the building. (Delarosa Decl. ¶¶ 2, 51-55). She called 911 for evacuation assistance, and was told that, “unless [she] was having an immediate medical crisis and need[ed] to go to the hospital,” she could not receive assistance. (Id. ¶ 57). Because she did not think she needed to be in a hospital, but rather only needed to plug in her oxygen concentrator, she declined emergency assistance. (Id.). She testified that she called 311 to request assistance evacuating her daughter, who also uses a wheelchair, but was told that the City would not provide evacuation assistance unless her daughter needed to go to a hospital. (Id. ¶ 59). Eventually, Delarosa testified, the consequences of lack of oxygen became so severe that she did require medical attention, at which point she called 911 again. (Id. ¶ 64). EMS came to her apartment, used a stair chair to evacuate her, and provided her oxygen. (Id. ¶¶ 64-65). Delarosa testified that the only way she was able to convince the EMS providers to evacuate her daughter too was to lie and say that her daughter needed to go to the hospital as well. (See id. ¶¶ 66-70; Tr. 88:9-89:9).
61. Class member Melba Torres, who uses a wheelchair and lives on the Lower East Side of Manhattan, testified that after receiving an evacuation order, she sent her aide to
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investigate accessible transportation options, but that her aide reported to her that the buses being used to evacuate the people in her building were not wheelchair accessible. (See Torres Decl. ¶¶ 2, 62, 66). As a result, she did not evacuate, and spent six days in her apartment without running water, heat, or electricity. (Id. ¶ 72). At one point, Torres testified, a police officer came to her apartment, but the officer stated that she could not receive evacuation assistance unless she was having a medical emergency. (See id. ¶ 82). E. The Shelter System and Sheltering in Place
62. A core aspect of the City’s emergency plans is providing shelter to those displaced in an emergency. (See Tr. 319:5-9; Ex. 7). Because people with disabilities often require accessible housing or other accommodations, they may be less able than those without disabilities to stay with friends, family, or neighbors during a disaster. (See, e.g., Torres Decl. ¶¶ 25-26 (testimony of class member Melba Torres, who has a mobility disability, that she does not know of anyone with whom she could stay during an emergency because she does not know anyone who both has a wheelchair accessible apartment and could provide her the assistance she needs to complete her daily activities); Delarosa Decl. ¶¶ 27-28 (class member testifying that she does not have any family or friends with whom she could stay); Halbert Decl. ¶ 22 (same); Martinez Decl. ¶ 20 (same)). Therefore, emergency shelters are particularly important for people with disabilities.
63. The City’s plan for providing shelter during a disaster is the Coastal Storm Sheltering Plan (“Sheltering Plan”). (Ex. 7; see Maniotis Decl. ¶ 19). Despite its name, this Sheltering Plan is not limited to coastal storms. (Maniotis Decl. ¶ 19). It is an “all-hazards” plan, meaning that it could be activated during any large-scale emergency, including an emergency that arose without warning. (Id.).
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64. As detailed in the Sheltering Plan, the City uses a “scalable solar system model” for sheltering. (Maniotis Decl. ¶ 21; see Van Pelt Decl. ¶ 12; Ex. 7, at CNY00357). The City has over five hundred shelters, which are grouped into sixty-five “solar systems.” (See Maniotis Decl. ¶ 20; Ex. 7, at CNY000357). Each solar system consists of one evacuation center that serves as the “hub,” along with five to ten shelters. (See Van Pelt Decl. ¶ 12; Ex. 7, at CNY000357). In most cases, one of these shelters is co-located with the evacuation center. (Tr. 326:6-8; Ex. 7, at CNY000360).
65. The City also has eight special medical needs shelters (“SMNSs”), at least one of which is located in every borough. (See Van Pelt Decl. ¶ 13; Ex. 7, at CNY000357; Ex. 14, at CNY001390). The SMNSs are intended to shelter individuals whose needs exceed the capability of the general shelters but who do not require hospitalization. (Van Pelt Decl. ¶ 13; Ex. 7, at CNY000389; Ex. 14, at CNY001390).
66. During every emergency in which the City offers sheltering, all evacuation centers and SMNSs are open. (See Tr. 323:14, 373:10-11; 914:23-915:3; Ex. 7, at CNY000394). Additional shelters are opened based on need. (See Tr. 323:14-15, 914:23-915:3; Ex. 7, at CNY000385, CNY000395). Evacuees seeking shelter are instructed to report first to an evacuation center. (See Van Pelt Decl. ¶ 14; Ex. 7, at CNY000357, CNY000363, CNY000371). Once there, they undergo a basic intake process to evaluate their needs, after which they are either directed to a co-located shelter or transported to another shelter, an SMNS, or a hospital. (See Van Pelt Decl. ¶ 14; Tr. 374:5-12; Ex. 7, at CNY000357, CNY000363, CNY000371).
67. The vast majority of evacuation centers and shelters are located within New York City Department of Education (“DOE”) facilities — that is, school buildings. (Van Pelt Decl. ¶ 16; Ex. 43, at CNY0023932). Although the locations of evacuation centers are publicized in
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advance of an emergency in various ways (Van Pelt Decl. ¶ 15; Ex. 7, at CNY000417; see, e.g., Ex. 4A (brochure providing a list and map of evacuation centers)), the City does not publicize the location of other shelters in the system (see Tr. 322:17-20, 322:25-323:1, 373:3-23).
68. If fully activated, the City’s shelter system has the potential to shelter over 600,000 people. (See Ex. 7, at CNY000359; Van Pelt Decl. ¶ 12).
69. The solar system model has important benefits. First, because the system is scalable, it allows emergency managers to activate facilities only when needed and thus efficiently allocate City staff, equipment, and other specialized resources. (See Tr. 915:14-21; Van Pelt Decl. ¶ 12). Second, it “allows for a consistent message to the public,” as people can be “directed to a limited number of evacuation centers which are publicized” in advance and always open, “rather than to shelters which may or may not be open depending on the size of the storm.” (Davis Decl. ¶ 98). As evacuation information is “not dependent on the size of the storm,” the City’s expert Elizabeth Davis explained, people “can more easily develop an evacuation plan in advance of” an emergency. (Id. (emphasis omitted)).
70. The Court heard testimony about both the architectural accessibility of the City’s shelters — that is, the accessibility to people with disabilities, and particularly mobility disabilities, of the buildings the City uses as shelters — as well as the accessibility of the programs and services offered therein. It also heard testimony about the City’s plans for refuges of last resort and sheltering in place. The Court will address each in turn.
a. The Architectural Accessibility of Shelters 71. The City’s Sheltering Plan is silent as to the architectural accessibility of the
shelter system. (See Ex. 7). It does not require that the City consider accessibility in choosing facilities to serve as shelters, let alone mandate that the shelter system, or any portion thereof, be
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architecturally accessible to people with disabilities. Nor does it provide any guidance to ensure that there are accessible pathways between the shelter entrance, the rooms used for sheltering, and the bathroom, or that the particular rooms set up for sheltering — that is, the rooms chosen as dormitories, used for food service, etc. — are themselves accessible. The other plans related to sheltering similarly lack such guidance. (See, e.g., Ex. 15 (Evacuation Center Field Guide); Ex. 16 (Hurricane Shelter Field Guide)).
72. The City’s written plans do instruct shelter operators, when opening a shelter or evacuation center, to identify which areas of the shelter are accessible to people with disabilities, but they do not provide instructions for how to do so, nor do they require that any of the shelter areas actually be accessible. (See Ex. 15, at CNY01119; Ex. 16, at CNY001258). In addition, during an emergency, shelter operators are provided a checklist to evaluate the accessibility of their shelter. (Belisle Decl. ¶ 48; Ex. 472). The checklist asks shelter staff, for example, to mark the accessible entrances and bathrooms as such. (Ex. 472). But again, it does not require that a shelter actually have accessible entrances or bathrooms, and it does not give instructions for determining whether an entrance or bathroom is accessible. (See id.; Tr. 392:1-6). It is unclear whether shelter operators even use the checklist. (See Tr. 808:19-25, 809:16-20 (testimony of Erin Villari, who managed two different shelters during Hurricane Sandy, stating that she did not check to see if the restrooms at those shelters were accessible)).
73. Significantly, the City does not even know which of its shelters and evacuation centers are accessible. (See, e.g., Tr. 328:23-329:1 (Belisle testifying that the City has yet to determine what percentage of New York public schools — the facilities the City uses for most shelters — have accessible bathrooms); id. at 333:18-22 (Belisle agreeing that “no one from the City knows what percentage of shelters have rest rooms that are accessible to people who must
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use wheelchairs”); id. at 359:23-360:9 (Belisle testifying that he did not know whether all evacuation centers are accessible); Maniotis Dep. 90:3-5 (testifying that she did not know how many shelters are wheelchair accessible)).
74. Further, the evidence at trial demonstrated that many of the City’s shelters and evacuation centers are not fully accessible to people with disabilities — and that the City is aware of that fact. (See, e.g., Tr. 319:21-14 (Belisle testifying that he is “aware that many polling sites,” which are located in the same DOE facilities as shelters, “as they were used the day of election, may be inaccessible”); id. at 330:2 (Belisle testifying that he is “aware that schools lack accessible bathrooms”); id. at 447:14-17 (MOPD Commissioner Calise testifying that he is aware of the fact that “at least some public schools have multiple architectural barriers for persons with disabilities”); id. at 496:25-497:3 (Susan Dooha, Executive Director of Plaintiff CIDNY, testifying that during a conversation with former MOPD Commissioner Matt Sapolin after Hurricane Irene, Sapolin stated “that he believed the City knew that the shelters were not accessible, and that they would not claim that the shelters were accessible”); see also id. at 915:22-916:10 (Elizabeth Davis, the City’s expert, testifying that “[t]here are evacuation centers that appear to have deficiencies [in accessibility] that need correction”)). For example, Special Needs Coordinator Belisle testified that “[n]ot all of [the City’s] shelters are accessible” and that “some of [the City’s evacuation centers] may not be as accessible as we want.” (Tr. 359:21360:4). Similarly OEM Deputy Commissioner McKinney testified that “[n]ot all of the City’s emergency shelters are fully accessible.” (McKinney Dep. Vol. I 105:20-21).
75. When CIDNY employee Trapani compared a list of shelters open during Hurricane Irene with a list of schools identified by the DOE as inaccessible to people with disabilities, she found that the majority of schools used as shelters during Hurricane Irene had
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been characterized by the City itself as inaccessible. (See Trapani Decl. ¶ 35; Tr. 148:14-149:19; Ex. 146). And several witnesses, including the Commissioner of the MOPD, testified about shelters that lacked accessible entrances or bathrooms, or were otherwise not fully accessible to people with disabilities, during Hurricanes Irene and Sandy. (See, e.g., Trapani Decl. ¶¶ 39-41, 43, 52-54, 58, 61-62; Dooha Decl. ¶¶ 57-58, 81-82; Calise Decl. ¶¶ 15-16).
76. Although the record makes clear that many evacuation centers and general shelters are not accessible to people with disabilities, the evidence suggests that SMNSs are wheelchair accessible. (See, e.g., Maniotis Decl. ¶ 24; Tr. 448:13). At a minimum, Plaintiffs did not prove through competent evidence that the SMNSs are inaccessible to people with disabilities. (But see Tr. 541:1-12 (Plaintiffs’ expert Peter Blanck testifying that he visited an SMNS that did not appear to be fully accessible — citing, in particular, apparently inaccessible outdoor showers — but stating that he did not perform “an accessibility assessment”)).
77. Because of its awareness that not all shelters and evacuation centers are accessible — that is, compliant with the ADA — the City has adopted a “usability” standard. (See, e.g., Tr. 363:8-11 (Belisle testifying that “during the training . . . for coastal storm staff,” the City “reiterate[s] the importance of having a usable entrance for people with disabilities” (emphasis added)); Tr. 330:6-10 (Belisle testifying that “before Hurricane Sandy, the City confirmed that “all of the shelters” had “a wheelchair usable entrance” (emphasis added)); Calise Decl. ¶¶ 17-18 (testifying that during Hurricane Sandy, the MOPD chose — and the Mayor, the OEM website, and the MOPD website used — the term “usable” rather than accessible to describe evacuation center entrances because not all of the entrances were “completely code compliant,” but they did “enable an individual using a wheelchair to enter the shelter, sometimes with assistance”)).
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78. As the City’s expert conceded, the concept of “usability” is not equivalent to the ADA’s standard of accessibility. (Tr. 912:25-913:14; 915:22-916:5, 930:5-8; see also Tr. 439:35 (testimony of MOPD Commissioner Calise that usability does not necessarily mean consistent with the ADA); Calise Decl. ¶ 18 (same); Kailes Decl. ¶ 80 (describing usability as “an unclear term, not a standard or reassuring term in the disability community, and likely lead to confusion and lack of trust as to the accessibility at these facilities”)). Instead, it represents the City’s attempt to enable people with disabilities to at least enter a facility, despite the fact that it might be inaccessible within the meaning of the ADA. (See Calise Decl. ¶ 18; Tr. 439:3-24, 913:7-13). For example, during Hurricane Sandy, some evacuation centers had temporary ramps that, while not ADA-compliant, enabled a person using a wheelchair to enter the facility, at least when assisted by a police officer. (See Calise Decl. ¶¶ 15, 18).
79. During Hurricanes Irene and Sandy, some shelters lacked even a usable entrance. (See, e.g., Trapani Decl. ¶¶ 52-53 (testifying that at Newcomers High School, used as a shelter during Hurricane Sandy, the ramp leading to the front door was unsafe, the front door was too narrow to accommodate a person using a wheelchair, and there was no indication of any other entrance that was accessible); id. ¶ 58 (testifying that at P.S. 166, another shelter used during Hurricane Sandy, the accessible entrance was difficult to find and locked and that there was no doorbell); Morales Decl. ¶¶ 18-22 (class member testifying that she was unable to get into a shelter during Hurricane Irene because the accessible entrance was locked). But see Belisle Decl. ¶ 65 (testifying that the City, presumably after Trapani’s visit, identified an accessible entrance at Newcomers High School)).
80. Some evacuation centers and shelters also lacked bathrooms that were even usable by people with disabilities. (See, e.g., Torres Decl. ¶¶ 38-39 (class member testifying that
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she was unable to use the bathroom at Hunter College, the shelter to which she evacuated during Hurricane Irene, because the stalls were too narrow to accommodate her wheelchair)). The City’s public information during Hurricane Sandy stated only that the shelters would have usable entrances; it made no commitment that the shelters would have usable — let alone accessible — restrooms, or that the dormitories, food distribution areas, and other shelter areas would themselves be usable. (See, e.g., Ex. 69 at CNY00023748; Ex. 61; see also, e.g., Tr. 439:16-19 (MOPD Commissioner Calise testifying that a shelter would be “usable” if it permitted a person with a disability to enter but lacks a bathroom that person could use)).
81. Furthermore, nothing in the City’s written emergency plans requires any of the City’s evacuation centers or shelters to be usable, or even defines the term. Nor do the plans provide any guidance for making evacuation centers and shelters usable. Therefore, there is no way to know whether or how the City will attempt to make inaccessible shelters usable for people with disabilities in the future.
82. The City’s sheltering plans also provide little or no guidance for setting up shelters to ensure that people with disabilities can navigate within them. The plans do not, for example, require that accessibility be considered in designating the rooms to be used for registration, dormitories, and other shelter spaces. Nor do they require that the pathways to and from the accessible entrance (if there is one), the bathroom, and the main sheltering areas be navigable by people with mobility disabilities (although the checklist given to shelter operators does direct them to determine whether such pathways are “clearly marked, unobstructed, and without stairs” (Ex. 472)). Both the plan for setting up general shelters and the plan for SMNSs, however, do provide guidelines designed to allow people in wheelchairs to access the cots used in the dormitories. (See Ex. 14, at CNY001441 (providing that cots at SMNSs should be set up
41

with “[s]pace to pull a wheelchair up to the cot”); Ex. 16, at CNY001266 (instructing that general shelter operators should “[a]llocate additional space around cots for shelterees who use wheelchairs or walkers, or who need extra room to get on and off the cots”)).
83. City officials testified that if a shelter was not sufficiently accessible, the City would provide accessible transportation to another shelter that was. (See Calise Decl. ¶ 21; Van Pelt Decl. ¶ 14; Tr. 328:8-9). But there is nothing in the City’s sheltering plan that requires this. The plan states that once evacuees arrive at an evacuation center, they will “either be assigned to a Hurricane Shelter in the same facility or transported to an associated Hurricane Shelter or Special Medical Needs Shelter by bus.” (Ex. 7, at CNY000357). It does not, however, provide that the bus itself will be accessible to people with disabilities. In addition, the City has not assessed how many people might require accessible transportation between evacuation centers and shelters — and, by extension, whether it would be able to provide such transportation. (See McKinney Dep. Vol. I 81:3-8).
b. The Programmatic Accessibility of Shelters 84. In addition to ensuring that the shelter facilities are physically accessible, there
are several other accommodations that may be required to ensure that people with disabilities are able to access sheltering. First, people with cognitive or sensory disabilities may require accommodations in order to effectively communicate with shelter staff, receive information, and navigate a shelter. (See Kailes Decl. ¶ 70; Ex. 65, at 126, 130; Ex. 153, at P001989). For example, those who are blind or have low vision might require information to be written in Braille or read aloud; those who are deaf may require a sign language interpreter or written communications; people with cognitive disabilities may require that information be presented slowly or in simple language. (See Ex. 65, at CNY020343, CNY020347; Ex. 153, at P001980-
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81, P001989; Conner Decl. ¶ 20 (blind class member testifying that she would “need accessible formats of any printed materials in an emergency shelter . . . . in Braille, in audio format, read aloud to [her], or electronically”); Curry Decl. ¶¶ 32-33 (testimony of class member who is deaf and has low vision that she would need “assistance with orientation” as well as assistance reading any printed materials and completing any paperwork)). Therefore, emergency planning experts emphasize the importance of both training shelter staff to communicate with people with disabilities and ensuring that emergency plans direct and make possible the provision of information via multiple modes of communication. (See, e.g., Kailes Decl. ¶ 69; Ex. 65, at CNY020343, CNY020345; Ex. 153, at P001989).
85. The City provides shelter staff with some training and guidance on communicating with people with disabilities. For example, as part of their training, shelter operators are taught that in order to accommodate people with disabilities, information should be provided in multiple formats. (Ex. 501, at CNY014100). In addition, the City has developed a guide for shelter staff primarily focused on effective communication with people with disabilities. (Belisle Decl. ¶ 46; Ex. 48). And at the time of trial, OEM was developing a new video training course focused on interacting with people with disabilities, scheduled to be available to all City employees involved in the emergency sheltering system by the 2013 hurricane season. (Van Pelt Decl. ¶ 33; Belisle Decl. ¶ 45).
86. The sheltering plans, however, do not mention accessible communication, let alone provide for accommodations, such as sign language interpreters or common signage in Braille, to ensure that people with disabilities are able to communicate and understand the information provided at shelters. (See, e.g., Tr. 338:17-21). Although the MOPD website stated that those who required sign language interpretation while in an evacuation center or shelter
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during Hurricane Sandy would be provided an interpreter (see, e.g., Ex. 359, at CNY00021262), Belisle testified that the City does not, in fact, provide interpreters at shelters (Tr. 338:20-21). The package of materials given to shelter operators does include an emergency communications board that contains pictures and symbols related to emergency situations and basic needs to help individuals who have difficulty communicating share their needs with shelter staff. (See Belisle Decl. ¶ 47; Van Pelt Decl. ¶ 30; see also Calise Decl. ¶¶ 13-15 (testifying that the boards were at the registration tables of five shelters he visited just before Hurricane Sandy); McLachlan Decl. ¶ 11 (testifying that there were communication boards available at the registration table at the SMNS at which she worked during Hurricane Sandy)). The board was not entered into evidence, however, so it is not clear what it contains or how helpful (or not) it might be.
87. Regardless, the City does not provide — or plan for — any other accommodations. Instead, the City relies on people with disabilities to find ways of communicating their needs without assistance. For example, the City’s Ready New York guide to developing a personal emergency plan advises individuals with hearing disabilities to “practice communicating [their] needs through gestures, note cards, text messages, or other means.” (Ex. 3, at CNY001089; see also Ex. 1, at CNY000039 (similar); Ex. 3, at CNY001089 (advising those preparing emergency plans to “plan how [they] will talk to . . . emergency workers in an emergency”)).
88. Some people with disabilities depend on service animals or caregivers to assist them and keep them safe and may only remain safe and independent in a shelter that permits them to remain with their service animal or caregiver. (See Kailes Decl. ¶¶ 69, 77; Ex. 65, at 126, 129; Ex. 153, at P001987-88). The City’s plans provide that people with disabilities may bring service animals to shelters and evacuation centers. (See, e.g., Ex. 12, at CNY000663; Ex.
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14, at CNY001484). The plans give conflicting guidance on whether people with disabilities will be permitted to stay in the same shelter with their caregivers; the plans suggest that people with disabilities may be placed in the same general shelter as their caregiver, but that caregivers may not be permitted to stay in SMNSs. (Compare Ex. 12, at CNY000664 (stating that people with disabilities may bring their “home health aide or family member” with them to a general shelter but not to an SMNS); with Ex. 14, at CNY001440 (providing that operators of SMNSs should “[m]ake every effort to see that each shelteree’s companions or caregivers also have space in the [same] Dormitory Area”)).
89. People with disabilities often depend on access to electricity. (See Kailes Decl. ¶ 70; Ryan Decl. ¶ 30; Ex. 65, at CNY020347-48; Ex. 153, at P001980). For example, some people depend on electricity to power life-sustaining equipment, such as ventilators. (Ex. 65, at CNY020347-48). And people with mobility disabilities often rely on power wheelchairs or scooters that need to be recharged. (See Kailes Decl. ¶ 70; Ex. 153, at P001980). In addition, some shelters are only accessible if the elevator is working, and thus if the shelter has power. (See Trapani Decl. ¶¶ 57, 61; Dooha Decl. ¶ 58). For many people with disabilities, then, their ability to stay in a shelter depends upon the availability of electricity at the shelter. (See Kailes Decl. ¶ 70 (“Another essential element that ensures people with certain disabilities are included in general population shelters is the ability to access power (when necessary via generators) for: charging power wheelchairs, scooters and other essential devices, and refrigerating certain medications.”); Ex. 153, at P001978 (guidance from the Federal Emergency Management Agency (“FEMA”) stating that emergency plans “should include strategies to provide power for services that require a back-up power system in an emergency or disaster”)).
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90. The City’s shelter plans do not include strategies to provide back-up power generators at shelters or to otherwise ensure that electricity will be available at shelters for those who depend on it. (See Tr. 340:11-15 (Belisle testifying that nothing in the City’s written emergency plans “addresses the issue of providing power for people who use medical devices powered by electricity”)). Every SMNS, however, either has a back-up generator on site or has the capacity to quickly connect one of the generators the City has purchased for this purpose. (See Davis Decl. ¶ 110; Maniotis Decl. ¶ 24; Tr. 340:7-10). The City does own some back-up generators (see Tr. 621:9-17), and during Hurricane Sandy, it was able to procure over 200 more (McKinney Decl. ¶ 60; see also Jenkins Decl. ¶ 13 (testifying that during Hurricane Sandy, the City was able to “set up emergency contracts with three vendors that provided large generators”)). And “quick-connects” — connections that allow for the rapid installation of generators during an emergency — are installed at a small number of shelters. (See Davis Decl. ¶ 111 & n.4; Jenkins Decl. ¶ 40). During Hurricane Sandy, however, most evacuation centers lacked generators and some, therefore, at times, lacked power. (See Ex. 116, at 169:5-170:3).
91. At the time of trial, the City was in the midst of conducting an assessment of “critical infrastructure sites,” including evacuation centers and shelters, to survey and record the requirements of each facility for installing back-up generators, so that these requirements do not have to be assessed during an emergency. (Jenkins Decl. ¶ 40). The City has also requested funding from the federal government to install quick-connects in additional shelters and evacuation centers, as well as other critical sites. (Jenkins Decl. ¶ 41; Tr. 626:4-627:9).
92. As explained in a FEMA guide to planning for the integration of people with disabilities in general population shelters, “[d]espite best efforts and advance planning,” some people with disabilities will arrive at emergency shelters without the medical equipment,
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medications, or food they need. (Ex. 153, at P001978; see also Kailes Decl. ¶ 75 (“For many people, it is unrealistic that they will be able to bring with them the equipment or supplies they need to stay independent and healthy.”); Buckner Decl. ¶ 12 (class member testifying that if she were away from home when an emergency occurred, she “would not have [certain] supplies that are essential for [her] survival”)). FEMA therefore advises that emergency planners include in emergency plans “a process for locating, purchasing, and storing as much of the supplies and equipment as possible and practical to meet the needs of” shelter residents with special needs and that, prior to an emergency, planners “[d]evelop provider agreements with the private sector to ensure that necessary equipment and supplies that have not been purchased and stored will be available during an emergency or disaster.” (Ex. 153, at P001978; see also Blanck Decl. ¶ 43 (testifying that disaster planning “includes the need to ensure that shelters, when opened, contain life-sustaining equipment and other means that people with disabilities need, which may include . . . emergency medications, and durable medical equipment such as wheelchairs, walkers, and crutches”)). Among other things, FEMA recommends that wheelchairs, wheelchair battery chargers, accessible cots, and nutritional drinks (for people with diabetes) be available at general population shelters. (Ex. 153, at P02076-82; see Kailes Decl. ¶ 76).
93. The City maintains a stockpile designed to provide the shelter system with the “basic supplies” required to house and care for 70,000 people for seven days. (Ex. 43, at CNY00023926). These supplies are pre-configured into sets to be delivered to evacuation centers, general shelters, and SMNSs in the event of an emergency. (See Ex. 43, at CNY00023930, CNY00023936-39; Ex. 250, at CNY00024561; Tr. 637:24-638:3). For emergencies with advance warning, supplies are sent to each shelter in advance. (See Ex. 8, at CNY018277; Ex. 249, at CNY00025688). The company with which the City contracts to deliver
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stockpiled goods to shelters is obligated to do so within forty-eight hours of a City request. (Tr. 640:9-16). Therefore, in disasters that occur without warning, or where a shelter requires additional supplies from the stockpile, these supplies may be deployed within two days. (See id. at 638:17-24, 640:9-16; Van Pelt Decl. ¶ 41).
94. While the supplies provided to SMNSs include some items to accommodate people with disabilities, such as wheelchairs, accessible cots, and diabetic testing kits, the City’s emergency plans do not call for such items to be provided to general shelters. (See Ex. 43, at CNY00023928-29, CNY00023936-39; Jenkins Decl. ¶ 29). Nevertheless, it seems that during Hurricane Sandy, at least some general shelters had accessible cots available. (See Villari Decl. 19 (testifying that special needs cots were available at the general shelter housed in P.S. 217)); Trapani Decl. ¶ 59 (testifying that she observed that the general shelter located at P.S. 166 had both regular and special needs cots). But see Torres Decl. ¶ 42 (class member Melba Torres testifying that the shelter where she stayed during Hurricane Irene lacked accessible cots)).
95. Robert D. Van Pelt, the Director of Human Services at OEM, testified that this year, the City plans to purchase double the supplies typically stockpiled for SMNSs, so that these supplies will also be available to any general shelters that need them. (Tr. 839:14-19). In addition, he testified that the City is purchasing additional items to accommodate people with special needs, such as “wheelchairs of different kinds” and “toilet seats that are raised and have grips.” (Id. at 839:20-24).
96. There are several items people with disabilities might require that are not stockpiled by the City. For example, the City does not stockpile power wheelchairs, chargers for such wheelchairs, walkers, ventilators, or prescription medications. (See Jenkins Decl. ¶ 30; Tr. 619:3-6, 619:17-24). Nor does the City have any memoranda of understanding with
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organizations that might be able to provide these items in the event of an emergency. (See Tr. 619:25-620:11; 621:3-6). The City does have a requisition process through which it can obtain items that are not stockpiled. (Jenkins Decl. ¶ 30; Tr. 619:10-12, 640:24-641:11, 641:23-643:7). It is unclear, however, how long this process takes (see Tr. 619:7-16), or which items the City would be willing to requisition. But during trial, Plaintiffs did not point to a single instance during Hurricane Sandy or otherwise where the City failed to provide a person with a disability with supplies he or she needed; nor did they produce any evidence that, more generally, the requisition process is insufficient to meet the needs of people with disabilities.
97. Although the record indicates that at least some of the supplies required by people with disabilities are available at — or can, if needed, be procured by — the City’s shelters, the City warns otherwise in its communications with the public. For example, one Ready New York guide cautions that “Shelters DO NOT have special equipment (e.g., oxygen, mobility aids, and batteries). Be prepared to bring your own.” (Ex. 3, at CNY001092; see also Ex. 51 (311 call script for Hurricane Irene stating that evacuation centers “are not equipped to provide food for special diets”); Ex. 60 (311 call script for Hurricane Sandy stating “[i]f you need oxygen tanks or other medical equipment, bring it with you to the evacuation center,” and “refrigeration for medication will NOT be provided at evacuation centers”)).
98. These warnings are likely to discourage people with disabilities from evacuating to a shelter in the first instance. (See Kailes Decl. ¶ 72 (stating that the issuance of such warnings “will likely result in people being reluctant and fearful to evacuate, and can have serious unintended life-threatening consequences,” because people with disabilities will “believe that if they . . . cannot get what they need to survive and maintain their health, safety and independence once they get to a shelter, then they will be better off ignoring evacuation
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instructions”); Bell Decl. ¶ 5 (class member testifying that he “would be reluctant to go [to a shelter] if [he] did not know . . . if [he] could get the help, medicine, and food” he needs); Ex. 65, at CNY020312 (“As seen in east coast hurricanes, some people with disabilities do not evacuate if they believe that shelters are not ready for them.”)).
c. The Shelter Survey 99. In order to determine the accessibility of the facilities it uses as shelters, the City
included several questions about accessibility in a survey distributed online to all DOE facilities in October 2012. (See 2012 Shelter Survey, Ex. 47; Van Pelt Decl. ¶ 19; Maniotis Decl. ¶ 38; Belisle Decl. ¶ 50; Tr. 328:13-16 (Belisle testimony)). By the time of trial, nearly all of the schools in the DOE system had completed the survey. (See Van Pelt Decl. ¶ 19; Belisle Decl. ¶¶ 50, 51; Tr. 328:17-19).
100. The survey was completed by the custodial engineers at each facility. (See Van Pelt Decl. ¶ 21; Belisle Decl. ¶ 49). These employees were given an instruction sheet with the survey, but were not given any specialized training. (Tr. 331:22-24; 332:2-6). Although Belisle testified that no specialized training was needed to administer the survey (Tr. 332:2-6), Plaintiffs’ expert testified that the custodial engineers were inadequately trained to complete the survey, which was “very likely to lead to unreliable survey data.” (Kailes Decl. ¶ 81).
101. The survey directed the collection of information such as the measurements of facility entrances, the availability (or lack thereof) of wheelchair ramps, the measurements of facility elevators, and the presence (or absence) of Braille and visual cues in the facility elevators. (Ex. 47, at CNY019647-48, CNY019657). It did not, however, request measurements for bathrooms. (See Ex. 47, at CNY019665-66). Instead, it stated that “a bathroom is ADA accessible if it is marked with the universal wheelchair symbol.” (Id. at CNY019665). The
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presence of such a symbol, however, does not necessarily mean a bathroom is actually accessible. (See Tr. 389:13-20 (Belisle testifying that “[w]e have . . . learned that there are bathrooms in schools that are marked with accessible symbols” that are not, in fact, accessible); id. 207:13-16; Kailes Decl. ¶ 82). In fact, during Hurricane Sandy, MOPD Commissioner Calise visited a shelter that had a restroom that was inaccessible, despite being marked with a universal access sign. (Tr. 450:19-451:5).
102. To remedy this problem, and to verify the survey data more generally, the City has begun to conduct site visits of the facilities surveyed. (See Davis Decl ¶ 104; Tr. 384:16385:3). During these visits, teams from OEM, trained by Belisle, assess the accessibility of the facility by, for example, measuring entrances and restrooms. (See Tr. 395:6-21, 835:16-21; Davis Decl. ¶ 105; Van Pelt Decl. ¶ 21). Van Pelt testified that, as of the date of the trial, teams from OEM had visited all of the facilities used as evacuation centers in Zone A. (Tr. 835:22-25). In addition, OEM is working with MOPD to recruit volunteers with mobility disabilities to participate in additional site visits. (Van Pelt Decl. ¶ 21).
103. Although the City had initially planned to analyze the data from the surveys and site visits by February 28, 2013 (Ex. 483, at CNY 020085), it had not done so at the time of trial in March 2013. (See Tr. 328:25-329:1; 384:18-21). Once analyzed, the City intends to use the data to create a “corrective action plan.” (Ex. 483, at CNY 020085). It has not, however, done so yet. In addition, the City does not have a plan for implementing any corrective action needed to ensure the shelter system is accessible or for funding such action. Belisle testified that there is a proposal to allocate $10 million dollars to the project, but that proposal has not been approved and there is no evidence that it will be. (Tr. 333:23-334:10).
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d. Refuges of Last Resort 104. For coastal storms (that is, emergencies for which there is advanced notice), the
City also provides refuges of last resort, facilities intended to provide a safe place for people who are stranded on the street and unable to reach a regular shelter before the storm hits. (See Ex. 6, at CNY000147). These refuges may operate without food, water, utilities, or other City assistance until the storm passes. (Id.). Like regular shelters, refuges of last resort are typically located in DOE school facilities. (Ex. 6, at CNY000149).
105. OEM maintains a list of facilities that could be chosen as refuges of last resort. (See id. at CNY000147-49). Facilities are chosen based on four criteria: (1) location within inundation zones; (2) proximity to major highways and thoroughfares; (3) structural ability to withstand storm surges; and (4) the number of floors above the rise of the greatest expected storm surge. (Id. at CNY000149). As a storm approaches, the City chooses the facilities that will be opened during that storm and disseminates the list to the media. (Id. at CNY000148). Facilities do not need to be accessible to people with disabilities to be chosen as refuges of last resort. (See McKinney Dep. Vol. I, at 127:14-16).
106. Because refuges of last resort are located in schools, the facility survey described above will provide information about the accessibility (or lack thereof) of these refuges. (See Tr. 344:5-8).
e. Sheltering in Place 107. In its outreach materials, the City advises residents that, in the event of an
emergency, they may need to shelter in place — that is, remain where they are. (See, e.g., Ex. 1, at CNY000041; Ex. 2, at CNY000008; Ex. 4A; Maniotis Dep. 55:24-57:2). Given this possibility, the City encourages residents to “[k]eep enough supplies in your home to survive for
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at least three days.” (Ex. 4A; see also Ex. 1, at CNY000033 (“Every New Yorker should plan to be self-sufficient for several days.”)).
108. As Defendants’ expert explained, this guidance “serves to remind individuals that assistance may be slow to arrive due to the existence of debris and the massive response needs after a large-scale disaster.” (Davis Decl. ¶ 45). Additionally, it “helps individuals who cannot realistically self-sustain for that period to acknowledge that reality in advance of an event and to incorporate additionally contingencies into their personal emergency plan to account for that reality.” (Id.). The seventy-two hour figure is consistent with advice from FEMA and the Red Cross that people should be prepared to shelter in place for at least seventy-two hours after an emergency. (See id.; Tr. 211:14-17, 261:5-9).
109. Plaintiffs’ experts characterized the City’s guidance as “evidence that the City assumes people with disabilities can shelter in place for 72 hours.” (Kailes Decl. ¶ 90; see Blanck Decl. ¶ 85 (“New York City’s emergency plans assume that individuals must be prepared to survive after an emergency in place for up to three days.”)). Such an assumption, these experts testified, is problematic because some people with special needs cannot survive for that long without electricity, medication, and/or assistance from others. (See Blanck Decl. ¶ 85; Kailes Decl. ¶ 89).
110. But the City’s plans do not assume that people with disabilities (or anyone else) can or will shelter in place after an emergency. The Coastal Storm Plan, for example, provides an evacuation plan designed to ensure that all those in the affected area are evacuated before an emergency strikes. (See Ex. 8, at CNY018277). Similarly, the Area Evacuation Plan provides for evacuation as an initial response to an emergency. (See Ex. 245A, at 11). Thus, the City’s guidance that people, including those with disabilities, prepare to shelter in place is simply that:
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guidance that people should be prepared for the possibility that assistance within the first seventy-two hours will not be available. F. Power Outages
111. As noted above, people with disabilities are particularly vulnerable to power outages, as they often rely on equipment that requires electricity. (See Trapani Decl. ¶ 27 (testifying that people with disabilities often “rely on electricity daily to power their wheelchairs, run life sustaining equipment like oxygen concentrators, and keep temperature sensitive medicines cool”); id. (“Without some preparedness for the extraordinary power needs of people with disabilities, these people are less able to remain safe and healthy during a disaster.”); see also Kailes Decl. ¶ 64; Ryan Decl. ¶ 30; Ex. 65, at 130-31; Ex. 153, at P001980).
112. The City maintains a Power Disruption Plan to coordinate and guide the City’s response to power outages. (See Ex. 19). The Plan provides that the Consolidated Edison Company of New York (“Con Ed”), which provides electricity for nearly all of New York City (id. at CNY001667), must compile a list of its customers who rely on electricity for lifesupporting medical equipment or for whom the loss of electricity would cause a serious medical hardship. (See id. at CNY001693; see also Ex. 112 (Con Ed brochure allowing customers to inform Con Ed that they are supported by electrically powered life-sustaining equipment)).8 The plan provides that, in the event of a power outage (or, if possible, in advance of one), Con Ed will attempt to contact the customers on the list by telephone and advise them to use back-up equipment or to go to the nearest hospital emergency room. (See Ex. 19, at CNY001693-94; Wahlig Decl. ¶ 22). If Con Ed is unable to reach a customer that relies on electrically powered

8

State law requires that electric companies maintain such a list. See 16 N.Y.C.R.R.

§ 105.4(b)(5).

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life-sustaining equipment, the NYPD will dispatch an officer to make sure that the person is safe. (Ex. 19, at CNY001694; Wahlig Decl. ¶¶ 22-23).
113. Many people with disabilities rely on electricity-powered equipment that is integral to their ability to remain healthy, safe, and mobile, but is not technically life-supporting. (See Kailes Decl. ¶ 64 (“[T]he definition of ‘life sustaining equipment’ is quite narrow, and would not encompass the many thousands of people who are not on life-sustaining equipment but who nevertheless rely on electricity for mobility (whether for mobility devices such as a power wheelchair, or in order to use the elevator) or who have periodic use of breathing devices and oxygen, or to store temperature sensitive medication.”)). Although the Power Disruption Plan recognizes that these people may be particularly affected by a power outage (see Ex. 19, at CNY001670), there is nothing in the plan, or in any other City plan, about accommodating the needs of these people. (See Tr. 340:11-15 (Belisle testifying that there is nothing in the City’s emergency plans that addresses the provision of power to people with disabilities who require electricity to power their medical devices); Kailes Decl. ¶¶ 66-67; see also Tr. 792:20-23 (FDNY Chief Villani testifying that there is no Fire Department plan for evacuating people with disabilities in the case of a power outage)).
114. During Hurricane Sandy, a vast swath of the City lost power. The day after the hurricane made landfall, over 700,000 people were without power. (See Ex. 81, at CNY00022469). Nearly 40,000 customers remained without power over a week later. (See Ex. 93, at CNY00022117). MOPD Commissioner Calise testified that, after Hurricane Sandy, he heard that some people had problems because their medical equipment had run out of power. (See Tr. 445:11-14).
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115. Class member Joyce Delarosa testified that although she has informed Con Ed that she relies on an electricity-powered oxygen machine, Con Ed did not notify her in advance of Hurricane Sandy that it would be shutting down power in her neighborhood. (Delarosa Decl. ¶¶ 20, 40). Because of the power outage, she was unable to use her oxygen machine. (Id. ¶¶ 5463). As a result, her health deteriorated and she was in serious pain, leading her to require emergency medical attention for oxygen deprivation. (Id. ¶¶ 63-64, 71).
116. Class member Melba Torres relies on electricity to power her wheelchair, the air mattress she uses to reduce the pain caused by a curve in her spine, and the lift she uses to get in and out of bed. (Torres Decl. ¶¶ 84-86). Torres testified that, because of the power outage during Hurricane Sandy, she was unable to evacuate her building and was unable to inflate her bed for a week, leaving her in severe pain. (Id. at ¶ 85).
117. In the aftermath of Hurricane Sandy, the City established charging centers in areas that remained without power. (Murray Decl. ¶ 40). But there is nothing in the City’s emergency plans that mandates such stations.
118. Days after the hurricane, many residents still lacked power, and the City was concerned that people might be trapped in their homes. (See Murray Decl. ¶¶ 21-22; Tr. 716:616). But the City’s emergency plans did not account for this situation — at the time of Hurricane Sandy (and at the time of trial), the City had no plan for canvassing after a power outage or other emergency. (See Tr. 355:14-18; 714:16-25; McKinney Dep. Vol. III, at 22:8-17).
119. The City’s first response was to coordinate a volunteer effort to canvas apartment buildings as well as single family homes in areas without power. (See Murray Decl. ¶¶ 15, 21; Ex. 477). That effort began on November 3, 2012 — five days after Hurricane Sandy. (See id. ¶ 21). Volunteers distributed food, water, and blankets and identified those who needed
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assistance. (See id. ¶¶ 23, 30-32). Between November 3 and November 5, over 1,000 volunteers managed to reach about 12,000 structures in four boroughs. (Id. ¶ 21-22). The City did not, however, track where these volunteers had been, and it had no way of knowing which buildings had been reached. (See Tr. 719:15-720:23).
120. Fearing, therefore, that these efforts were insufficient, between November 9 and November 14, 2012, the City undertook a more systematic canvassing operation of high-rise buildings conducted by teams composed of local and federal health and emergency personnel. (See Kass Decl. ¶¶ 10-12, 19; McKinney Decl. ¶ 62; Ex. 116, at 73:8-12; Tr. 719:12-721:5, 721:19-722:7). These teams assessed and attempted to fulfill the needs of those they reached — by providing food, water, medical attention, prescription medication, and, where necessary, evacuation assistance. (See Kass Decl. ¶¶ 12, 15-17). In six days of canvassing, the teams knocked on nearly 37,000 doors, approximately 13,000 of which were occupied; received nearly 1,000 food and water requests; and assisted with 35 medical evacuations. (Id. ¶ 19).
121. On November 24, 2012 — nearly a month after the hurricane — the City began canvassing buildings that were six stories or lower in which people remained without heat or electricity. (See Belisle Decl. ¶ 67; Manahan Decl. ¶ 24; McKinney Decl. ¶ 62; Tr. 346:3-6). The City worked with the National Guard to provide residents with food, blankets, and space heaters as well as to encourage them to relocate to a hotel, paid for by the City. (See Belisle Decl. ¶ 67; Manahan Decl. ¶ 24).
122. As noted above, none of these canvassing efforts was undertaken pursuant to a City emergency plan, as the City had no such plan. (See Tr. 355:14-18; 714:16-25; McKinney Dep. Vol. III, at 22:8-17). Without such a plan, although the City was able to marshal substantial resources and reach a large number of people, its efforts were haphazard and belated. Its first
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systematic effort to reach those without power began ten days after Hurricane Sandy. (See McKinney Decl. ¶ 62). And even that effort suffered from a lack of guidance that could have been remedied by advance planning. For example, the canvassing teams were directed to record information such as the need for food and water. (See Tr. 718:21-719:1; Ex. 516). But halfway through the canvassing operation, there was a change of management structure, and the new teams did not continue to gather information in a systematic way. (See Tr. 718:2-18).
123. The City intends to develop a canvassing plan, but at least as of the time of trial had not yet done so. (See McKinney Decl. ¶ 32 (testifying that a plan for canvassing after an emergency will likely be incorporated into the City’s emergency plans in the future); McKinney Dep. Vol. III, at 57:10-22 (testifying that the City intends to develop a canvassing plan, but as of yet, there is no such plan “underway”)). G. Recovery Operations
124. There is also evidence in the record supporting Plaintiffs’ claims about the recovery process after an emergency. The City has several plans relating to recovery after an emergency, including plans for the provision of both life-sustaining commodities, such as food and water, as well as information, assistance, and services. (See, e.g., Exs. 24, 25, 30, 31, 273). The City also has a Debris Management Plan to guide debris clearance, removal, and disposal after an emergency. (See Ex. 17, at CNY000696). Finally, at the time that Hurricane Sandy struck, the City was considering the formulation of a plan concerning interim housing following a disaster. After the hurricane, the City established an office to design and implement a housing recovery plan for those affected by the disaster. The Court will describe each in turn.
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a. Resource Provision 125. The City’s primary plan for distributing life-sustaining commodities after an
emergency is the Commodities Distribution Point Plan. (Ex. 24). This plan provides that, after a large-scale emergency, the City may set up commodity distribution points to distribute, among other things, food, water, and ice for medication that must be kept cold. (See id. at CNY018522, CNY018544). It requires that the distribution sites be accessible to people with mobility impairments and that the sites be clear of debris. (See id. at CNY018542; Ex. 25, at CNY018609). There is, however, nothing in the plan to ensure that communications at the commodity distribution points are accessible to people with disabilities.
126. The City opened several commodity distribution points after Hurricane Sandy. (See, e.g., Ex. 85, at CNY00022385; Ex. 86, at CNY0002234-35; Ex. 89, at CNY00022271). Putting aside those people who were unable to reach the distribution points because, for example, they had no way to leave their apartments in the first place, there was no evidence presented at trial that people with disabilities were unable to access the services these centers provided.
127. The City also has a Disaster Assistance Service Center plan, which provides that, after a disaster, the City may open Disaster Assistance Service Centers to provide information, assistance, and services from federal, state, and local agencies as well as from private organizations. (See Ex. 30, at CNY015216; Maniotis Decl. ¶¶ 27-30). Such centers provide generally applicable services — including the provision of telephone and internet access, financial assistance, and relocation assistance — as well as services specifically relevant to people with special needs. (See Ex. 30, at CNY015226-30). For example, they provide information regarding the replacement of lost durable medical equipment and referrals for medical consultations. (See id.). The plan governing the Disaster Assistance Service Centers
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directs that they are to be located in a facility that is “Americans with Disabilities Act (ADA) compliant or modifiable to be compliant.” (See id. at CNY015234). There is, however, nothing in the plan to ensure that communications within these centers are accessible to people with disabilities.
128. The City opened several Disaster Assistance Service Centers (in some cases, called Restoration Centers) after Hurricane Sandy. (See, e.g., Ex. 85, at CNY00022385; Ex. 93, at CNY00022116; Ex. 94, at CNY00022074). MOPD Commissioner Calise testified that he visited these centers to make sure that they were accessible to people with disabilities and to inform the centers’ staff that there was a video sign language interpretation system they could use. (Calise Decl. ¶ 32). Again, putting aside those who were unable to leave their buildings, there was no evidence presented at trial that people with disabilities were unable to access the services that these Disaster Assistance Service Centers provided.
129. Finally, after Hurricane Sandy, the City provided substantial assistance to those who required prescription medication. For example, volunteers handed out fliers listing pharmacies that were open and could expedite prescription requests. (See Murray Decl. ¶¶ 4445; see Ex. 477, at CNY00025439-41; Tr. 693:22-694:8). Some volunteers even contacted pharmacies on behalf of those who required medication refills. (See Murray Decl. ¶ 45). The City also partnered with the State Department of Health to provide a mobile pharmacy in areas affected by the hurricane in which pharmacies were not yet reopened. (See id. ¶ 46). These actions were not, however, taken pursuant to any emergency plan. The City does not, in fact, have any plan directing the provision of prescription medication assistance in the event of an emergency.
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b. Debris Removal 130. People with disabilities are uniquely affected by the debris that may accumulate
after a disaster. (See Ex. 65, at CNY020369-70; Blanck Decl. ¶¶ 44, 94). People with mobility disabilities or visual or cognitive impairments, for example, may not be able to navigate streets and sidewalks obstructed with debris. (See Ex. 65, at CNY020369-70; Bell Decl. ¶ 26; Buckner Decl. ¶ 27; Kailes Decl. ¶ 32).
131. The City’s Debris Management Plan provides for debris clearance and removal in phases. (See Ex. 17 at CNY000699). The initial phase of the Plan calls for clearing debris from roadways, prioritizing “[p]rimary routes and streets that provide access to hospitals, shelters, police, fire stations and other facilities providing vital public services”; then, “[r]outes and streets that provide access to components of the . . . utility systems that are vital to the restoration of essential utility services”; and finally, “[r]esidential streets and access ways.” (Id. at CNY000711-13). The next phase of the Plan involves removing the debris that was cleared to the side of the road during the first phase and collecting debris from neighborhoods affected by the emergency. (See id. at CNY000714).
132. While the Debris Management Plan provides that the City shall “coordinate efforts” to address the needs of people with disabilities, it does not provide any guidance as to how their needs will be taken into account. (See Ex. 17, at CNY000745). Plaintiffs’ experts testified that this cursory mention of people with special needs was insufficient to ensure that the needs of people with disabilities were met. (See Blanck Decl. ¶ 83; Kailes Decl. ¶ 114).
133. Class member Jen Halbert, who uses a wheelchair, testified that after a blizzard in 2010, the snow on the sidewalk in front of her building was not removed, and therefore she could not leave her apartment building for a week. (Halbert Decl. ¶ 21). Similarly, class member Jean
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Ryan, who also uses a wheelchair, testified that a few years ago, she stayed home for over a month due to the City’s failure to clear snow from in front of her building. (Ryan Decl. ¶¶ 3132). Plaintiffs, however, provided no evidence that anyone with disabilities was hindered by debris in the aftermath of either Hurricane Irene or Hurricane Sandy.
c. Interim Housing 134. Special Needs Coordinator Belisle testified that an important component of the
City’s emergency planning is to provide interim housing after a disaster. (Tr. 344:23-345:2). Before Hurricane Sandy, the City participated in the development of a Regional Disaster Recovery Housing Plan. (See Ex. 248; McKinney Decl. ¶ 70). It is not clear, however, whether or to what extent this plan was ever adopted by the City. (See, e.g., McKinney Decl. ¶ 70 (testifying that the Regional Disaster Recovery Housing Plan is an “example of planning that was interrupted by” Hurricane Sandy)).
135. Approximately five years ago, the City began to develop a removable, reusable housing unit that could be installed quickly to provide interim housing in the aftermath of a disaster. (See McKinney Decl. ¶ 70; Ex. 37; Tr. 345:13-21). The unit is designed to be fully compliant with the ADA. (See McKinney Decl. ¶ 70; Ex. 37, at CNY006996). A series of prototype units were being installed next to OEM’s Cadman Plaza headquarters in Brooklyn at the time of trial. (See McKinney Decl. ¶ 70). OEM Deputy Commissioner McKinney testified that he expected them to be operational by fall of 2013. (Id.).
136. As this interim housing was not operational at the time of trial, it was, of course, not available during Hurricane Sandy. (See Tr. 766:5-10). In fact, at the time the hurricane struck, the City had no operational plan to provide interim housing — that is, housing beyond
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that provided by the shelter system — for people with disabilities, or anyone else for that matter, following an emergency. (See Tr. 345:3-12, 764:1-3).
137. In the aftermath of Hurricane Sandy, Mayor Bloomberg created an Office of Housing Recovery Operations to design and implement a housing recovery plan for those affected by the hurricane. (See Gair Decl. ¶ 1; Ex. 258; Ex. 310, at CNY00023834). Among other things, the Office of Housing Recovery Operations helped to ensure that people with disabilities had livable housing after Hurricane Sandy. For example, it convinced FEMA to include repairs of accessibility features, such as ramps, in the kinds of home repairs it would fund through FEMA’s Rapid Repair program. (Gair Decl. ¶ 13).
138. In addition, the City provided accessible hotel rooms to people with special needs who required interim housing through a program that provided hotel rooms to those displaced after Hurricane Sandy. (See id. ¶ 21). Individuals could request a hotel room by calling 311, by visiting a Restoration Center — a center coordinating recovery services — or through a referral from those who were canvassing after the hurricane. (See Ex. 251, at CNY00025531; Weissman Decl. ¶ 22). There is no evidence that people with disabilities were unable to enter the City’s hotel program or that they were not given accessible hotel rooms. (See Davis Decl. ¶ 135 (testifying that the program “includes a number of features that support the needs of people with disabilities including . . . multiple access points” and the availability of “accessible hotel rooms”)). In fact, several people who were given interim housing through the City hotel program were identified as having a mobility disability. (See Gair Decl. ¶ 20).
139. With respect to longer-term solutions, at the time of trial the Office of Housing Recovery Operations was developing a plan to use a $20 million grant the City had received for housing recovery. (See Tr. 770:5-23).
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140. Although there is a draft Concept of Operations guiding the Office of Housing Recovery Operations, its purpose is limited to providing guidance on the internal operations of the Office with respect to Hurricane Sandy. (See Tr. 764:4-10). It is not, and is not intended to be, a general housing recovery plan. (See id.). At the time of trial, therefore, the City still lacked an emergency plan for housing recovery after a disaster. H. Education and Outreach
141. In addition to the foregoing plans concerning the response to emergencies, the City has a substantial outreach program, designed to encourage disaster preparedness and volunteerism. (See Schaffer Decl. ¶ 2). This program includes training volunteers to educate their communities about emergency preparedness and to assist with the City’s emergency response; bringing together the leaders of community organizations to discuss and promote emergency preparedness; giving presentations throughout the City; and publishing emergency preparedness brochures. (See id. ¶¶ 14, 26, 28, 30).
142. The outreach and education materials distributed by the City emphasize personal preparedness. (See Exs. 1-4A; Tr. 387:7-9, 570:1-8; Trapani Decl. ¶ 5). In particular, the City publishes a series of emergency preparedness guides titled Ready New York, which are designed to assist people in developing their own personal emergency plans. (See Exs. 1-4A; Ex 12, at CNY000635; Schaffer Decl. ¶¶ 26-27). They are distributed throughout the year at fairs and presentations, including those targeted to seniors and people with special needs; they are available on the OEM website; and they may also be ordered by calling 311. (See Schaffer Decl. ¶¶ 28-29; Tr. 571:25-562:9). Most of the guides are available in audio, and the guide for seniors and people with disabilities is available in Braille as well. (Schaffer Decl. ¶¶ 2, 26). As noted
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above, the Ready New York: My Emergency Plan guide is specifically designed to assist people with special needs in creating their own emergency plan. (See Ex. 3; Schaffer Decl. ¶ 27).
143. Personal preparedness is indisputably an important component of emergency planning. (See Davis Decl. ¶ 35). The information provided by the City, however, fails in several respects to provide people with disabilities sufficient information to prepare for an emergency. For example, the Ready New York guides provide almost no information about the accessibility of the shelter system — and, to the extent they do, the information is incorrect. None of the Ready New York guides provides a list of shelters or evacuation centers that are accessible to people with disabilities. The Ready New York: My Emergency Plan guide — which is specifically designed for people with special needs — states only that “[s]helters are subject to change depending on the emergency” and that residents should “call 311” to find an accessible shelter during an emergency. (Ex. 3, at CNY001092).
144. In fact, the Ready New York guide specific to hurricanes is the only guide that even provides a list of the City’s evacuation centers. (Tr. 573:23-574:2). But that guide does not specify which evacuation centers are accessible. (See Ex. 4A). Instead, it states that “[c]ity shelters include accessible facilities and accommodations for people with special needs,” suggesting incorrectly that all shelters are accessible to people with disabilities. (Id.). City websites also lack shelter accessibility information. (See Delarosa Decl. ¶ 35; Trapani Decl. ¶ 37). Thus, there appears to be no way for people with special needs to determine in advance which shelters or evacuation centers are accessible to them (a gap that is hardly surprising given that, as discussed above, the City itself does not know which evacuation centers are accessible).
145. Similarly, although the City advises people with special needs to plan for transportation in an emergency, it does not provide information about whether accessible
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transportation will be available or how to access it. (See, e.g., Ex. 3, at CNY001089 (stating that residents should “[b]e prepared to make other transportation plans if [their] subway or bus is not running” but failing to provide any information about accessible emergency transportation options); Ex. 4A (advising people with special needs to “consider your transportation needs” without providing any guidance as to how they should do so)).
146. As numerous class members testified, without information such as which shelters or evacuation centers, if any, are accessible or whether there will be accessible transportation available during an emergency, it is difficult for people with disabilities to develop a sufficient personal emergency plan. (See Bell Decl. ¶¶ 18-19; Buckner Decl. ¶ 13; Conner Decl. ¶ 12; Curry Decl. ¶¶ 25-26; Delarosa Decl. ¶ 74; Halbert Decl. ¶¶ 9-10; Martinez Decl. ¶ 60; Morales Decl. ¶¶ 11-12; Ryan Decl. ¶¶14-15). I. Communications
147. Finally, as noted, Plaintiffs raise various claims with respect to the means and content of the City’s communications with people with disabilities.
148. 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. (See Ex. 65, at CNY020313; Belisle Decl. ¶ 44; Davis Decl. ¶¶ 53, 58). In addition, people with disabilities may be more likely to receive and heed emergency information that is disseminated through people who are familiar with, and trusted by, those receiving the information. (See Ex. 65, at CNY020310; Davis Decl. ¶¶ 54; Kailes Dec. ¶ 106).
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149. The City uses both of these strategies. The City provides emergency-related information through several means of communication, including traditional media, government websites, social media, the 311 system — the City’s non-emergency, government services hotline — and door-to-door notification. (See, e.g., Exs.1-4A, 66-75; Ex. 12, at CNY000627-29; Ex. 29, at CNY011850-51, CNY011854, CNY011883-84; Ex. 302, at CNY00023789; McKinney Decl. ¶ 63). In addition, it distributes information through the Special Needs Advance Warning System, a network of service providers for people with special needs and other special needs organizations. (See Ex. 12, at CNY000631; Ex. 18).
a. Traditional Media 150. A primary way in which the City communicates emergency information to the
public is through traditional media — in particular, through press conferences and press releases. (See, e.g., Ex. 12, at CNY00638-58; Exs. 66-74, 299-335).
151. The City’s Emergency Public Information Plan, its general plan for communicating emergency information, provides “recommendations” about how emergency announcements should be publicized. (See Ex. 29, at CNY011881). For example, the Plan recommends that “TV stations should not overlap closed-captioning space when using crawl”; that the City should “[r]emind stations to pronounce websites and spell them out, as well as print them across the screen”; that “[i]f public briefings have a sign language interpreter, stations should include them in the frame”; and that TTY/TDD numbers and relay information (services that allow people with hearing or speech deficiencies to communicate over the telephone, typically via text) should “[a]lways” be included. (Id. at CNY01182). By their terms, these recommendations are just recommendations; there is no requirement that they be followed, and the City does not have any agreements in place to ensure that they will be.
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152. Similarly, the Coastal Storm Public Information Plan, the City’s plan for communicating emergency information during a coastal storm, provides that “OEM will . . . work with the media and partner organizations to ensure information is disseminated to people with hearing and sight impairments, and that information is provided in an accessible format.” (Ex. 12, at CNY000619). It does not, however, detail how it will do so.
153. Before and during Hurricane Irene, there was no closed captioning of the Mayor’s press conferences; nor did the City use a sign language interpreter. (See Curry Decl. ¶ 20; Tr. 296:9-11). In connection with Hurricane Sandy, the City drafted a policy titled “Engaging the Deaf/Hard-of-Hearing Community.” (See Calise Decl. ¶ 11). The policy provides that “American Sign Language (‘ASL’) interpreters shall be used, at a minimum, when the Mayor provides the public with critical and time-sensitive communications about a significant and imminent threat to public health and safety during a state of emergency.” (Ex. 298). “Such situations,” the policy continues, “[s]hall also require the City to issue a media advisory to the directors, managers, and editors of all major television networks . . . formally request[ing] that networks provide open captioning and post written bullets on screen summarizing the Mayor’s official statements.” (Id.). Finally, the policy provides that “all of the Mayor’s official statements under a state of emergency shall be promptly posted on the City website at nyc.gov.” (Id.).
154. In accordance with this policy, there was an ASL interpreter present at the Mayor’s press conferences during Hurricane Sandy. (See Calise Decl. ¶ 11; Curry Decl. ¶ 22; Tr. 295:23-296:1). In addition, the City issued a Media Advisory “request[ing] that broadcasters provide . . . open captioning of all mayoral announcements and storm updates and when applicable include graphics and post bulleted points that summarizes [sic] the announcement.”
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(Ex. 297; see Calise Decl. ¶ 11. But see Curry Decl. ¶ 22 (testifying that the press conferences she saw during Hurricane Sandy were not closed captioned)).
b. Websites 155. The City also disseminates information through multiple websites, including
NYC.gov, the 311 website, the OEM website, and the website of the MOPD. (See, e.g., Ex. 1, at CNY000038; Ex. 12, at CNY000627; Calise Decl. ¶ 24). The Emergency Public Information Plan “recommends” that websites publicizing emergency information “are accessible to those with special needs.” (Ex. 29, at CNY011881-82). With the exception of the City’s online evacuation zone map, which cannot be read by a screen reader for people with disabilities (see Bell Decl. ¶ 24), there was no evidence presented at trial that the City’s websites are inaccessible to people with special needs.
156. During Hurricane Irene, the NYC.gov website experienced so much traffic that it caused a temporary outage. (See Morrisroe Decl. ¶ 56). The City increased its web capacity thereafter, and as a result, the website remained online during Hurricane Sandy. (See id. ¶ 58).
c. The 311 System 157. The 311 system is the City’s main source of government information and access
to non-emergency services. (See Morrisroe Decl. ¶¶ 11-12; Tr. 292:22-25, 598:13-15). The 311 system is available twenty-four hours a day, seven days a week, by telephone and text message, as well as online. (Morrisroe Decl. ¶¶ 11-12). The 311 call center is accessible to people with hearing impairments through the New York State Relay system for those with hearing impairments. (Morrisroe Decl. ¶¶ 12, 16). The City publicizes the existence of 311 in various ways, including through press releases, social media, and emergency preparedness brochures. (See Morrisroe Decl. ¶ 29).
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158. The 311 call center responds to most inquiries with an automated system that provides information through pre-recorded instructions, messages, and announcements. (Morrisroe Decl. ¶ 19). The automated system begins by stating “that 311 is ‘here to help’” and directing callers to call 911 if the situation is an emergency. (Id.).
159. A caller whose question cannot be answered through the automated system is connected with a representative, who responds to the caller based on scripts in the 311 database. (See Morrisroe Decl. ¶¶ 27-28; Exs. 50-57, 59-60). The scripts are based on information provided by City agencies, which is translated into a usable format by 311 employees. (See Morrisroe Decl. ¶ 24; Tr. 603:22-604:8).
160. Callers cannot directly access emergency services through the 311 system, but 311 call representatives can connect a call to 911. (Morrisroe Decl. ¶ 32). If a 311 representative believes a caller might have an emergency, the representative initiates a conference call with 911 and remains on the line until the 911 operator decides whether 311 or 911 should handle the call. (Id. ¶ 33; Tr. 615:18-616:4).
161. During an emergency, the 311 system provides information such as guidance on preparing for an emergency, how to shelter in place, the location of evacuation zones, how to request evacuation assistance, and evacuation center locations. (See Morrisroe Decl. ¶ 34-36; Exs. 50-60, 486). In fact, in many cases, the City’s public information regarding emergencies does not directly provide information relevant to people with disabilities, but rather directs them to call 311. (See, e.g., Ex. 1, at CNY000041 (“To find an accessible shelter near you during an emergency, call 311 . . . .”); Ex. 67, at CNY00023739 (Mayoral press release issued during Hurricane Sandy directing individuals to call 311 for transportation assistance)).
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162. The 311 system is supported by telephone lines provided by Verizon. (Morrisroe Decl. ¶ 55). During Hurricane Sandy, both of the locations Verizon uses to support the 311 lines failed. (Id.). Nevertheless, the 311 call center remained operational, albeit in a more limited capacity, because the City was able to redirect lines from another location until service at the primary 311 locations was restored. (Id.).
163. Belisle, OEM’s Special Needs Coordinator, testified that he had never seen an assessment of the capacity of 311 during an emergency. (Tr. 293:6-9). Further, although the 311 system maintains statistics about the number of calls it receives and the time each caller waits to speak to a representative, it cannot track callers who try to reach the system but are unable to get through because the capacity of the system was reached. (Tr. 612:20-24). Therefore, although the 311 system was operational throughout Hurricane Sandy, there is no way to know how many people attempted to get through to the system but were unable to do so. (See id.).
164. Several class members testified that they had difficulty reaching 311 during Hurricane Sandy. Class member Kenneth Martinez, for example, testified that he called 311 for about three and a half hours before he was able to get through. (Martinez Decl. ¶ 38; see also id. ¶ 41 (testifying that he also called 911, which just had a recording instructing callers to call 311)). Melba Torres testified that she called 311 numerous times and was unable to get through. (See Torres Decl. ¶¶ 47, 52). Similarly, Mary Conner testified that there were times in the week after Hurricane Sandy when she was unable to reach 311. (See Conner Decl. ¶ 12).
165. During Hurricane Sandy, the 311 system experienced a much higher than average call volume, leading to longer than average wait times for those who wished to speak with a representative. (Morrisroe Decl. ¶ 50). Before the hurricane, the system received an average of 360,000 calls per week, and the average wait time to speak with a 311 call representative was
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eighteen seconds. (Id. ¶¶ 47, 49). In the days between October 25 and November 10, 2012 — that is, the time period just before, during, and after the hurricane — 311 received over three million calls, and the average wait time to speak with a representative was 5.3 minutes. (See id. ¶¶ 48, 50). Some callers, however, waited over twenty minutes to speak to a representative. (See id. ¶ 50 (stating that the maximum wait time on November 4, 2012 was just over twenty minutes); Ex. 84, at CNY00022409 (noting that as of 11:20 p.m. on October 31, 2012, callers were waiting over twenty-six minutes to speak with a representative)).
166. While under ordinary circumstances, these wait times may not be problematic, during an emergency in which the power goes out, some individuals may not have sufficient power in their cellular telephones to wait on hold. (See, e.g., Delarosa Decl. ¶ 48; Torres Decl. ¶ 74; Tr. 195:14-22). In addition, even when 311 has sufficient capacity to receive calls, it can only help those who have the ability to place calls, an ability that is threatened in an emergency. (See, e.g., Ex. 301, at CNY00023773 (transcript of Mayor Bloomberg’s remarks two days after Hurricane Sandy describing the loss of telephone service); Tr. 89:21-92:1 (class member Joyce Delarosa testifying that she had intermittent difficulty making calls during Hurricane Sandy)).
167. For these reasons, 311 may not always a reliable source of information or services during an emergency.
d. The Special Needs Advance Warning System 168. One of the primary ways the City communicates emergency-related information
to people with disabilities is through the Special Needs Advance Warning System (“AWS”). (See Belisle Decl. ¶ 40; Ex. 18). The AWS is “an all-hazards tool to push targeted information to individuals with special needs during hazardous weather, potential utility or transportation
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disruptions, public health emergencies, incidents requiring evacuation, and other emergencies that may impact special needs populations.” (Ex. 18, at CNY000859).
169. The AWS does not provide information directly to people with disabilities; instead, it provides information to service providers for people with special needs by email and online. (Belisle Decl. ¶¶ 40, 42; Ex. 18, at CNY000857). These providers are, in turn, supposed to convey the information to those they serve. (See Maniotis Decl. ¶ 16; Ex. 18, at CNY000857). In addition, when there is an emergency, OEM conducts conference calls with “umbrella AWS agencies,” government agencies that provide services or support to people with special needs or the organizations that serve them. (See Belisle Decl. ¶ 42). The AWS also allows providers to convey information to OEM, such as, for example, how an emergency is affecting their clients or resources the provider might need. (See Ex. 18, at CNY000857; Belisle Decl. ¶ 40).
170. Approximately 900 service providers — organizations such as City agencies that serve people with special needs, advocacy groups for people with disabilities, and health care organizations — have access to the AWS website and receive AWS emails. (See Belisle Decl. ¶ 43; Tr. 294:21-22).
171. As explained in the City’s plan detailing the AWS, the rationale behind the system is that “[e]mergency communication to people with special needs is more effective when done through their service providers” because “[t]hese agencies have developed trusted relationships with their clients and can tailor communication and support to their client’s specific needs.” (Ex. 18, at CNY000857). Plaintiffs’ expert June Kailes testified that “emergency communication to people with disabilities can,” in fact, “be more effective when done through their service providers.” (Kailes Dec. ¶ 106). She expressed concern, however, that “the City is
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overly reliant on this system to communicate with all people with disabilities” and that “the City does not know the effectiveness of the system, or lack thereof.” (Id.).
172. Although it is clear that the AWS reaches many organizations, it is not clear to what extent the information provided to these organizations actually reaches people with disabilities. For one thing, the providers do not receive any resources from the City to aid them in communicating emergency information to people with disabilities. (Tr. 295:8-11). The organizations, therefore, may simply lack the resources to communicate the messages they receive via AWS to their clients. (See, e.g., Trapani Decl. ¶ 75 (“Many of the AWS participating organizations . . . are small non-profits whose budgets and staffs are overtaxed on a good day. These are not organizations that have the resources to take on major notification efforts.”); id. ¶ 74 (testifying that Plaintiff organization CIDNY was unable to reach all of its clients who lived in the evacuation zone during Hurricane Sandy and that if an emergency occurred at night or on a holiday, the organization might not have staff available to pass along AWS messages); Wasserman Decl. ¶ 27 (testifying that during Hurricane Irene, Plaintiff organization BCID was unable to reach all of its clients “because it had limited time and resources with which to conduct this outreach and notification” and that “[i]n an emergency with no advance warning, it is unlikely that BCID would be able to reach a significant portion, if any, of its clients”); Tr. 516:18-517:2 (BCID Executive Director Peters testifying that during Hurricane Sandy, BCID was closed due to the storm, and therefore the organization could not contact its clients until after the Mayor had issued the evacuation order); Ex. 18, at CNY000862 (“Not [all] AWS agencies have the time or resources to reach all clients during an emergency.”)).
173. In addition, many people with disabilities are not connected to a service provider, and therefore would not receive any information transmitted via the AWS. (See, e.g., Kailes
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Decl. ¶ 108 (“The primary problem with New York’s Advance Warning System is that the targeted individual must be connected with a service organization, and persons who are not affiliated with a service or government organization would not get these notifications. This means that many people who live at home independently day to day, who would nonetheless need accessible services during an emergency, would not get warnings about how to use and access accessible emergency services.”); Trapani Decl. ¶ 73 (“People who do not regularly rely on CIDNY for services because they live independently do not get our AWS notifications despite the fact that in an emergency, these people would need additional help and aid.”); Delarosa Decl. ¶ 41 (class member testifying that she is “not a client of any of the independent living centers, or a client of Meals on Wheels, or any other similar organization, so there is no reason . . . any of those organizations would have [her] contact information”); Ex. 18, at CNY000857 (“Not all people with special needs are connected to an AWS agency or are ‘known.’”)).
174. As Belisle acknowledged, the City has not conducted any study to determine the capacity of service providers to deliver the information they receive through AWS to their members and clients. (Tr. 295:12-17).
e. Notify NYC 175. In addition to the AWS, which provides emergency information to organizations,
the City maintains an emergency notification service for individuals called Notify NYC. (McKinney Decl. ¶ 13). Anyone wishing to receive notifications from Notify NYC may register online or via 311 to receive Notify NYC messages, which are available in several formats, including email, text message, and recorded phone call. (Id.; Ex. 1, at CNY000047). The City’s expert Elizabeth Davis testified that the service was accessible to people with disabilities because
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it allowed people to register online or by telephone and because it provided messages in a variety of formats. (Davis Decl. ¶ 68).
176. Notify NYC’s reach , however, is limited. The day before Hurricane Sandy made landfall, Notify NYC had only 100,245 subscribers — only about one percent of the population of New York City. (Ex. 79, at CNY00022659).
f. On-the-Ground Communication 177. In addition to its efforts to reach people through traditional media and online, the
City also distributes emergency information — for example, evacuation notices — by passing out fliers door-to-door. (See Ex. 12, at CNY000621; Ex. 302, at CNY00023789; Conner Decl. ¶ 14; Murray Decl. ¶¶ 41, 44; Torres Decl. ¶ 62; Tr. 752:7-11).
178. The Emergency Public Information Plan directs that written messages should “[u]se specific, clear and concise language, written at a 3rd grade reading level”; that “[w]hen stating locations,” written messages should “include information about finding accessible transportation and sites for those with special needs”; and that those creating fliers and forms should “consider” various “print accessibility guidelines,” such as font type, style, color, and spacing. (Ex. 29, at CNY011881). But there is nothing in the City’s emergency plans requiring that these fliers be accessible to those with visual disabilities or that the information they contain be communicated in other ways to those who cannot read the fliers.
179. During Hurricanes Irene and Sandy, the City distributed fliers that were not, in fact, accessible to those with visual disabilities. (See, e.g., Conner Decl. ¶ 14 (class member with vision disability testifying that, in advance of Hurricane Irene, she received a flier containing evacuation information that she could not read); Tr. 695:6-12 (testifying that the fliers distributed
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during canvassing after Hurricane Sandy were not available in Braille and that there were no instructions about other methods of distributing the information they contained)).
180. Although not called for by the City’s emergency plans, during Hurricane Sandy, NYPD officers also drove through neighborhoods using their patrol car loudspeakers to convey emergency information. For example, in the aftermath of the hurricane, officers drove through neighborhoods that remained without power and used patrol car loudspeakers to encourage residents to go to shelters. (See, e.g., Ex. 305, at CNY00023801; Ex. 307, at CNY00023818; Ex. 310, at CNY00023833; Ex. 313, at CNY00023842).
181. Several class members reported that they lacked sufficient information during Hurricane Irene and Hurricane Sandy. (See Bell Decl. ¶ 25; Conner Decl. ¶ 14; Delarosa Decl. ¶¶ 35-36, 38; Torres Decl. ¶ 62). For the most part, however, the problem was not that they were unaware of the emergency. (But see Martinez Decl. ¶ 28 (testifying that he was unaware of Hurricane Sandy until the day before it made landfall because he did not have a computer and did not watch television or listen to the radio in the days before the storm)). To the contrary, the evidence demonstrates that, because the City distributed information through multiple means, emergency information effectively reached people with disabilities.
g. The Content of Communication 182. The absence of information cited by class members was thus more a function of
the content than the means of the City’s communications. (See Bell Decl. ¶ 25; Delarosa Decl. ¶¶ 35-36; Torres Decl. ¶ 62). For example, the City’s plans do not require that the City provide information about shelter accessibility, accessible transportation, evacuation assistance, or any other information required by people with disabilities to respond to an emergency. And, indeed,
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during recent emergencies, the information relevant to people with special needs has often been incomplete, incorrect, or lacking entirely.
183. For example, the City has failed to provide reliable information about the accessibility of the shelter system. The City has alternately (and in some cases, incorrectly) stated that all evacuation centers are accessible; that all shelters have at least one wheelchairaccessible entrance; and that all evacuation centers have at least one entrance usable by people with wheelchairs. (See Ex. 61 (email sent before Hurricane Sandy via the AWS incorrectly stating that “[a]ll shelters have at least one wheelchair accessible entrance” (emphasis added)); Ex. 151 (email sent by Belisle to an employee of CIDNY before Hurricane Irene stating incorrectly that “all 65 evacuation centers are accessible” (emphasis added)); Ex. 60 (311 script from Hurricane Sandy instructing 311 operators to inform callers that “[a]ll evacuation centers have at least one usable entrance for wheelchairs” (emphasis added)); Ex. 69, at CNY 00023748 (transcript of Mayoral statement, in which Mayor stated “[a]ll of these shelters have at least one entrance usable for wheelchairs”); see also Delarosa Decl. ¶ 33 (class member testifying that in researching the shelter system in advance of Hurricane Irene, she “found that the information about accessibility was inconsistent”)).
184. During Hurricane Sandy, the Mayor repeatedly stated that all of the City’s evacuation centers had at least one entrance that was “usable” by people with wheelchairs. (See Exs. 67-69). This information was also provided to those who called 311. (See Ex. 60). There was no information, however, about whether the facilities within the evacuation centers — such as restrooms and sheltering areas — were accessible. (See Exs. 60, 67-69; see also Delarosa Decl. ¶ 35 (class member testifying that in advance of Hurricane Sandy, a 311 operator told her that the City maintained a list of “accessible” shelters, but that the operator could not tell whether
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the shelters on the list had accessible bathrooms); Trapani Decl. ¶ 37 (testifying that she “was simply not able to obtain information that was reliable about where fully accessible shelters were located, or about how accessible any individual shelter was in fact”)).
185. The City also fails to provide sufficient information about evacuation and transportation assistance for people with disabilities. The City’s initial messages regarding Hurricane Sandy, for example, did not provide any information at all about evacuation assistance for people with disabilities. (See Ex. 66, at CNY00023735 (transcript of Mayor Bloomberg’s remarks, stating “[a]s to the homebound who are living in these communities: if you have homebound relatives or acquaintances in these low-lying areas, consider taking steps now to move them to a safer location, in your own home, or in the home of a relative or friend”); Ex. 278, at CNY00020830 (AWS message stating “[i]f your client lives in an evacuation zone, and the Mayor calls for an evacuation then please prompt them to make arrangements to stay with friends and family if necessary. If those arrangements cannot be made please help him or her determine where they will go and how they will get there if there is an evacuation.”)). This is consistent with the press release templates provided in the Coastal Storm Public Information Plan, which, until twenty-four hours before a storm, do not provide any information about accessible transportation or evacuation assistance from the City; instead, they state “[i]f you have a disability that may prevent you from evacuating your home on your own, seek assistance from friends, relatives, and neighbors.” (E.g., Ex. 12, at CNY000642, CNY000644, CNY000646).
186. One day before the Mayor issued the evacuation order in connection with Hurricane Sandy, the City began directing people to call 311 for transportation or evacuation assistance. (See, e.g., Ex. 67, at CNY00023739; Ex. 68, at CNY00023744; Ex. 355). The City, however, provided no further information about, for example, what accessible transportation was
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available, how long it would be available, and where it was located. Additionally, the information provided was sometimes wrong or misleading; for example, the website for the MOPD continued directing people to contact 311 to request evacuation assistance from paratransit for one day after paratransit had already shut down. (See Ex. 356). After Hurricane Sandy, the Mayor announced that the City would provide buses to shelters in areas that remained without power, but he did not state whether the buses would be accessible to people with disabilities. (See, e.g., Ex. 304, at CNY00023797).
187. Instructing people with special needs to call 311 immediately before or during an emergency is not as effective as providing them with information directly and in advance of an emergency. First, it undermines their ability to develop a personal plan in advance of an emergency, the importance of which the City’s own outreach materials stress. (See Exs. 1- 4A; Tr. 387:7-9, 570:1-8; Trapani Decl. ¶ 5; see also, e.g., Tr. 451:25-452:3 (MOPD Commissioner Calise acknowledging that people who use wheelchairs or have other disabilities need to plan and learn in advance where accessible shelters are located)). Further, as explained above, during an emergency, the 311 system may have long wait times; callers may have difficulty getting through; and telephone service may be unavailable entirely. During an emergency, the communication and transportation options for people with disabilities in particular may be severely curtailed.
188. Several class members testified about the lack of sufficient information during Hurricane Sandy. (See, e.g., Bell Decl. ¶ 25 (“The Mayor . . . gave no useful information or instructions about what people who are blind should do. The Mayor said nothing I could use about how blind people or persons with other disabilities like me might evacuate, shelter, or signal to authorities that they need help.”); Delarosa Decl. ¶ 35 (stating that during Hurricane
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Sandy, she could not find shelter accessibility information online, nor was 311 able to provide such information); id. ¶ 38 (testifying that during Hurricane Sandy, a 911 operator informed her that she “did not know what the emergency plans were for people who use wheelchairs”)). Class member Melba Torres, for example, who lives in New York City Housing Authority housing, testified that the day the Mayor issued the evacuation order, she received a flier under her door at 5:40 p.m. informing her that the building’s elevators would be shut off by 8:00 p.m. (Torres Decl. ¶ 62). The flier, however, included no information about where she should go, whether the shelter system was accessible to people with disabilities, or whether there was accessible transportation to take her to a shelter. (Id.). Lacking this information, she stated that she was unable to get out of the building by the time the elevators shut down. (See id. ¶¶ 62-67).
CONCLUSIONS OF LAW 189. As noted, Plaintiffs allege deficiencies in the following areas of emergency planning and preparedness for persons with disabilities: (1) evacuations, including evacuations from multi-story buildings and transportation; (2) the sheltering system and the amount of time people are expected to shelter in place without assistance; (3) power outages; (5) recovery operations; and (6) communications and outreach. They bring claims under Title II of the ADA, 42 U.S.C. § 12131 et seq., Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq., and the NYCHRL, N.Y.C. Admin. Code § 8-101 et seq. A. Legal Standards 190. The legal framework that governs this case is not materially in dispute. The parties largely, if not entirely, agree on the applicable legal standards.
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a. The ADA and Rehabilitation Act 191. Title II of the ADA provides in relevant part that “[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 be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Similarly, Section 504 of the Rehabilitation Act states 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.
192. Although “there are subtle differences between these disability acts, the standards adopted by Title II of the ADA for State and local government services are generally the same as those required under section 504 of federally assisted programs and activities.” Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003) (internal quotation marks omitted); see also, e.g., Weixel v. Bd. of Educ. of City of New York, 287 F.3d 138, 146 n.6 (2d Cir. 2002) (“Apart from the Rehabilitation Act’s limitation to denials of benefits ‘solely’ by reason of disability and its reach of only federally funded — as opposed to ‘public’ — entities, the reach and requirements of both statutes are precisely the same.”). Further, in this case, the parties agree that the differences between the two statutes are not relevant. (See Pls.’ Mem. Fact and Law, Docket No. 90, at 4 n.1; Defs.’ Pre-Trial Mem. Law, Docket No. 97, at 4 n.1). Accordingly, the Court will consider the ADA and Rehabilitation Act claims together. See Henrietta D., 331 F.3d at 272 (doing the same and citing cases for the proposition that a court may do so unless one of the “subtle distinctions” between the statutes “is pertinent to a particular case”).
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193. The ADA was enacted to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). Given this purpose, it is to be broadly construed. See Henrietta D., 331 F.3d at 279; see also Tcherepnin v. Knight, 389 U.S. 332, 336 (1967) (noting the “familiar canon of statutory construction that remedial legislation should be construed broadly to effectuate its purposes”); Castellano v. City of New York, 142 F.3d 58, 69 (2d Cir. 1998) (noting “the ADA’s broad remedial purpose”). The same is true of the Rehabilitation Act. See, e.g., Heilweil v. Mount Sinai Hosp., 32 F.3d 718, 722 (2d Cir. 1994) (“Because the [Rehabilitation] Act is a remedial statute, it and the regulations promulgated under it are to be construed broadly.”).
194. In order to establish a violation of the ADA or the Rehabilitation Act, Plaintiffs must show that: (1) they are “qualified individuals” with a disability; (2) Defendants are subject to the ADA or the Rehabilitation Act; and (3) Plaintiffs “were denied the opportunity to participate in or benefit from [the City’s] services, programs, or activities, or were otherwise discriminated against by [D]efendants, by reason of [their] disabilities.” Henrietta D., 331 F.3d at 272 (internal quotation marks omitted). Here, there is no dispute that Plaintiffs are qualified individuals with disabilities (or organizations that advocate on their behalf and have standing to sue as organizations, see Brooklyn Ctr. for the Disabled v. Bloomberg, 290 F.R.D. 409, 415-17 (S.D.N.Y. 2012)); that the City is subject to the ADA and the Rehabilitation Act; and that the City’s emergency preparedness program is a service, program, or activity within the meaning of both statutes. (See Defs.’ Pre-Trial Mem. Law (disputing none of these issues); Defs.’ Proposed Findings Fact & Conclusions Law (same)). The only issue, then, is whether Plaintiffs were denied the opportunity to participate in, or benefit from, the City’s emergency preparedness and response program or were otherwise discriminated against by the City.
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195. The ADA seeks to prevent not only intentional discrimination against people with disabilities, but also — indeed, primarily — discrimination that results from “thoughtlessness and indifference,” that is, from “benign neglect.” Alexander v. Choate, 469 U.S. 287, 301 (1985); see H.R. Rep. No. 101–485(II), at 29 (1990). Thus, it is insufficient for a program to be offered on equal terms to those with and without disabilities; the law requires “affirmative accommodations to ensure that facially neutral rules do not in practice discriminate against individuals with disabilities.” Henrietta D., 331 F.3d at 275; see also Tennessee v. Lane, 541 U.S. 509, 511 (2004) (“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.”); 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 put it, “[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).
196. In particular, with respect to Plaintiffs’ claims in this case, “the 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.” Henrietta D., 331 F.3d at 271. Specifically, “an otherwise qualified handicapped individual must be provided with meaningful access to the benefit that the grantee offers.” Id. (emphasis added) (internal quotation marks omitted); see also Alexander, 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
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added)). To accomplish such “meaningful access, reasonable accommodations in the grantee’s program or benefit may have to be made.” Henrietta D., 331 F.3d at 271; accord Alexander, 469 U.S. at 301.
197. At the same time, the Second Circuit has emphasized that a distinction must be drawn “between (i) making reasonable accommodations to assure access to an existing program and (ii) providing additional or different substantive benefits.” Wright v. Giuliani, 230 F.3d 543, 548 (2d Cir. 2000) (per curiam). The ADA and the Rehabilitation Act “do not require that substantively different services be provided to the disabled, no matter how great their need for the services may be. They require only that covered entities make ‘reasonable accommodations’ to enable ‘meaningful access’ to such services as may be provided, whether such services are adequate or not.” Id. The statutes, in other words, do not require “optimal” accommodations. J.D. ex rel. J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 71 (2d Cir. 2000).
198. In interpreting the mandates of the ADA, Courts look to the regulations promulgated by the Department of Justice, which was charged by Congress with implementing the Act. See Henrietta D., 331 F.3d at 273.9 Such regulations provide in relevant part that “a public entity, in providing any aid benefit, or service, may not,” on the basis of disability: (1) “[d]eny a qualified individual . . . the opportunity to participate in or benefit from the aid, benefit, or service”; (2) “[a]fford a qualified individual . . . an opportunity to participate in or

9

Whatever degree of deference is owed to the regulations (an issue not in dispute here),

the views expressed by the Department of Justice in the Statement of Interest it filed in this case

are “entitled to respect, but only to the extent that those interpretations have the power to

persuade.” Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000) (internal quotation marks and

citation omitted). The Court finds that the views expressed in the Statement of Interest are

entitled to great respect, as the Statement was well researched, well reasoned, and ultimately

quite persuasive. That said, although the Statement was very helpful to the Court in evaluating

the complex issues in this case, the Court notes that it has conducted an independent analysis of

each issue in this case, and has not relied on the Statement to support any of its conclusions.

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benefit from the aid, benefit, or service that is not equal to that afforded others”; or (3) “[p]rovide a qualified individual . . . with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others.” 28 C.F.R. § 35.130(b)(1).10
199. In evaluating whether a particular program complies with the ADA, the program must be evaluated “in its entirety.” 28 C.F.R. § 35.150(a). “[T]he ADA does not . . . require perfection.” United Spinal Ass’n v. Bd. of Elections, 882 F. Supp. 2d 615, 624 (S.D.N.Y. 2012). It does not, for example, “[n]ecessarily require a public entity to make each of its existing facilities accessible.” 28 C.F.R. § 35.150(a)(1) (emphasis added); see also Tennessee v. Lane, 541 U.S. at 531-32. It does, however, require that “when viewed in its entirety,” a “service, program, or activity” administered by a public entity be “readily accessible to and usable by individuals with disabilities.” 28 C.F.R. § 35.150(a).
200. To the Court’s knowledge, only one other court — the District Court for the Central District of California — has ever examined a public entity’s emergency preparedness and planning for compliance with the ADA and the Rehabilitation Act. See Communities Actively Living Indep. & Free v. City of Los Angeles (“CALIF”), No. CV 09-0287 (CBM), 2011 WL 4595993 (C.D. Cal. Feb. 10, 2011). In that case, the court found, on summary judgment, that the emergency preparedness program of the City of Los Angeles failed to “include provisions to notify people with auditory impairments or cognitive disabilities of an emergency, or evacuate, transport, or temporarily house individuals with disabilities during or immediately following an emergency or disaster.” Id. at *13. Such failures, the court held, violate Title II of
10 The Justice Department has also promulgated more specific regulations governing, for example, the accessibility of public communications and facilities that house government services. These regulations are discussed below as relevant.
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the ADA and Section 504 of the Rehabilitation Act. See id. at *17. Although the court did not find it “necessary . . . to enumerate every deficiency at [that] stage of the litigation,” it highlighted Los Angeles’s failure “to provide or [even] identify accessible shelters when such shelters are available to other residents” as well as its reliance on ad hoc accommodations rather than planning in advance to meet the needs of people with disabilities. Id. at *13-14. Based on these deficiencies, and others the court did not address in detail, the court held that people with disabilities were “denied the benefits of the City’s emergency preparedness program because the City’s practice of failing to address the needs of individuals with disabilities discriminates against such individuals by denying them meaningful access to the City’s emergency preparedness program.” Id. at *15.
b. The NYCHRL 201. As noted, Plaintiffs also bring claims under the NYCHRL. Under that law, it is
“an unlawful discriminatory practice for any . . . owner, lessee, proprietor, manager, superintendent, agent or employee of any place or provider of public accommodation, because of the actual or perceived . . . disability . . . of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof.” N.Y.C. Admin. Code § 8-107(4)(a). The NYCHRL further requires that “any person prohibited by the [law] from discriminating on the basis of disability shall make reasonable accommodation to enable a person with a disability to . . . enjoy the right or rights in question provided that the disability is known or should have been known by the covered entity.” Id. § 8107(15)(a). Defendants do not dispute that the City’s emergency planning is subject to the NYCHRL. (See Defs.’ Pre-trial Mem. Law 5).
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202. Although the ADA and the NYCHRL are similar in nature, they are not coextensive. See Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 278 (2d Cir. 2009). Under the Local Civil Rights Restoration Act of 2005 (the “Restoration Act”), N.Y.C. Local Law No. 85 (2005), the NYCHRL is to “be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil and human rights laws, including those laws with provisions comparably-worded to provisions of [the NYCHRL], have been so construed.” Id. § 7. As New York courts have made clear, “[a]s a result of [the Restoration Act], the [NYCHRL] now explicitly requires an independent liberal construction analysis in all circumstances, even where state and federal civil rights laws have comparable language.” Williams v. N.Y.C. Hous. Auth., 872 N.Y.S.2d 27, 31 (1st Dep’t 2009); accord Loeffler, 582 F.3d at 278. Accordingly, “[t]here is now a one-way ratchet: ‘Interpretations of . . . federal statutes with similar wording may be used to aid in interpretation of New York City Human Rights Law, viewing similarly worded provisions of federal and state civil rights laws as a floor below which the City’s Human Rights law cannot fall.’” Loeffler, 582 F.3d at 278 (quoting the Restoration Act § 1 (emphasis added)).
203. In particular, the NYCHRL has a broader definition of disability than the definitions contained in the ADA and the Rehabilitation Act, see Attis v. Solow Realty Dev. Co., 522 F. Supp. 2d 623, 631-32 (S.D.N.Y. 2007), as well as a broader notion of which accommodations are reasonable, see Phillips v. City of New York, 884 N.Y.S.2d 369, 378 (1st Dep’t 2009). For purposes of liability in this case, however, the Court has not found — and the parties have not identified — any relevant difference between the analysis required by the NYCHRL and the analysis required by the federal laws of the question at issue here: whether the City discriminates against people with disabilities in its emergency preparedness program. See
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Kreisler v. Second Ave. Diner Corp., No. 10 Civ. 7592 (RJS), 2012 WL 3961304, at *14 (S.D.N.Y. Sept. 11, 2012) (applying the same standard under the ADA and the NYCHRL where the parties had provided no reason to believe the standards under the two laws were different for purposes of the case at issue), aff’d, — F.3d —, 2013 WL 5340465 (2d Cir. 2013) (per curiam). Furthermore, as the Court concludes that the City’s emergency plans violate the ADA and the Rehabilitation Act, it follows that Defendants are liable under the NYCHRL as well. B. Discussion
204. Having summarized the applicable legal principles, the Court turns to Plaintiffs’ challenges to the City’s plans for (1) evacuations, including evacuation from multi-story buildings and transportation; (2) the sheltering system and sheltering in place; (3) power outages; (4) recovery operations following emergencies; and (5) emergency-related communications and outreach.
a. Evacuations 205. First, Plaintiffs have proved that the City’s plans for evacuations, including its
plans for the evacuation of multi-story buildings and its plans for transportation in the event of an emergency evacuation, are not in compliance with the ADA, the Rehabilitation Act, and the NYCHRL. The City maintains several plans intended to facilitate the safe evacuation of City residents and visitors during an emergency. For the most part, these plans assume that people will be able to exit their buildings unassisted and that they will evacuate using public transit. For many people with disabilities, however, these assumptions are flawed. People with disabilities may require assistance evacuating their buildings and accessible public transportation in order to reach an evacuation center. The City’s plans do not sufficiently accommodate either of these needs.
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206. Most glaringly, apart from the HEO, the City has no plan whatsoever for evacuating people with disabilities from multi-story buildings. The evidence at trial showed, however, that many people with disabilities cannot evacuate multi-story buildings on their own, particularly if a power outage has rendered elevators inoperable. The City’s witnesses testified that the City does not need to plan specifically for the evacuation of people with disabilities because it can accommodate all those who need evacuation on a case-by-case basis. But as the court held in CALIF, such ad hoc accommodations “are both legally inadequate and practically unrealistic.” 2011 WL 4595993, at *14.
207. Instead, the evidence at trial, including testimony from the City’s own witnesses, demonstrated that the needs of people with disabilities, including the need for evacuation assistance, could only be accommodated through advance planning. “The purpose of the City’s emergency preparedness program is to anticipate the needs of its residents in the event of an emergency and to minimize the very type of last-minute, individualized requests for assistance described by the City, particularly when the City’s infrastructure may be substantially compromised or strained by an imminent or ongoing emergency or disaster.” Id. With respect to its plans for evacuation of residents from multi-story buildings during an emergency, therefore, the City has failed to provide people with disabilities with meaningful access.
208. This exclusion is magnified by the City’s failure to ensure the availability of sufficient accessible transportation in the event of an emergency. The City’s evacuation plans rely on public transportation, but there is no dispute that the vast majority of such transportation is inaccessible to people with disabilities under the best of circumstances.11 Further, the
11 In its response to the Department of Justice’s Statement of Interest, the City notes that subway and bus service are provided by the New York City Transit Authority (“NYCTA”), and that, “[w]hile NYCTA is a planning partner with the City, it is a separate legal entity, and [] not a
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evidence at trial demonstrated that even transportation that is ordinarily accessible to people with disabilities is likely to be unavailable during an emergency. MTA buses, for example, which have two wheelchair-accessible seats, may be too crowded for people in wheelchairs to board. And paratransit requires a twenty-four hour advance reservation, which renders it almost useless in the event of a disaster that arises without warning. In addition, during Hurricane Sandy, paratransit began to shut down only half an hour after the Mayor issued the evacuation order, while subway and bus service remained open for at least eight more hours.
209. Additionally, the City has no plans or agreements to ensure that paratransit — which is run by the MTA, a state agency, rather than by the City — remains open for a sufficient amount of time after an evacuation order is issued to allow people with disabilities to evacuate; that it remain open for as long as other forms of public transportation to ensure people with disabilities have an equal opportunity as those without disabilities to evacuate; that paratransit operate without the need for reservation in the event of an emergency; or, indeed, that paratransit be available for evacuations at all. Nor does the City have any other plan to ensure the availability of accessible transportation in the event of an emergency.
210. The point of preparing for a mass evacuation in advance is to ensure that, when an emergency strikes, there will be sufficient resources (and plans for the use of those resources) to enable those who need to evacuate to do so. But the failure to plan for accessible transportation virtually ensures that the opportunity of people with disabilities to evacuate will be unequal to that of individuals without special needs — that is, that the opportunity of people with
party to this action.” (Defs.’ Response to Statement of Interest of United States 16 n.2). The City further notes that it does “not own operate or control [sic] the New York City taxis, and cannot be held liable for any purported inaccessibility of that system.” (Id.). That may be true, but it is beside the point here. The City is not liable in this case for the inaccessibility of the subway, bus, and taxi systems per se; it is liable for its emergency preparedness plans, which rely heavily on those systems and do not make adequate provision for people with disabilities.
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disabilities to benefit from advance planning for evacuations is unequal to that of others. In short, because the City’s evacuation plans do not sufficiently account for the transportation needs of people with disabilities, people with disabilities lack meaningful access to those plans.
211. The City’s failure to plan for the evacuation and transportation of people with disabilities is not remedied by the HEO — the only provision in the City’s evacuation plans specific to the evacuation of those with special needs. First, the City does not publicize the existence of the HEO, either in its emergency preparedness outreach or during an emergency. The program is meant as a “last resort.” The City therefore does not intend for people with disabilities to plan to use the HEO to evacuate during an emergency; indeed, given that the public is generally unaware that the HEO even exists, people with disabilities are effectively precluded from doing so. Thus, the HEO does nothing to remedy the fact that people without disabilities are able to plan to evacuate via public transportation, whereas people who require accessible transportation are not informed in any meaningful way whether or how they may evacuate.
212. Second, as discussed above, the HEO was originally designed for emergencies with advance notice, such as coastal storms. On the eve of trial (and perhaps because of the trial), the City incorporated the HEO into its Area Evacuation Plan, its plan for disasters that occur without warning, such as radiological incidents, major explosions, and terrorist attacks. But the HEO is not well suited for such incidents. It is dependent on advance warning and designed to begin — and end — even before the relevant emergency occurs. Even the City’s witnesses were hard pressed to explain whether, or how, the HEO could be implemented in the event of a no-notice emergency event. (Villani Dep. 15:6-20). Thus, the HEO is little or no help to people with disabilities in a disaster that occurs without warning.
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213. Third, even in those emergencies in which the HEO can be implemented, there is no evidence that, as currently resourced, it has the capacity to evacuate all those who might require assistance. The City has not determined how many people might require evacuation assistance through the HEO, and therefore cannot know whether the resources available are sufficient. And finally, the effectiveness of the HEO is limited by its dependence on the 311 system. There is no other way for those who require its assistance to access it. As demonstrated during Hurricane Sandy, however, the 311 system is unreliable during an emergency: some people may be unable to reach 311; some may not have sufficient power in their cellphones to wait for an operator; and others may lack telephone service entirely.
214. Thus, the HEO cannot remedy the fact that although the City’s evacuation plans are intended to apply to all residents, the plans plainly — and unlawfully — fail to take into account the special needs of people with disabilities. See Shirey ex rel. Kyger v. City of Alexandria Sch. Bd., 229 F.3d 1143 (4th Cir. 2000) (per curiam) (holding that the failure to develop an emergency plan for the safe evacuation of people with disabilities violates the ADA). Hurricane Sandy dramatically demonstrated the consequences of this failure. Plaintiffs provided substantial evidence that people with disabilities, unable to leave their buildings unassisted or to locate accessible transportation, remained trapped in high-rise buildings for days after the storm.
b. The Shelter System and Sheltering in Place 215. Next, Plaintiffs have established that, due to both architectural barriers and
programmatic failures, the City’s plans deprive people with disabilities of meaningful access to its shelter system. On the other hand, the Court does not agree with Plaintiffs’ contention that the City unlawfully assumes that people with disabilities can shelter in place without assistance for three days following an emergency.
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i) Architectural Accessibility 216. A public entity may not select a facility to provide a public service that would “defeat or substantially impair[]” the ability of people with disabilities to access that service. 28 C.F.R. § 35.130(4)(ii); see id. § 35.149 (“[N]o qualified individual with a disability shall, because a public entity’s facilities are inaccessible to or unusable by individuals with disabilities, be excluded from participation in, or be denied the benefits of the services, programs, or activities of a public entity . . . .”). This does not mean that every building used for a public service must be accessible: “A public entity may comply with this [regulation] through such means as . . . reassignment of services to accessible buildings, assignment of aides to beneficiaries, . . . delivery of services at alternate accessible sites, alteration of existing facilities and construction of new facilities, . . . or any other methods that result in making its services, programs, or activities readily accessible to and usable by individuals with disabilities.” Id. § 35.150(b); see also id. § 35.150(a)(1) (providing that Section 150(a) does not “[n]ecessarily require a public entity to make each of its existing facilities accessible to and usable by individuals with disabilities”). But whatever means the City chooses, it must ensure that people with disabilities have meaningful access to the shelter system. The City’s plans fail to do so. 217. First, there is no requirement in the City’s emergency plans that the facilities selected as shelters — or at least, a percentage of them sufficient to accommodate the anticipated shelter population of people with disabilities — be accessible. Although the City argues that it directs people to evacuation centers, not shelters, there is not even a requirement that the facilities used as evacuation centers be accessible. The City’s own witnesses admitted that many shelters and evacuation centers are not accessible to people with disabilities.
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218. In fact, the City does not even know which of its shelters and evacuation centers, let alone how many, are accessible. It follows that the City cannot determine whether there are enough accessible shelters to house all those who may require accessible shelter in an emergency; nor can it necessarily direct or transport people to an accessible shelter in an emergency. People with disabilities are plainly excluded from the shelter system if they cannot access the buildings in which it is housed. See 28 C.F.R. § 35.149; see also CALIF, 2011 WL 4595993, at *14 (holding that the City of Los Angeles had violated the ADA and the Rehabilitation Act where the City did “not know which, if any, of [its] shelters [we]re architecturally accessible to individuals with disabilities” and thus “[i]ndividuals with disabilities . . . [had] no way of knowing which shelters [had] been designated as accessible”).
219. Defendants’ arguments that the shelter system complies with the ADA are without merit. First, they contend that every evacuation center has at least one entrance that is “usable” by people with disabilities. (Defs.’ Proposed Findings of Fact & Conclusions of Law ¶ 247). But the ADA requires that the City’s sheltering program be not just usable, but “readily accessible to and usable by” people with disabilities. 28 C.F.R. § 35.150(a) (emphasis added).12 Additionally, as of the time of trial, the City had not assessed the accessibility — or usability — of its shelter system. Thus, it is not even clear that the City’s contention about “usable” entrances is correct. During Hurricane Sandy, at least one evacuation center entrance was
12 Contrary to the City’s suggestion (see Defs.’ Response to Statement of Interest of United States 21 n.3), the fact that the regulations also include the term “usable” is irrelevant. As noted above, the regulations require that the shelter system be not only usable by, but also readily accessible to, people with disabilities. See 28 C.F.R. § 35.150(a). The City’s own witnesses, including its expert witness, conceded that the term “usability,” as employed by the City, does not necessarily mean compliant with the ADA. (See Tr. 439:3-5, 912:25-913:14; 915:22-916:5, 930:5-8; see also Calise Decl. ¶ 18 (same)). In any event, regardless of the terminology with which the City describes its shelters, the evidence demonstrates that the City’s shelter system does not actually meet the requirements of the ADA and the applicable regulations.
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rendered “usable” only by means of a ramp that was not, in fact, usable by a person in a wheelchair, at least not without the help of a police officer.
220. Even assuming the City’s contention is accurate, some of its evacuation centers only had usable entrances during Hurricane Sandy because of the City’s ad hoc modifications as the storm approached. There is nothing in the City’s plans that requires evacuation centers to be located in buildings with usable entrances (let alone anything that provides guidance as to how to modify non-accessible entrances such that they are usable) or confirms that the City has available the resources to do so. Therefore, while the Court does not doubt that the intent of the City during Hurricane Sandy was to make its evacuation centers usable for people with disabilities — and not simply to evade liability in this lawsuit — there is insufficient evidence to demonstrate that in future emergencies all evacuation centers will have usable entrances. Cf. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (explaining that “[a] case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur” and that demonstrating that “the challenged conduct cannot reasonably be expected to start up again” is a “heavy burden” (emphasis added)).
221. More importantly, the ability of people with disabilities to enter a facility is necessary, but not sufficient, for compliance with the ADA. See Brown v. Cnty. of Nassau, 736 F. Supp. 2d 602, 615 (E.D.N.Y. 2010) (noting that the ability of people with disabilities to enter a facility “does not necessarily equate with the facility being readily accessible and usable by the disabled under the law”). Those displaced by a disaster may need to stay at a shelter for days or longer. (See, e.g., Ex. 7, at CNY000366 (“Worst-case storm scenario could require sheltering of over 600,000 evacuees for more than 72-hours.”)). During Hurricane Sandy, the shelters
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remained open for over three weeks. (See Ex. 105, at CNY00022958). If a person with
disabilities cannot use the bathrooms at a shelter, that shelter is not accessible — or even usable
— by that person. See Brown, 736 F. Supp. 2d at 615-16; Ass’n for Disabled Ams., Inc. v.
Concorde Gaming Corp., 158 F. Supp. 2d 1353, 1367 (S.D. Fla. 2001) (“If a public
accommodation’s restrooms are unfit for the use of a disabled person, the public accommodation
is not accessible.” (internal quotation marks omitted)). Where, as here, a facility’s “wheelchair
ramps are so steep that they impede a disabled person or . . . its bathrooms are unfit for the use of
a disabled person, then it cannot be said that the [facility] is ‘readily accessible,’ regardless [of]
whether the disabled person manages in some fashion to” enter it. Shotz v. Cates, 256 F.3d 1077,
1080 (11th Cir. Fla. 2001).
222. Next, Defendants assert that, during Hurricane Sandy, the City assigned aides to
assist people with disabilities. (Defs.’ Proposed Findings of Fact & Conclusions of Law ¶ 247).
The only evidence in the record that anyone in the shelter system was provided with an aide,
however, is a single sentence in the declaration of Erin McLachlan, who managed a SMNS for a
week during Hurricane Sandy. McLachlan testified that “a week or so” after the hurricane,
“FEMA received a contract with ResCare and we brought in approximately 25-30 personal care attendants.” (McLachlan Decl. ¶ 15).13 There is no indication that these attendants were present
13 Defendants’ expert Elizabeth Davis described the Personal Assistance Service, pursuant to which, she explained, a local jurisdiction could request through FEMA personnel to serve as personal attendants and caregivers in the shelter system. (See Davis Decl. ¶ 118). She testified that Hurricane Sandy was the first time this service was activated. (Id.). Davis did not, however, assert any personal knowledge of the Personal Assistance Service or its use during Hurricane Sandy. Accordingly, the Court declines to rely on it. See Fed. R. Evid. 602 (“A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.”); United States v. Cuti, 720 F.3d 453, 457-58 (2d Cir. 2013) (“The Federal Rules of Evidence allow the admission of fact testimony so long as the witness has personal knowledge, while opinion testimony can be presented by either a lay or expert witness.” (internal citation omitted)). In any event, Davis’s testimony would not alter the
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at any other shelter or evacuation center or that they assisted people with disabilities in navigating otherwise inaccessible facilities. Furthermore, even if the attendants aided people with disabilities in receiving sheltering services, they arrived a week after the shelter system opened. People with disabilities do not have meaningful access to the shelter system if they must wait a week after a disaster to use it. Finally, the attendants about which McLachlan testified were provided by FEMA; they were not made available pursuant to any City plan. Therefore, there is no reason to believe they will be available in future emergencies.
223. Third, Defendants note that the eight SMNSs are fully accessible to people with disabilities. (Defs.’ Proposed Findings of Fact & Conclusions of Law ¶ 247). But the ADA requires that public entities “administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d); see also id. Part 35, App. B (defining “the most integrated setting appropriate to the needs of qualified individuals with disabilities” to mean “a setting that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible”). Many people with disabilities do not require the specialized medical care provided in the SMNSs; they require only that a general shelter be accessible to them. Requiring people with disabilities who do not require medical care to seek shelter in SMNSs would therefore violate this regulation. See, e.g., Olmstead, 527 U.S. at 597 (“Unjustified isolation . . . is properly regarded as discrimination based on disability.”); id. at 600 (holding that “institutional placement of persons who can handle and benefit from community settings” violates the ADA).
conclusion that the provision of personal attendants to some people a week after a disaster pursuant to a FEMA program that is not embodied in any City plan is insufficient to overcome the architectural barriers to accessibility in the City’s shelter system.
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224. Finally, Defendants argue that the City’s shelter system as a whole is sufficiently accessible to people with disabilities because, if a particular shelter does not meet a person’s needs, the City will provide accessible transportation to relocate that individual to one that does. (Defs.’ Proposed Findings of Fact & Conclusions of Law ¶ 247). But there is nothing in the City’s sheltering plan about accessible transportation between shelters. And, in any event, it is unclear how the City would transport someone to an accessible shelter given that it does not even know which of its shelters are accessible. Furthermore, the provision of accessible transportation between shelters does not ensure that there are sufficient accessible shelters available. Nor does it account for the possibility that transportation may be difficult or impossible during and after an emergency. The City provides people without disabilities the opportunity to identify in advance, and to use in an emergency, an evacuation center in their neighborhood. People with disabilities are not given this same opportunity.
225. To be sure, the ADA does not require that every shelter be accessible. See 28 C.F.R. § 35.150(a); see also Tennessee v. Lane, 541 U.S. at 531-32. But the City cannot even identify which, or how many, of its shelters and evacuation centers are accessible. There is no way, therefore, for the City to ensure that there are sufficient shelters and evacuation centers to meet the needs of people with disabilities or for it to direct people to accessible shelters and evacuation centers.
226. The City’s sheltering plans prepare it to open sixty-five evacuation centers, any one of which a person without disabilities can use in an emergency, as well as additional shelters sufficient to accommodate over 600,000 people, the maximum number of people the City anticipates will need shelter. At a minimum, to provide people with disabilities meaningful access to the City’s shelter system, the City’s evacuation centers must be accessible to people
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with disabilities; a sufficient number of shelters to accommodate people with disabilities must also be accessible; and the City must be able to identify which shelters are, in fact, accessible. Therefore, in order for people with disabilities to have meaningful access to the City’s emergency plans, the plans must provide for this level of accessibility.14
227. A similar conclusion applies to refuges of last resort. Accessibility is not a criterion the City considers in determining which facilities are chosen to serve as refuges. To ensure that people with disabilities are able to access these refuges in an emergency, the City must ensure in advance that a sufficient proportion are accessible to people with disabilities; identify which refuges are accessible; and, when it publicizes the list of open refuges of last resort during an emergency, provide information about which are accessible.
ii) Programmatic Accessibility 228. The purpose of the City’s shelter system is not only to provide safe buildings in the event of an emergency, but also to “offer essential services to preserve the health and safety of evacuees.” (Ex. 7, at CNY000363). Moreover, even if the purpose of the shelter system were merely to provide safe structures during a disaster, the City would be required to provide reasonable accommodations — such as, for example, the provision of signage in forms intelligible to people with hearing, cognitive, visual, or other disabilities — to ensure that people with disabilities had meaningful access to such structures. See, e.g. Henrietta D., 331 F.3d at 271. Therefore, the City must do more than ensure that the buildings in which it locates its
14 The fact that, at the time of trial, the City was in the process of surveying all DOE facilities for accessibility does not change the Court’s conclusion. First, the record does not contain the results of the process, let alone any evidence that the City has used the data to remedy the lack of accessibility. Second, as discussed above, there are reasons to believe that the methodology of the survey is flawed. Third, and in any event, “[w]hile the Court commends the City for continuing to conduct full accessibility surveys of its shelters . . . , such efforts — in isolation — are not sufficient.” CALIF, 2011 WL 4595993, at *14 (citation omitted).
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shelters are physically accessible; it must ensure that the services offered therein are also accessible. It fails to do so in several respects.
229. First, the City fails to accommodate the communication needs of people with disabilities. Department of Justice regulations provide that “[a] public entity shall take appropriate steps to ensure that communications with [people] with disabilities are as effective as communications with others.” 28 C.F.R. § 35.160(a)(1). Such steps may require the provision of “appropriate auxiliary aids and services.” Id. § 35.160(b)(1). And while “[t]he 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,” the regulations provide that, “[i]n 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.” Id. § 35.160(b)(2).
230. The City’s sheltering plans do not ensure effective communication with people with disabilities. The City’s efforts on this score are minimal: The City does not, for example, provide sign language interpretation at shelters or ensure that common signage is available in Braille. And while the City provides some guidance to shelter staff about communication with people with special needs, the only accommodation it makes in this regard is to provide a communications board with pictures and symbols at shelter registration tables. As noted, this board is not in evidence, and therefore the Court cannot determine the extent to which it might aid people with disabilities that impair their ability to communicate. In any event, such a board cannot aid those with visual disabilities; nor can it enable those with hearing disabilities to understand oral announcements. Nor is it clear that the communications board is available at any
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point other than registration. Without the means to communicate at shelters, people with disabilities may be less able than others to access the services therein. The City’s emergency plans fail to account for this possibility. As the purpose of these plans is to help ensure that all City residents have access to the services provided by shelters, they fail to provide meaningful access to those with disabilities.
231. For some people with disabilities, the ability to meaningfully access the City’s sheltering services also depends on access to electricity. Without electricity, those who, for example, depend on ventilators or power wheelchairs will be less healthy, safe, and independent at a shelter than people without disabilities. Nevertheless, while all of the City’s SMNSs have back-up generators or the capacity to quickly to connect to a back-up generator, there is no plan for ensuring electricity at the other shelters where some people with special needs are bound to be located. Moreover, as noted, the City may not limit its accommodations of people with disabilities to SMNSs. Instead, those who are able to stay in general shelters must be accommodated there. See 28 C.F.R. § 35.130.
232. For the same reason, the City’s provision of supplies required by people with disabilities, such as accessible cots, solely to SMNSs is impermissible. Although the City’s Director of Human Resources testified that, in the future, the City plans to order enough supplies that they may be provided to both SMNSs and general shelters, there is nothing in the City’s plans that requires this and therefore no assurance that the City will do so. See, e.g., Friends of the Earth, 528 U.S. at 189 (“It is well settled that a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.” (internal quotation marks omitted)); R.C. Bigelow, Inc. v. Unilever N.V., 867 F.2d 102,
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106 (2d Cir. 1989) (“[A] disclaimer of intention to revive allegedly unlawful conduct does not suffice by itself to meet defendants’ heavy burden in order to render the case moot.”).
233. Plaintiffs contend that, in general, the City’s stockpile does not contain sufficient supplies to meet the needs of people with disabilities. (See Pls.’ Mem. Fact & Law 12-13). In particular, the City does not stockpile items such as meals for special diets, chargers for power wheelchairs, or prescription medications. Defendants argue that the law does not require it to provide such supplies. Ordinarily, a public entity is not required “to provide to individuals with disabilities personal devices, such as wheelchairs; individually prescribed devices, such as prescription eyeglasses or hearing aids; readers for personal use or study; or services of a personal nature including assistance in eating, toileting, or dressing.” 28 C.F.R. § 35.135. This regulation, however, is not universally applicable. It does not apply “in special circumstances, such as where the individual is an inmate of a custodial or correctional institution.” 28 C.F.R. Part 35, App. B (2005). An emergency constitutes a similar special circumstance. The purpose of the shelter system is to provide people with the goods and services they need to remain healthy, safe, and functional when an emergency has rendered them unable to provide these goods and services for themselves. The City may not provide people without disabilities the goods and services they require while withholding them from those with special needs.
234. But Plaintiffs presented no evidence that those who need such supplies are unable to get them through the City’s substantial requisition process, through which the City can obtain almost anything within forty-eight hours. (Tr. 640:9-16). Therefore, there is no reason the stockpile itself must contain these items. Plaintiffs failed to demonstrate that the stockpile, combined with the elaborate requisition process, was insufficient to accommodate the needs of people with disabilities. See, e.g., Wells v. Thaler, 460 Fed. Appx. 303, 313 (5th Cir. 2012)
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(holding that the plaintiff had failed to establish an ADA violation where there was “no evidence indicating that the existing resources are inadequate or did not meet his needs”).
235. The City’s communication about the stockpile, however, is another matter. Although the record indicates that the City provides adequate supplies for people with disabilities in the shelter system, the City informs the public that it will not do so. This misinformation not only violates the requirement that people with disabilities must be able to obtain accurate information about the provision of accessible services, see 28 C.F.R. § 35.163(a), but also dissuades people with disabilities from attempting to use the shelter system. In both respects, it does not provide people with disabilities meaningful access to the City’s program.
iii) Sheltering in Place 236. Next, Plaintiffs contend that because the City advises residents to prepare to shelter in place for three days after an emergency, its plans rely on this assumption. (See Pls.’ Mem. Fact & Law 15). Such an assumption, they argue, disproportionately burdens people with disabilities, many of whom are unable to survive on their own for that period of time. (Id.). But the City’s plans provide that, where possible, evacuation will take place before an emergency, and that in an emergency without notice, evacuation and life safety measures will take place as soon as possible thereafter. The City’s recommendation that people be prepared to shelter in place for up to seventy-two hours is simply personal preparedness advice — advice that is in accordance with guidance provided by FEMA and the Red Cross. Such guidance cannot in and of itself disproportionately burden people with disabilities. c. Power Outages 237. The City’s failure to account for people with disabilities during a power outage impairs their ability to meaningfully access any City services after an emergency. Because many
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people with disabilities depend on elevators, a power outage renders many people with disabilities unable to leave their buildings. Those unable to leave their buildings are obviously unable to access the City’s emergency services, such as sheltering, food and water distribution, and the provision of medical services.
238. The City’s power outage plan does not account for this. It plans for the electric company, and if that fails, the Police Department, to check on people dependent on electricitypowered life-sustaining equipment in the event of a power outage. But the City’s emergency plans do not require that, where possible, the public — or least those who depend on electricity for health, safety, or mobility — be notified in advance of a power outage; as explained above, the plans do not provide sufficient evacuation assistance to ensure that during a power outage, people with disabilities can exit their buildings; nor do they call for canvassing after an emergency, to help ensure that the services provided to people without disabilities may reach those with disabilities who are unable to leave their buildings.
239. Although the City did undertake a large-scale canvassing effort after Hurricane Sandy, this canvassing was an improvised response to the realization that people remained trapped in their buildings after the storm. As noted, such “ad hoc reasonable accommodations . . . are both legally inadequate and practically unrealistic” in the context of an emergency preparedness program, the purpose of which “is to anticipate the needs of [the City’s] residents in the event of an emergency and to minimize” the need for improvisation, “particularly when the City’s infrastructure may be substantially compromised or strained by an imminent or ongoing emergency or disaster.” CALIF, 2011 WL 4595993, at *14. To ensure that people with disabilities are able to access the services provided by the City after an emergency, therefore, such a response must at least be incorporated into the City’s plans.
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d. Recovery Operations 240. As noted, the City’s emergency plans provide for the provision of resources and
the removal of debris in the aftermath of a disaster. For the most part, these plans are sufficient to accommodate the needs of people with disabilities.
i) Resource Provision 241. The City has several plans for the provision of resources — such as food and water, ice, and information about various kinds of assistance — after an emergency. The plans direct that the facilities at which these resources are provided be accessible to people with disabilities. (See Ex. 24, at CNY018542; Ex. 25, at CNY018609; Ex. 30, at CNY015234). And there was no evidence presented at trial that would suggest that the facilities were not, in fact, accessible following Hurricane Sandy. The City’s emergency plans do not, however, provide for accessible communications at the centers where resources are distributed. Such failure plainly violates the City’s obligation to provide equally effective communication to people with disabilities, see 28 C.F.R. § 35.160(a)(1), and impedes people with disabilities from accessing the resources provided. ii) Debris Removal 242. Next, Plaintiffs argue that the City’s plan for removing debris after an emergency does not adequately account for people with disabilities, who may be unable to navigate streets and sidewalks littered with debris. With the exception of one provision that states that the City will “coordinate efforts” to address the debris removal needs of people with disabilities, the Debris Management Plan does not specifically address those needs. Plaintiffs’ argue that because of this omission, the plan violates the ADA. (Pls.’ Mem. Fact & Law 20). The ADA, however, does not mandate that all City services provide special accommodations for people
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with disabilities. Instead, it mandates that people with disabilities have meaningful access to all services; special accommodations are required only if necessary to achieve this access. See, e.g., Henrietta D., 331 F.3d at 271; Thomas v. Pa. Dep’t of Corr., 615 F. Supp. 2d 411, 425-26 (W.D. Pa. 2009) (“[T]he law requires only that defendants provide accommodations that would allow plaintiff to participate in the desired programs; the court has found no cases, and plaintiff has not provided the court with one, which stand for the proposition that plaintiff is entitled to whatever accommodation he desires.”). This lawsuit was filed shortly after Hurricane Irene and went to trial months after Hurricane Sandy. And yet the only evidence Plaintiffs provided that anyone with disabilities was ever impeded by debris was testimony about the failure to clear snow banks after a single snowstorm years earlier. They have thus failed to demonstrate that the City’s debris removal plan does not sufficiently accommodate the needs of people with disabilities as it is written.
iii) Interim Housing 243. Plaintiffs argue that “the City’s plans for accessible housing in the recovery phase after an emergency are virtually nonexistent.” (Pls.’ Mem. Fact & Law 19). They are correct. That is not because the City’s housing plans fail to consider people with disabilities, however, but rather because the City lacks any plan for interim housing. 244. At most, the City has a plan that has not taken effect, pursuant to which it is developing interim housing units. As of the date of the trial in this case, however, these units had yet to be implemented. And, in any case, they were to be fully accessible to people with disabilities. During Hurricane Sandy, the City provided interim housing in hotel rooms. Again, however, this was not done pursuant to any preexisting emergency plan. And, again, the City provided accessible hotel rooms to those who needed them.
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245. There is no dispute that interim housing after an emergency is important to people with and without disabilities. It is, however, a program that is not currently included in the City’s plans. Because the City does not plan for interim housing for anyone, the ADA does not require that it do so specifically for people with disabilities. See Wright, 230 F.3d at 548 (“[T]he disabilities statutes do not require that substantively different services be provided to the disabled, no matter how great their need for the services may be. They require only that covered entities make ‘reasonable accommodations’ to enable ‘meaningful access’ to such services as may be provided, whether such services are adequate or not.”).
e. Communications 246. Plaintiffs’ last substantial challenge to the City’s plans concerns both the means
and content of communications, from the City’s outreach and education program in advance of an emergency to its communications before and during an emergency. For the most part, the City’s means of communicating (at least outside of the shelter system and at the resource distribution centers, which are discussed above) are sufficient to comply with the ADA; the content of its communications, however, falls short in several respects.
i) Outreach and Personal Emergency Planning 247. As noted above, the City provides a robust outreach program designed to assist individuals in preparing a personal emergency plan. Among other things, a personal preparedness plan should include information about how a person would evacuate during an emergency, where they would go, and how they would get there. But the City’s outreach fails to provide crucial information that people with disabilities would require to develop such a personal preparedness plan. For example, the City does not publicize which shelters or evacuation centers are fully accessible to people with disabilities (in part because the City itself does not know that
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information). Nor does it provide information about whether accessible transportation will be available during an emergency and how to access it.
248. The law requires that “[a] public entity shall ensure that interested persons, including persons with impaired vision or hearing, can obtain information as to the existence and location of accessible services, activities, and facilities.” 28 C.F.R. § 35.163(a). The City’s otherwise impressive outreach program fails to do so. This failure to provide information about the existence and location of accessible services, such as evacuation centers and transportation, renders people with disabilities less able to develop a personal emergency plan than others.
249. The instruction, in some of the City’s materials, to call 311 during an emergency to find the locations of accessible shelters does not remedy this lack of advance information. For one thing, the ability of people to access the 311 system may be compromised in an emergency. But, more importantly, people without disabilities are able to plan in advance where they will go and how they will get there in an emergency. Without any information on accessible evacuation centers or transportation, people with disabilities cannot make such a plan. The ADA prohibits the provision of such an unequal opportunity to plan. See 28 C.F.R. § 35.130(b)(1); see also U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 397 (2002) (characterizing the purpose of the ADA as a “basic equal opportunity goal”); Henrietta D. v. Giuliani, 119 F. Supp. 2d 181, 208 (E.D.N.Y. 2000) (holding that a City program that failed to provide people with disabilities an “equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others” violated the ADA (internal quotation marks omitted)),
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appeal dismissed by 246 F.3d 176 (2nd Cir. 2001), and aff’d sub nom. Henrietta D. v. Bloomberg, 331 F.3d 261 (2d Cir. 2003).15
ii) Communications During an Emergency 250. Plaintiffs also contend that both the means and content of the City’s communication during an emergency are insufficient. As noted above, with respect to the means of communication, Justice Department regulations provide that “[a] public entity shall take appropriate steps to ensure that communications with [people] with disabilities are as effective as communications with others,” 28 C.F.R. § 35.160(a)(1), including, where necessary, the provision of “appropriate auxiliary aids and services,” id. § 35.160(b)(1). 251. The City employs a wide variety of methods — including press conferences, websites, the 311 system, AWS, and NotifyNYC.gov — to communicate information during an emergency. Most, if not all, of these means are accessible to people with disabilities. The Mayor’s office, for example, has a policy requiring sign language interpretation of important press conferences; the City’s websites are largely accessible to those who are blind via screen readers; and 311 is available to those who are deaf via TTY. None of these means of information distribution is perfect. Press conferences may not always be closed-captioned; the 311 system may not always be available; and the reach of AWS is limited. But the multiplicity
15 That is not to say that the City needs to provide information on the accessibility of all of its shelters to comply with the ADA. Such a mandate would be incompatible with the solar system model of sheltering that the City has devised, a model with significant benefits (including the ability to focus resources where needed, which plainly helps in serving people with disabilities). Moreover, the ADA does not demand that level of perfection. See, e.g., United Spinal Ass’n, 882 F. Supp. 2d at 624. At a minimum, however, the ADA requires the City to provide accurate information about the accessibility of evacuation centers — the location of which the City knows in advance of an emergency and to which all evacuees are directed in the first instance.
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of means by which information is distributed ensures that people with disabilities have an equal opportunity to access emergency information as those without disabilities. See, e.g., Loye v. Cnty. of Dakota, 625 F.3d 494, 499-501 (8th Cir. 2010) (holding that the proper standard is not whether every communication is accessible, but rather whether, as a whole, the communication provided to people with disabilities is “effective” and ensures “meaningful access to the services being provided”).
252. Notably, the only person with disabilities that Plaintiffs identified who was insufficiently warned of Hurricane Sandy’s approach, Kenneth Martinez, testified that he did not have a computer, watch television, or listen to the radio in the days leading up to the storm. (See Martinez Decl. ¶ 28). It was not, therefore, Martinez’s disability that prevented him from receiving the City’s emergency information; 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. 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.
253. There is certainly room for the City to improve on its plans with respect to the means of communicating emergency information. For example, while the City adopted a policy during Hurricane Sandy to require a sign language interpreter at the Mayor’s press conferences, that policy is not memorialized in the City’s emergency plans themselves and is limited by its terms to the Mayor’s press conferences. (Ex. 298). Additionally, while there are recommendations that televised warnings and alerts contain audio and captioning components, there is nothing in the City’s plans that requires these accommodations. (See Tr. 295:18-22). Given the multiplicity of ways that the City communicates emergency information and the lack
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of evidence that people with disabilities do not receive this information, however, these shortcomings are not enough in themselves to constitute a violation of the ADA.
254. The content of the City’s emergency communications, however, is a different matter. In particular, just as the City’s outreach program fails to provide sufficient information about the location of accessible emergency services, so too do its communications during an emergency. For example, the City’s emergency plans do not require the City to provide information about the location of accessible evacuation centers during an emergency. During Hurricane Sandy, the City announced only that all evacuation centers had a usable entrance. As explained above, however, a usable entrance does not make an evacuation center or shelter accessible, let alone accessible within the meaning of the ADA and applicable regulations. The failure to provide information about which evacuation centers or shelters were actually accessible plainly deprives people with disabilities of the ability to “obtain information as to the existence and location of accessible services, activities, and facilities.” 28 C.F.R. § 35.163(a).
255. Nor do the plans require the City to publicize the availability of evacuation assistance or accessible transportation. Instead, the City encourages residents to call 311 to access this information. As repeatedly noted above, however, the 311 system may be unavailable during an emergency. And, in any event, limiting people with disabilities to calling 311 during an emergency deprives them of the opportunity to develop an evacuation plan in advance of the emergency. That guidance, therefore, also fails to satisfy the requirement that the City provide people with disabilities information about the existence and location of accessible services. See 28 C.F.R. § 35.163(a); Clarkson v. Coughlin, 898 F. Supp. 1019, 1044 (S.D.N.Y. 1995) (“[A] public entity . . . is obligated by the ADA to make available . . . information regarding . . . the existence and location of accessible services, activities and facilities.”).
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f. Other Issues i) Inclusion of People with Disabilities in the Planning Process 256. In addition to evidence regarding the insufficiency of the City’s emergency plans
themselves, Plaintiffs also introduced evidence intended to demonstrate that the City does not sufficiently include people with disabilities in the planning process. Plaintiffs, however, have not alleged — let alone demonstrated — that people with disabilities are denied an opportunity to participate in the planning process that those without disabilities are given. Cf. 28 C.F.R. § 35.130 (prohibiting a public entity from denying a person with a disability “the opportunity to participate as a member of planning or advisory boards” on the basis of that disability). There is no question that the inclusion of people with disabilities in the planning process may facilitate the development of plans that accommodate their needs. (See Belisle Decl. ¶ 30; Blanck Decl. ¶ 57; Kailes Decl. ¶ 128). But the ADA does not mandate that the City involve people with disabilities in the formulation of its emergency preparedness program; instead, it requires only that they have meaningful access to that program. Conversely, even if — as Defendants contend — people with disabilities are included in the City’s planning process, such inclusion does not remedy the failure of the emergency plans themselves to adequately accommodate people with special needs.
ii) Fundamental Alteration and Undue Hardship Defenses 257. Although public entities generally have an obligation to “make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability,” such modifications are not required if a public entity can demonstrate that the requested accommodations “would fundamentally alter the nature of the service, program, or activity,” 28 C.F.R. § 35.130(b)(7), or “impose an undue hardship on the
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operation of [the] program,” id. § 41.53; see also Henrietta D., 331 F.3d at 281. The contention that a requested accommodation constitutes a fundamental alteration or would impose an undue hardship is an affirmative defense. See Am. Council of the Blind v. Paulson, 525 F.3d 1256, 1266 (D.C. Cir. 2008); Lentini v. Cal. Ctr. for the Arts, 370 F.3d 837, 845 (9th Cir. 2004). Plaintiffs contend that Defendants waived any such defense by failing to plead it in their Answer. (See Pls.’ Mem. Fact & Law 4 n.2; Ans. (Docket No. 33)).
258. Rule 8(c) of the Federal Rules of Civil Procedure provides that “[i]n responding to a pleading, a party must affirmatively state any . . . affirmative defense.” But the fundamental alteration and undue hardship defenses arise in response to a plaintiff’s proposed accommodation. See, e.g., Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 138 (2d Cir. 1995); see also Henrietta D., 331 F.3d at 281 (“The regulations implementing both the Rehabilitation Act and the ADA give a public entity defendant the opportunity to show that a requested accommodation is unreasonable.” (emphasis added)). Here, Plaintiffs’ Amended Complaint did not propose any specific accommodations. Instead, it sought a declaration that Defendants had violated the ADA, the Rehabilitation Act, and the NYCHRL; and an injunction requiring Defendants to develop an emergency preparedness program that adequately accommodates people with disabilities. (Am. Compl. ¶¶ 155-56). Defendants, therefore, could not reasonably be expected to have pleaded a defense to a claim not presented. The Court has not found — and Plaintiffs have not cited — any case in which a court has held that failure to plead a fundamental alteration or undue hardship defense waived that defense, particularly where, as here, Plaintiffs did not request in their Complaint any particular modifications.16
16 Furthermore, the failure to plead an affirmative defense in an answer does not automatically waive that defense. See McGuiggan v. CPC Int’l, Inc., 84 F. Supp. 2d 470, 480 (S.D.N.Y. 2000). In particular, the law is clear that, “in the absence of prejudice, a defendant
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259. Because the trial was limited to the question of liability, the parties (and the Court) agreed to defer the question of remedies — that is, the availability of modifications to the City’s emergency preparedness program and the reasonableness thereof — until after the Court reached its decision on liability. (See Tr. 985:15-987:2). The Court notes, however, that the record supports the conclusion that reasonable modifications are available to remedy at least some of the demonstrated violations. For example, the Department of Justice provides a Tool Kit to help ensure that emergency planning complies with the ADA. (See Tinio Decl. Ex. A). And the City took several actions in response to Hurricane Sandy that are not currently included in the City’s emergency plans — for example, canvassing buildings after a prolonged power outage — that demonstrate that such actions are reasonable and do not pose an undue burden on the City or fundamentally alter the City’s emergency planning program. Because, however, the trial was limited to the question of liability, the Court need not, and does not, address the reasonableness of any specific proposed modification at this time. See CALIF, 2011 WL 4595993, at *16. Instead, at the remedy stage that will follow this Opinion, Plaintiffs will be given an opportunity to offer proposed accommodations, and Defendants will be given the opportunity to demonstrate that any such accommodations are unreasonable or fundamentally alter the nature of the City’s emergency preparedness program. See Brown, 736 F. Supp. 2d at 612 (explaining that an ADA plaintiff bears the initial burden of demonstrating that “there are
may raise an affirmative defense in a motion for summary judgment for the first time.” Id. (internal quotation marks omitted). This Court does not ordinarily — and did not in this case — permit summary judgment practice in a non-jury action. See Individ. Rules & Practices 3(C)(i). Defendants raised the issues of fundamental alteration and undue hardship in their pretrial memorandum of law (see Defs.’ Mem. Law 5), and their proposed findings of fact and conclusions of law (see Defs.’ Proposed Findings Fact & Conclusions Law ¶¶ 252-53). As the Court has yet to consider any particular accommodations, it follows that Plaintiffs have suffered no prejudice from Defendants’ failure to raise this defense in their Answer.
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plausible modifications that could be made to make the [program or service] readily accessible
and that the costs of such modifications, facially, do not clearly exceed their benefits” and that
once that burden is satisfied, “the burden of persuasion shifts to the defendant to show that
making the [program or service] readily accessible would result in a fundamental alteration of
the nature of services or an undue burden”).
CONCLUSION
In sum, the Court concludes that the City has violated the ADA, the Rehabilitation Act,
and the NYCHRL by failing to provide people with disabilities meaningful access to its
emergency preparedness program in several ways. In particular:
(1) The City’s evacuation plans do not accommodate the needs of people with disabilities with respect to high-rise evacuation and accessible transportation;
(2) its shelter plans do not require that the shelter system be sufficiently accessible, either architecturally or programmatically, to accommodate people with disabilities in an emergency;
(3) the City has no plan for canvassing or for otherwise ensuring that people with disabilities — who may, because of their disability, be unable to leave their building after a disaster — are able to access the services provided by the City after an emergency;
(4) the City’s plans to distribute resources in the aftermath of a disaster do not provide for accessible communications at the facilities where resources are distributed;
(5) the City’s outreach and education program fails in several respects to provide people with disabilities the same opportunity as others to develop a personal emergency plan; and
(6) the City lacks sufficient plans to provide people with disabilities information about the existence and location of accessible services in an emergency.
By contrast, Plaintiffs have failed to prove that the City’s emergency preparedness
program violates the law in other respects. For example, Plaintiffs failed to establish that the
City’s plans regarding the provision of supplies to people with disabilities housed in the shelter
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system during an emergency are insufficient or that the City’s advice to residents to be prepared to shelter in place for seventy-two hours after an emergency violates the law. Additionally, while the evidence indicates that there are problems with the content of the City’s emergency communications, Plaintiffs have not demonstrated that the means by which the City disseminates emergency information, and plans to do so in the future, are, considered together, inadequate to effectively communicate the information to people with disabilities. Finally, with respect to recovery operations, Plaintiffs have failed to establish that the City’s emergency preparedness plans violate the rights of people with disabilities in providing for accessible facilities to distribute resources after an emergency, in preparing for the removal of debris, or — to the extent the City has a plan at all — in furnishing interim housing following an emergency.
The record in this case makes clear that, although the City’s emergency preparedness plans fall short of legal requirements in several significant respects, they are still remarkable in many ways. The challenges facing cities in general, and this city in particular, are immense, and New York City has done an admirable job of preparing for a wide range of disasters, both manmade and natural, that could strike at almost any time. The record also makes clear that individual New Yorkers have gone to great lengths, and put themselves at great risk, to help their fellow New Yorkers, including many with special needs. The question in this case, however, is not whether the City, or individual first responders, have done an admirable job in planning for, or responding to, disasters generally. They plainly have. Instead, the question is whether the City has done enough to provide people with disabilities meaningful access to its emergency preparedness program given the broad remedial purposes of the ADA, the Rehabilitation Act, and the NYCHRL. The answer to that question is that it has not, and in doing so it has deprived
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people with disabilities of what they are entitled to under the law, not to mention of the peace of mind that people without disabilities can have when it comes to the City’s preparedness plans.
As noted above, the trial in this case was limited to the question of liability. Having found that the City violated the ADA, the Rehabilitation Act, and the NYCHRL in several respects, the Court will proceed to consider the issue of how to remedy those violations. Given the complexity and potential expense involved, there is no question that crafting an appropriate remedy would be better accomplished by those with expertise in such matters and through negotiation, whether court-supervised or otherwise, than by Court order. Further, the United States has indicated that it is able and willing to assist the parties and, if necessary, the Court in addressing the question of remedy. (Statement of Interest of the United States 1 n.2).
The parties are therefore directed to meet and confer — in person and with representatives of the Department of Justice, if they elect to participate — about the most productive means of resolving the question of remedies through alternative dispute mechanisms. At the same time, mindful that the Court will impose remedies if the parties cannot agree on them, the parties shall discuss the process and schedule for the remaining litigation, including but not limited to whether there is a need for additional discovery, whether the parties anticipate motion practice, and whether there is a need for another trial on remedies. The parties shall submit a joint status letter with respect to these matters and any other information that the parties believe may assist the Court in advancing the case to settlement or trial no later than November 26, 2013. They shall then appear for a conference with the Court on December 3, 2013 at
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3:15 p.m. in Courtroom 1105 of the Thurgood Marshall Courthouse, 40 Centre Street, New York, New York. SO ORDERED. Dated: November 7, 2013
New York, New York
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 Case 1:11-cv-06690-JMF Document 202 Filed 10/15/14 Page 1 of 55

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK --------------------------------------------------------------------- x
BROOKLYN CENTER FOR INDEPENDENCE OF THE DISABLED, a nonprofit organization, CENTER FOR INDEPENDENCE OF THE DISABLED NEW YORK, a nonprofit organization, GREGORY D. BELL, and TANIA MORALES,
Plaintiffs,
-against-
BILL DE BLASIO, in his official capacity as Mayor of the City of New York, and the CITY OF NEW YORK,
Defendants.
--------------------------------------------------------------------- x

10/15/2014
STIPULATION OF SETTLEMENT AND [XPXRXOXPXOXSXEXDX] REMEDIAL ORDER 11 Civ. 6690 (JMF)(FM)

WHEREAS Plaintiffs commenced the instant lawsuit on September 26, 2011, alleging that Defendants violated federal, state, and city law by failing to account for the needs of persons with disabilities in the City’s emergency preparedness program;
WHEREAS, on November 14, 2012, the Court certified the following class: “All people with disabilities, as defined by the Americans with Disabilities Act (ADA), 42 U.S.C. § 12102, who are within the City of New York and the jurisdiction served by the City of New York's emergency preparedness programs and services” (“the Class”);
WHEREAS the Honorable Jesse M. Furman issued an Opinion and Order dated November 7, 2013, following a trial on issues of liability (Dkt. No. 159);
WHEREAS Defendants have stated their intention to comply with the Opinion and Order; and

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WHEREAS the parties have met and conferred over the course of several months and have agreed upon a proposed remedial plan to remedy the violations found in Judge Furman’s Opinion and Order;
NOW, THEREFORE, IT IS HEREBY STIPULATED, by and between the undersigned, that the parties have reached agreement on the following terms and conditions, and submit the attached agreed-upon remedial plan to the Court to be “so ordered”: SECTION 1: DEFINITIONS 1. “Effective Date” means the date this Stipulation of Settlement and Remedial Order
(“Order”) is entered as an order of the Court. 2. “Effective Period” means the period of time from the Effective Date until the termination
of the Court's continuing jurisdiction over this action. SECTION 2: THE PARTIES’ RIGHTS AND OBLIGATIONS 3. Defendants’ obligations with respect to Sheltering, Canvassing, Accessible
Transportation, Emergency Communications, and Power Outages are set forth in the individual Memoranda of Understanding (“MOU”) attached hereto as Exhibits A through E and are incorporated herein by reference. Defendants shall comply with their obligations as set forth in Exhibits A through E within three years after the Effective Date. 4. Defendants’ obligations with respect to the hiring of a Disability and Access and Functional Needs Coordinator and the creation of a Disability Advisory Community Panel (“Coordinator/Panel”) are set forth in the MOU attached hereto as Exhibit F and are incorporated herein by reference.
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5. Defendants’ obligations with respect to High Rise Evacuation are set forth in the individual MOU attached hereto as Exhibit G and are incorporated herein by reference. Defendants shall comply with their obligations as set forth in Exhibit G within four years after the Effective Date.
SECTION 3: MODIFICATION 6. If, at any time, Plaintiffs or Defendants desire to modify the Agreement for any reason,
the Party that seeks such modification shall notify the other Party, in writing, of the proposed modification and the reasons therefor. If the parties reach agreement on the requested modification, it shall be reduced to writing, signed, and filed with the Court for approval. To the extent the parties cannot agree on the modification, replacement, or removal of a remedial item, the dispute resolution procedures in Section 5 will apply. SECTION 4: MONITORING 7. Defendants shall produce written reports to reflect the current status of the progress of implementing the MOUs. The reports will be provided to Plaintiffs’ counsel and filed with the Court every six months. The first report shall be due to Plaintiffs and the Court six months following the Effective Date. 8. Defendants shall, three years following the Effective Date, provide Plaintiffs’ counsel and file with the Court a final report regarding the implementation of the Sheltering, Canvassing, Accessible Transportation, Emergency Communications, and Power Outages MOUs. 9. Defendants shall, four years following the Effective Date, provide Plaintiffs’ counsel and file with the Court a final report regarding the implementation of the High Rise Evacuation MOU.
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10. Defendants shall, four years following the Effective Date, provide Plaintiffs’ counsel and file with the Court a final report regarding the implementation of the Coordinator/Panel MOU.
11. The reports shall describe: a. Progress of the implementation of the Order in each of the remedial areas; b. Any anticipated delays in meeting deadlines; and c. Any barriers to implementation of the Order.
12. Within 30 days of receiving the report, Plaintiffs may submit comments, questions, and requests for additional information to the City. Defendants agree to respond to Plaintiffs’ comments and questions, and provide additional responsive information and documentation, if any, within 15 days of receipt, or within 30 days (should this responsive period overlap with an emergency activation). Defendants reserve the right to object to any requests that they believe are unduly burdensome, irrelevant, or overbroad.
SECTION 5: JURISDICTION AND ENFORCEMENT 13. The provisions of this Stipulation shall not take effect unless and until this Stipulation is
entered as an order of the Court, at which time it shall become effective. 14. All claims raised by the named individual plaintiffs on their own behalf and on behalf of
the Class in the Complaint shall be dismissed with prejudice at such time as the Court endorses this Order after a Fairness Hearing, or after the issuance of a modified Order, if any. 15. As of the Effective Date, the remedies enforceable in this action are limited to the provisions of this Stipulation and the individual MOUs. 16. As of the Effective Date, the jurisdiction of this Court shall terminate for all purposes except that the Court shall maintain continuing jurisdiction over this action for the
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purpose of (a) conducting a Fairness Hearing to consider class member objections, if any, and modifying the Order if the Court finds necessary after such hearing and (b) construing, enforcing, and administering the terms of this Order as described in paragraphs 20, 21, 23, 24, and 25 below, including the award of attorneys’ fees and costs. 17. The Effective Period of the Court’s jurisdiction with respect to the Sheltering, Canvassing, Accessible Transportation, Emergency Communications, and Power Outages MOUs shall end three years and 60 days following the Effective date, at which point all rights and claims arising under the provisions of this Stipulation and the attached MOUs shall terminate, subject to the rights of the parties set forth in paragraphs 23 and 24 below. 18. The Effective Period of the Court’s jurisdiction with respect to the Coordinator/Panel and High Rise Evacuation MOUs shall end four years and 60 days following the Effective date, at which point all rights and claims arising under the provisions of this Stipulation and the attached MOUs shall terminate, subject to the rights of the parties set forth in paragraphs 20, 24, and 25 below. 19. If Plaintiffs move pursuant to paragraphs 23 and 24 of this Stipulation, jurisdiction shall continue until (a) the motion is decided; (b) if the motion is decided favorably for Plaintiffs, until such time as directed by the Court; or (c) such time as may be extended by the Court in a modification of this Order. At the time of termination of jurisdiction, any right to enforce the terms of this Stipulation shall terminate. 20. During the period of time the Court retains jurisdiction as described above in paragraphs 17 and 18, if Plaintiffs believe that the Defendants are in non-compliance with the substantive requirements of the Order, Plaintiffs may move for contempt or enforcement.
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Plaintiffs’ counsel shall first notify Defendants’ counsel in writing of the nature and specifics of the alleged failure to comply, including reference to any reports submitted pursuant to Section 4 above, upon which such a belief is based, at least 30 days before any motion is made for enforcement of this Order or for contempt against the noncompliant Defendant. Unless otherwise resolved, the parties’ counsel shall meet within the 30 day period following notice to Defendants’ counsel in an attempt to arrive at a resolution of the claims. If no resolution is reached within 30 days from the date of notice, Plaintiffs may move this Court for an order for all appropriate relief against the noncompliant Defendant. 21. In the event of any motion based upon Defendants’ alleged non-compliance with the substantive requirements of the Order, Defendants shall be considered to be in “compliance” therewith unless Plaintiffs establish that Defendants’ failures or omissions to meet the terms of the Order were not minimal or isolated, but were substantial and sufficiently frequent or widespread as to be systemic, such that it constitutes a material violation of the Order. 22. Fees and costs incurred in the resolution of any disputes shall be awarded in accordance with applicable law. SECTION 6: EXTENSION OF THE TERM OF THE STIPULATION 23. If, after review of the final reports described in Sections 7, 8, 9, 10, and 11 above, Plaintiffs believe that Defendants have failed to comply with the terms of these MOUs, Plaintiffs shall have a period of 60 days after the filing of each final report to meet and confer with Defendants and, if necessary, to submit applications to the Court for
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Case 1:11-cv-06690-JMF Document 202 Filed 10/15/14 Page 7 of 55
enforcement of the Order or extension of the Court’s jurisdiction, as described in Section 5. 24. In the event that Plaintiffs move to extend the jurisdiction of this Court of this Order, Plaintiffs will seek an extension of time that is reasonable and appropriate for Defendants to achieve compliance. Prior to the expiration of any period of extended jurisdiction of this Order Plaintiffs may also move for a further extension of the jurisdiction of the Court beyond any extension granted pursuant to a motion made in accordance with paragraph 23 of this Order. No motion for extension of the Court’s jurisdiction made pursuant to this Section shall be made prior to six months before the expiration of the Court’s jurisdiction. SECTION 7: GENERAL PROVISIONS 25. Defendants agree that Plaintiffs are entitled to attorneys’ fees and costs as prevailing parties. The parties agree to attempt to negotiate the amount of such attorneys’ fees and costs. If they are unable to agree on an amount within one hundred twenty (120) days of the Effective Date, Plaintiffs may submit an application for attorneys’ fees and costs to the Court, and Defendants reserve the right to respond to such an application in a manner that is consistent with this paragraph, the Federal Rules of Civil Procedure, and all applicable caselaw and statutes except that they will not dispute Plaintiffs’ entitlement to attorneys’ fees and costs as prevailing parties. Plaintiffs reserve the right to seek attorneys’ fees and costs incurred in monitoring compliance with this Order. 26. All written notifications sent pursuant to this Stipulation and all other correspondence concerning this Stipulation shall be sent by electronic mail or facsimile to the following
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Case 1:11-cv-06690-JMF Document 202 Filed 10/15/14 Page 8 of 55
addresses, or to such other address as the recipients named below shall specify by notice
in writing:
To Plaintiffs’ counsel:
Sid Wolinsky Christine Chuang Julia Pinover Rebecca Williford Disability Rights Advocates
th
2001 Center Street, 4 Floor Berkeley, CA 94704-1204 Fax: (510) 665-8511 swolinsky@dralegal.org cchuang@dralegal.org jpinover@dralegal.org rwilliford@dralegal.org
Dan Brown Sheppard Mullin Richter & Hampton LLP 30 Rockefeller Plaza New York, NY 10112-0015 Fax: (212) 655-1768 dlbrown@sheppardmullin.com
To Defendants’ counsel:
Mark G. Toews Carolyn E. Kruk New York City Law Department 100 Church Street New York, New York 10007 Fax: (212) 356-0871 mtoews@law.nyc.gov ckruk@law.nyc.gov
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27, ll'his Stipulation and Remeclial Order is final and binding upon the parties, their

successors, and their assigns.
Dated: New York, New York
September 30,2014

Sid Wolinsky Christine Chuang
.lulia Pinover
Rebecca Williford Disability Rights Advocates
Attorney for P laint i[/,r 2001 Center Street, 4t" Floo. Berkeley, CA 947 04-1204 (sr0) 66s-8644

ZACHARY W. CARTER
Corporation Counsel of the City of New York
þr At torney De.fendants
100 Church Street
New York. New York 10007
(212) 3s6-0871

By: Christine Chuang

By Mark G. Toews Carolyn E. Kruk

SO ORDBRED:

Dated: October 15 2014

Holi. .lesse M. F-urman United States District Judge

Per the Court's Memorandum and Opinion dated October 2, 2014 (Docket No. 199), this Order is adopted subject to modification - or rejection - following notice to class members and the fairness hearing to be held pursuant to a separate order to be entered today.

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EXHIBIT A

Case 1:11-cv-06690-JMF Document 202 Filed 10/15/14 Page 11 of 55
MEMORANDUM OF UNDERSTANDING Sheltering
Brooklyn Center for Independence of the Disabled v. City of New York 11-cv-6690
This Memorandum of Understanding (MOU) is an interim document intended to
memorialize the agreement in principle of the parties regarding a remedial plan to accommodate
people with disabilities in the City’s emergency sheltering system. The parties intend to submit
this MOU with the negotiated Stipulation of Settlement that will be so-ordered by the Court and
over which the Court will retain jurisdiction. The parties executed this MOU on February 27,
2014 and all dates that run from “execution of this agreement” shall run from the February 27
date. The parties have finalized and re-executed this MOU for purposes of submission to the
Court.
Once specific implementation timetables have been developed with the City agencies
responsible for the various elements of the plan, they will be provided to Plaintiffs’ counsel as
they are developed.
I. DEFINITIONS
Accessible “Accessible” for the purposes of an evacuation center or emergency shelter covered under this agreement means that the physical features of those areas within an existing facility that are being used for emergency sheltering and for the provision of services therein will comply with the applicable provisions of Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 1213112134 and its implementing regulation, 28 C.F.R. pt. 35, such that they allow a person with a disability meaningful access to the emergency sheltering services offered at that facility. Where construction is performed to make a facility suitable for use as an evacuation center or emergency shelter, alteration of the sites will comply with the 2010 ADA Standards for Accessible Design, 28 C.F.R. § 35.151 and 36 C.F.R. pt. 1191, App. B and D (“2010 Standards”). Temporary modifications (either physical or programmatic) during an emergency activation of a facility will be considered appropriate when they effectively address barriers to the use of a facility as an accessible evacuation center or emergency shelter. Existing facilities designated for use for emergency sheltering will be reviewed to assess the level of physical

Case 1:11-cv-06690-JMF Document 202 Filed 10/15/14 Page 12 of 55
accessibility of the path leading to an entrance and of all areas within the site that will be utilized for the evacuation center or emergency shelter operations. Survey and analysis of the level of accessibility will be conducted by utilizing, among other tools, the Department of Justice ADA Toolkit for emergency shelters (“DOJ Toolkit”) and FEMA’s Guidance on Planning for Integration of Functional Needs Support Services in General Population Shelters, as is applicable.
Evacuation Centers Evacuation Centers are the primary entry point for evacuees going to shelters. Individuals are triaged at Evacuation Centers and transported to appropriate shelters. Evacuation Centers also serve as the command element for their specific shelter solar system. Many Evacuation Centers have co-located Hurricane Shelters (discussed in greater detail infra).
Hurricane Shelters
Hurricane Shelters are safe facilities out of the evacuation zones that offer basic services to provide for the health and safety of evacuees for approximately 1-5 days.
Special Medical Needs Shelters A Special Medical Needs (SMN) Shelter is a temporary emergency facility capable of providing care to residents whose medical condition exceeds the capabilities of a Hurricane Shelter, but is not severe enough to require hospitalization or nursing home care.
Long Term Shelters Pre-selected facilities that will continue to provide emergency transitional shelter to those who need it, should the sheltering operation continue for longer than five days.
II. COMMITMENT TO SHELTERING ACCESSIBILITY A. Minimum of 60 Accessible Facilities
1. Within 30 days of the execution of this agreement, Defendants agree to begin the process of implementing the steps described in this MOU, that will result in New York City (“City”) having a minimum of 60 accessible facilities by the end of September 2017. All Evacuation Centers that have co-located shelters will be made accessible or a new accessible facility will be selected to serve as an Evacuation Center with a co-located shelter.1 The minimum of 60 accessible facilities will be distributed throughout all five boroughs; they will be capable of sheltering approximately 120,000 people with disabilities in the event of an
1 The City currently operates 64 Evacuation Centers, the vast majority of which have co-located shelters. If, as a result of the Hurricane Evacuation Study, the City determines that it will reduce the number of Evacuation Centers, all Evacuation Centers with co-located shelters will be made accessible and, if that number is less than 60, an additional number of Hurricane Shelters, sufficient to reach 60 facilities, will also be made accessible and be distributed through the five boroughs.
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emergency. These 60 facilities are general needs facilities and do not include the 8 Special Medical Needs Facilities currently maintained by the City, although some may be co-located with Special Medical Needs Facilities.
2. The implementation period for the City to provide this level of accessible sheltering shall commence within 30 days of the date of execution of this agreement. Defendants, together with the vendor engaged to complete the surveys and the responsible City agencies, will develop an implementation timetable, consistent with the phased approach described below. The timetable and updates on implementation will be provided to Plaintiffs’ counsel.
3. Defendants shall also conduct a formal survey of a sufficient number of facilities to develop a minimum of 60 accessible facilities with a combined capacity to shelter approximately 120,000 people by the end of September 2017. All facilities that will be used as evacuation centers with co-located shelters will be surveyed. These may be current facilities or newly selected facilities. Survey and analysis of the level of accessibility will be conducted by utilizing, among other tools, the Department of Justice ADA Toolkit for emergency shelters (“DOJ Toolkit”) and FEMA’s Guidance on Planning for Integration of Functional Needs Support Services in General Population Shelters, as is applicable. The results of the surveys will be used to determine what modifications, if any, are necessary to make 60 facilities fully accessible by the end of September 2017 when they are used as an emergency shelter. See Section IV for more details on surveys.
4. In addition to conducting such surveys and ensuring that a minimum of 60 accessible facilities, including all Evacuation Centers with co-located shelters, are available for use by the end of September 2017, Defendants will also take steps to provide adequate accessible transportation to transport people with disabilities from an Evacuation Center to an available accessible shelter facility.
5. Defendants will take steps to publicly disseminate information, through multiple means and formats, about the location of Evacuation Centers with accessible co-located shelters.
6. Defendants will develop and provide various types of training for all levels of shelter staff regarding best practices and procedures to provide meaningful access and support to people with disabilities who seek shelter in City facilities during an emergency. Defendants will provide copies of various training to Plaintiffs’ counsel for their review and comment. Plaintiffs’ counsel will provide comments within five business days of receipt, so as to allow for Defendants to move forward expeditiously.
B. Phased-In Transition to Accessibility
1. Defendants will make no fewer than 8 to 14 co-located Evacuation Centers and shelter facilities accessible by October 15, 2014. Defendants shall provide documentation confirming the accessibility of these facilities to Plaintiffs within 10 days of this date. These 8 to 14 accessible facilities will have an estimated capacity of 10,000 to 17,000 people. This is more accessible shelter space than was needed for all individuals seeking shelter during either Hurricane Irene (approximately 9,500 people) or Hurricane Sandy (approximately 6,000 people).
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2. Notwithstanding any other provision of this agreement, Defendants will make a minimum of 60 facilities, including all Evacuation Centers with co-located shelters, accessible by September 30, 2017. These facilities, in total, will be able to provide emergency shelter to approximately 120,000 individuals.
3. The parties agree to discuss further the extent to which future, additional colocated Evacuation Centers and shelters will be placed in accessible facilities.
4. As the phase-in of such accessible facilities is occurring, people with disabilities will be given priority for space in existing accessible shelters. Defendants will also ensure that people with disabilities are provided transportation from an Evacuation Center to an available accessible facility in the event they arrive at an Evacuation Center during an emergency that is full, unable to support their needs, or both.
C. Shelter Needs Analysis
1. Defendants will, at the outset of the implementation period, conduct a Shelter Needs Analysis to determine the capacity and geographic distribution sufficient to meet the anticipated need for meaningful access to the emergency shelter system for people with disabilities. The results and conclusions of this Shelter Needs Analysis will be shared with Plaintiffs and Plaintiffs’ Counsel. The parties agree to discuss further the results and conclusions of the Shelter Needs Analysis.
III. SURVEYING
A. Survey of Facilities for Use as Hurricane Shelters
1. Defendants will survey the barriers and accessibility features of a sufficient number of facilities to be able to develop 60 accessible sites, including all sites where Evacuation Centers have co-located shelters. Facilities selected for surveying may be from City’s existing portfolio of emergency shelters or other facilities that may be deemed more suitable for the purpose of an accessible emergency shelter. The results of the surveys will be analyzed and modifications, where necessary, will be made so that by September 30, 2017, the City has a minimum of 60 facilities accessible to people with disabilities.
2. The City will utilize a qualified firm with experience in architectural accessibility for people with disabilities to conduct any surveys of the selected sites the City proposes to use as Evacuation Centers with co-located shelters and emergency shelters that it has not already surveyed as of the date of execution of this agreement. Defendants will consult with and seek the agreement of Plaintiffs’ counsel as to the specific firm selected on or before October 3, 2014. Plaintiffs will not unreasonably withhold their agreement to the selection.
3. Shelter accessibility surveys will be conducted in accordance with the guidance provided in the existing DOJ Toolkit, as applicable. Defendants shall apply the DOJ Toolkit, as applicable, to any surveys it has already conducted. Defendants will share the results of all surveys they conduct during the implementation period with Plaintiffs’ Counsel.
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4. If the Shelter Needs Analysis indicates a need for more than 60 accessible facilities, Defendants may need to conduct further surveys of additional facilities during the implementation period to ensure there are a sufficient number of accessible facilities.
IV. PROVISIONS IN EVACUATION CENTERS AND SHELTERS
A. Accessible Entrances
1. Every accessible facility provided by Defendants will have an accessible entrance. That entrance will be used as the main entrance to that accessible facility. Signage and other appropriate measures will be positioned to indicate where this accessible entrance is located when that facility is being used as an Evacuation Center and/or shelter.
B. Amenities
1. Every accessible Evacuation Center and/or shelter provided by Defendants will have the capability to store medication requiring refrigeration and be equipped with power strips (for charging or using mobility and medical devices).
2. Provisions for providing back-up power (i.e. quick connect installation) will require a longer implementation timetable than that proposed for shelter accessibility surveying and construction. Defendants will assess the current back-up power capabilities during the site survey process, and for facilities deemed accessible or selected for construction to become accessible, Defendants will develop a separate timetable for back-up power implementation and installation at these sites. Defendants will report this timetable to Plaintiffs’ counsel.
3. Defendants’ reserve supplies shall include sufficient numbers of raised toilet seats, accessible cots, mobility aids (canes, crutches, manual wheelchairs), basic medical supplies, and multi-plug extension cords, so that any person with a disability staying in one of Defendants’ Evacuation Centers and/or shelters may access basic facilities for hygiene and personal maintenance. Defendants agree to assess the need for other supplies, such as handheld showers, accessible medical equipment (accessible examination tables at SMN shelters), and different types of communication boards, such as electronic communication boards.
4. Every accessible Evacuation Center and shelter facility will be provided with a “way finding kit” to assist people with disabilities in utilizing that facility. Way finding kits will be piloted in accessible shelters during the initial phase of implementation in order to determine the most efficient method of assisting shelterees in locating the various areas of the emergency shelter.
5. Defendants will provide either CART (remote translation services) or ASL interpretation services for every accessible facility.
6. Defendants’ shelter staffing plans will provide that in every co-located Evacuation Center and shelter facility an Access and Functional Needs Coordinator (“AFNC”) will oversee
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all accessibility-related concerns and programs at that facility. All AFNCs will receive training so that they will be able to work to accommodate people with disabilities at facilities during emergency sheltering. During the implementation period AFNCs will initially be assigned to accessible facilities. Defendants will work with partner agencies to develop a reporting structure for AFNCs so that they can work effectively.
7. Defendants will develop training for AFNCs and share it with Plaintiffs’ counsel for their review and comment. Plaintiffs’ counsel will provide comments within five business days of receipt, so as to allow for Defendants to move forward expeditiously.
C. Signage
1. Every accessible co-located Evacuation Center and shelter facility will provide accessible signage regarding the layout of the facility and the location of amenities such as drop off locations, restrooms, food, entrances, exits, and sleeping facilities in readily noticeable locations, including signage in six languages, Braille, and display pictograms.
D. Standard Operating Procedure Checklist
1. Defendants will create, provide, and utilize a checklist at each of their emergency Evacuation Centers and shelters that provides standard set-up and operating procedures for staff and volunteers in assisting people with disabilities utilizing such facilities. Defendants will provide that checklist to Plaintiffs’ counsel for their review and comment. Plaintiffs will provide comments within 5 business days. Should any updates be made to the checklist during the implementation period, the updates will be provided to the Plaintiffs’ counsel.
V. TRANSPORTATION, OUTREACH, AND TRAINING
A. Transportation
1. Prior to the conclusion of the implementation period, while Defendants are still working to make 100% of their Evacuation Centers with co-located shelters accessible, Defendants will provide accessible transportation to transport people with disabilities from the Evacuation Center they arrive at to an available accessible facility, in the event they arrive at a facility that is either full, unable to support their needs, or both.
B. Providing Information Regarding Accessible Shelters
1. Defendants will disseminate information via accessible means to the public regarding the locations of all accessible Evacuation Centers with co-located shelters.
2. Defendants will keep a database of information regarding the accessible features at facilities that have been surveyed. Architectural issues that may create a barrier to accessibility at a particular shelter will be noted in the database.
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3. Information about which Evacuation Centers are accessible will be made available to the public. Appropriate shelter staff will be able to determine which shelters and Evacuation Centers in their solar system are accessible.
4. Defendants will continue to develop and implement a range of training regarding providing meaningful access for people with disabilities in emergency shelters for all staff and volunteers working at their emergency Evacuation Center and shelter facilities. Copies of relevant training will be shared with Plaintiffs’ counsel for their review and comment. Plaintiffs’ counsel will provide comments within five days of receipt, so as to allow for Defendants to move forward expeditiously.
VI. IMPLEMENTATION REPORTING TO PLAINTIFFS’ COUNSEL
A. This MOU encompasses the relevant agreements reached by the parties as of the date of its execution. Defendants will provide progress reports during implementation to Plaintiffs’ counsel on an agreed upon schedule as to the policies, practices, and procedures that are developed to provide meaningful access to their emergency shelter program for people with disabilities. Defendants will provide any documents relevant to the progress of implementation including results of the accessibility surveys, report on the incorporation of survey results into the City’s database, relevant checklists, protocols, and training to Plaintiffs’ counsel for their review and comment. The parties will develop a time frame for the provision of Plaintiffs’ comments to Defendants.
B. As noted in the opening paragraph of this Agreement, this document represents an interim agreement on a remedial plan for the City’s emergency sheltering system. The Stipulation of Settlement will provide for the continuing jurisdiction of the Court to enforce the terms of this agreement.
C. Defendants agree to produce periodic reports in an agreed upon format, time frame, and frequency to Plaintiffs as reflected in the negotiated Stipulation of Settlement.
VII. GOOD FAITH A. The parties agree to execute the terms of this MOU in good faith. B. The parties further agree that they will make best efforts to resolve any disagreements arising from this MOU.
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Case 1:11-cv-06690-JMF Document 202 Filed 10/15/14 Page 18 of 55
DATE: SepternberÆ, 2ol4
Undersigned: By:
Christine Chuang
DISABILITY RIGHTS ADVOCATES Attomeys for Plaintiffs
By: Mark Toews Senior Counsel Attorney for Þefendants
On behalf of: ZACHARY W. CARTER Corporation Counsel of the City of New York Attorney for Defendants 100 Church Sffeet, Room 2-106 New York, New York 10007 (2r2) 356-0871
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Case 1:11-cv-06690-JMF Document 202 Filed 10/15/14 Page 19 of 55
EXHIBIT B

Case 1:11-cv-06690-JMF Document 202 Filed 10/15/14 Page 20 of 55
MEMORANDUM OF UNDERSTANDING Brooklyn Center for Independence of the Disabled v. City of New York
11-cv-6690 Post-Emergency Canvassing Operational Plan
This Memorandum of Understanding (MOU) is an interim document intended to memorialize the agreement in principle of the parties regarding the establishment of a Post-Emergency Canvassing Operation (PECO) plan that would rapidly survey populations after a disaster to determine critical needs and refer those needs to appropriate partners for resolution. The parties intend to submit this MOU with the negotiated Stipulation of Settlement that will be so-ordered by the Court and over which the Court will retain jurisdiction. The parties executed this MOU on August 8, 2014 and all dates that run from “execution of this agreement” shall run from the August 8 date. The parties have finalized and re-executed this MOU for purposes of submission to the Court.
Once specific implementation timetables have been developed with the City agencies responsible for the various elements of the plan, they will be provided to Plaintiffs’ counsel as they are developed.
The parties agree on the following definition of “canvassing”: Canvassing is an operation meant to rapidly survey populations after a disaster to determine critical needs (i.e. for water, food, evacuation, power, and medical care) and refer those needs to appropriate partners for resolution. The canvassing and referral to appropriate partners will provide access to services that the City provides post-emergency to, among others, individuals who are unable or who have difficulty, because of their disability, to access services the City is coordinating.
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1. CREATION OF POST-EMERGENCY CANVASSING OPERATION (PECO) PLAN
a. Defendants will create a canvassing operation staffed and led by employees from multiple City agencies. This is the Post-Emergency Canvassing Operation or PECO. This canvassing operation will facilitate evacuation when requested and survey for critical needs such as water, food, power, and medical care. PECO is intended for disasters that significantly impact more than 5,000 households for over 48 hours.
b. In situations where the impact of the emergency is less significant or for fewer households, Defendants will employ or initiate its standard protocols to provide assistance to people with disabilities.
c. The PECO plan will detail the specific operational steps to be taken by the City agencies in the event of an emergency requiring this canvassing operation. The PECO plan will define roles and responsibilities of various agencies tasked with responsibilities under the plan and establish time frames. Plaintiffs will be provided with an opportunity to comment on the plan within 15 days of receipt. Defendants agree to meaningfully consider Plaintiffs’ comments, incorporate them where practical and consistent with the goals of this MOU, and report back to Plaintiffs regarding which comments were accepted or rejected, and the reasons why.
2. CANVASSING SERVICES FOR PEOPLE WITH DISABILITIES
This section describes the services Defendants agree to provide for people with disabilities after a disaster.
a. The canvassing plan will have a three-year development cycle, which will begin 30 days from the execution of this agreement. Defendants will set milestones and benchmarks during that development cycle that can be used to assess the progress of plan development. These milestones will also articulate which portions of this plan are possible to implement prior to the end of the development cycle.
b. This canvassing operation is targeted at those who did not evacuate and may need assistance to maintain their independence in a post-disaster scenario.
c. This canvassing operation will begin in an area affected by the disaster after search and rescue operations in that area have concluded.
d. In an emergency event that significantly impacts more than 5,000 households for over 48 hours, Defendants will mobilize an executive level Needs Assessment Interagency Task Force immediately upon declaring a
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Case 1:11-cv-06690-JMF Document 202 Filed 10/15/14 Page 22 of 55
disaster to oversee implementation of the outreach plan. Defendants will develop guidance and identify membership for the senior executives that will make up the Needs Assessment Interagency Task Force, including triggers to convene that group, operations, and information gathering activities they would undertake to locate and serve people with disabilities and access and functional needs. Disability literacy training will be provided for members of the Task Force as detailed in section 4 below.
e. The Needs Assessment Interagency Task Force will determine the mobilization parameters and duration for these and related efforts to locate people with disabilities. The Task Force is an executive level task force that will include the Disability and Access and Functional Needs (DAFN)/Settlement Coordinator or another person with disability expertise and with similar knowledge and authority.
f. The Needs Assessment Interagency Task Force will be involved in the implementation of PECO, including but not limited to those steps described in this MOU. The Task Force shall have the necessary protocols, tools, and training in place in advance that will require activation based on planning triggers.
g. Defendants will create an incident management team of City staff to provide ground-level tactical management of widespread canvassing operations. This group will receive training in disability literacy, communications, and the accommodations available to people with disabilities during an emergency as detailed in section 4 below.
h. Defendants will create an Operational Plan for Outreach to People with Disabilities and Access and Functional Needs, including canvassing operations, to describe triggers and strategies needed to complete this operation. The Needs Assessment Interagency Task Force and Plaintiffs will review and provide input on the Operational Plan. Defendants agree to meaningfully consider Plaintiffs’ comments, incorporate them where practical and consistent with the goals of this MOU, and report back to Plaintiffs regarding which comments were accepted or rejected, and the reasons why.
i. Defendants will agree on a sector-based organization of the City in order to coordinate outreach efforts, based on police precincts, community boards, zip codes, or similar mechanisms.
j. Canvassers will have a mobile survey tool to input service requests relating to issues arising from: lack of food; lack of water; lack of electricity; the need for medical care, consumable medical supplies, prescriptions, or durable medical equipment; the need for relocation to a cooled or heated environment; the need for transportation to critical care
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Case 1:11-cv-06690-JMF Document 202 Filed 10/15/14 Page 23 of 55
or sheltering facilities; or the need for the assistance of a social worker. Defendants will create an approved canvassing survey with participation by the DAFN/Settlement Coordinator and input from Plaintiffs. The plan will articulate the data with regards to needs that will be included and will articulate how the data collected can be used most efficiently.
k. Canvassers will collect data that will be integrated at a central data center for referral purposes. EMS will be available to assist at canvassing sites to meet urgent medical needs. Defendants will build planning relationships with community organizations that have different resources and skill sets that may be requested during emergencies. These planning relationships will be detailed in the Operational Plan for Canvassing as they are developed.
l. Defendants will create an Operational Plan for a Data Task Force that will integrate data collected from canvassing efforts. Data collected will include disability data, preferably the 6 American Community Survey questions. The plan will articulate additional data to be collected and tracked by this Task Force and will also articulate ways in which the data collected may inform emergency responses.
m. Defendants will staff and train canvassing teams made up of staff from City agencies based on agreements with each Agency Commissioner. These canvassing teams will receive training in disability literacy, effective communication, and the accommodations available during disasters as detailed in section 4 below. Pre-written requests for surge support from outside entities (e.g. New York State) will also be formalized for additional staffing and resources in certain types of disasters, which will include provisions for disability literacy training, effective communications, and accommodations for additional staff.
3. TARGETED OUTREACH TO PEOPLE WITH DISABILITIES DURING CANVASSING OPERATIONS
a. Defendants will conduct outreach to people with disabilities via service providers using an enhanced Advance Warning System (“AWS”) or similar functionality that allows for bidirectional communication and that includes information specific to people with disabilities related to sheltering in place, evacuation, shelter, transportation, power, and other emergency needs.
b. Following the first implementation of the enhanced AWS, Defendants will conduct an assessment of AWS to determine whether additional enhancements or improvements are necessary. As part of this assessment, Defendants will make clear through messaging the role of AWS to service providers, assess the effectiveness of AWS, and review and assess the
4

Case 1:11-cv-06690-JMF Document 202 Filed 10/15/14 Page 24 of 55
content of the communication, with the goal of improving AWS to provide meaningful access for people with disabilities. Defendants will also assess the capacity of the organizations involved in AWS to individually reach people with disabilities.
c. Plaintiffs will be provided with the opportunity to comment on the content of pre-incident templates for AWS messages and on any proposed enhancements or improvements identified as a result of the assessment conducted pursuant to section 3(b) above, within 15 days of receipt. Defendants agree to meaningfully consider Plaintiffs’ comments, incorporate them where practical and consistent with the goals of this MOU, and report back to Plaintiffs regarding which comments were accepted or rejected, and the reasons why.
d. Because many people with disabilities are not tied to specific programs, Defendants will also undertake broader efforts to locate and address their needs, such as the below.
e. Defendants will create a method to compile information at the time of an incident concerning populations of people with disabilities from various known datasets of contracted City service providers and national payer datasets (such as Medicare) (in compliance with HIPAA privacy laws as applicable) in order to target efforts more effectively with the most current data after a disaster based on specific conditions such as type of disability and geography.
f. Defendants will develop mechanisms to enhance providers’ ability to reach out to their known lists of clients through phone, email, and textbased mechanisms. Defendants will consult with Plaintiffs regarding mechanisms that will enhance providers’ ability to conduct such outreach.
g. Defendants will develop the capability to support outreach to lists of vulnerable populations through phone banks or other methods to locate people with disabilities and access and functional needs and to facilitate responses to requests for evacuation assistance or determine whether someone has a need for food, water, power, medical services or other need. Defendants will take steps to provide accessible communications through this supportive outreach. Defendants will use best efforts to maintain confidentiality.
h. Defendants will develop the capability to maintain a list of building-level service and occupancy status for non-red-tagged multi-unit residential buildings to inform prioritization of unit-level canvassing efforts, referrals to emergency services, relocation to shelters, and public and building owner outreach. This list will be updated on an annual basis and will
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Case 1:11-cv-06690-JMF Document 202 Filed 10/15/14 Page 25 of 55
remain confidential, to be used solely by Defendants for the purposes of emergency planning and response.
i. Defendants will work with Plaintiffs to develop other methods of targeted outreach to people with disabilities and access and functional needs, such as through mapping/GIS systems.
j. Defendants will create a Residential Building Assessment program that will maintain and update a list of multi-unit residential buildings that are potentially affected by loss of essential building services post-disaster. This program is intended to assess the post-disaster state of buildings with respect to building safety and services (e.g. power, water, heat) in order to determine whether buildings are safe for habitation after a disaster.
k. Defendants will create a network of Neighborhood Canvassing Assembly Points for canvassing people with disabilities. These Canvassing Assembly Points will serve as bases for joint City and community canvassing operations and are intended as meeting points for handing out canvassing assignments to community groups, not as a place for receipt of services by the public.
4. TRAINING
a. Training for City employees who will take part in PECO will include training on the needs of people with disabilities and on disability literacy, including communication with people with disabilities. Once the training is developed, it will be shared with Plaintiffs for review and comment. Plaintiffs will provide comments within 15 days unless the parties agree otherwise. Defendants agree to meaningfully consider Plaintiffs’ comments, incorporate them where practical and consistent with the goals of this MOU, and report back to Plaintiffs regarding which comments were accepted or rejected, and the reasons why.
b. There are many types of volunteer groups involved in canvassing operations. Known groups of volunteers who participate in City emergency planning will be offered training similar to that offered to City employees on a recurring basis. “Just-In-Time” training will be developed and delivered at time of incident to other volunteer groups who spontaneously decide to assist.
c. Defendants will develop this “Just-in-Time” training for spontaneous groups to partner in canvassing efforts, depending on scale, by checking in at a neighborhood hub for canvassing and receiving defined mission assignments that fit into the City’s sector-based canvassing. This training will include disability literacy, asking and answering disability-related questions, identifying the needs of people with disabilities, and the
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accommodations available during emergency situations for people with disabilities. A priority will be given, to the extent possible, to pairing untrained canvassers with trained canvassers during an emergency. Once this training is developed, a copy with be shared with Plaintiffs for their review and comment. Plaintiffs will provide comments within 15 days of receipt, unless the parties agree otherwise. Defendants agree to meaningfully consider Plaintiffs’ comments, incorporate those where practical and consistent with the goals of this MOU, and report back to Plaintiffs regarding which comments were accepted or rejected, and the reasons why.
5. PHASED IMPLEMENTATION
Although the project as a whole will begin with the execution of this agreement, not all tasks listed below can start at that time because of project dependencies. These deadlines are subject to revision with the agreement by both parties and will be finalized in a subsequent stipulation of settlement.
a. Within 30 days of the execution of this agreement, Defendants agree to begin the process of implementing the steps described in this MOU, that will result in the City having increased ability by Summer 2017 to reach out to people with disabilities after a disaster, including canvassing operations. Defendants, together with the responsible City agencies, will develop an implementation timetable for the development of the items set forth in this MOU, consistent with the phased approach described below. The timetable and updates on implementation will be provided to Plaintiffs’ counsel.
b. Defendants will begin developing an Operational Plan for small-scale canvassing. This will be finalized by March 1, 2015.
c. Defendants will begin working to create a City agreement for City staff participation in canvassing and an Incident Management Team, which shall include the identifying, interviewing, and hiring of additional staff as needed. This will be finalized by April 30, 2015.
d. Defendants will begin developing an initial training for City staff for canvassing and Incident Management Teams by Coastal Storm season 2015. This will be finalized in time to administer training by the August 2015.
e. Defendants will start to create an electronic platform for citywide canvassing. This platform will be in place by August 2015. Defendants will start to create an Operational Plan for Residential Building Assessment by Coastal Storm Season 2015. This plan will be in place by August 2015.
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Case 1:11-cv-06690-JMF Document 202 Filed 10/15/14 Page 27 of 55

i

Det'endants will start to creatc a sector-based hub system that parlners with

community groups for canvassing. This sector-based hub systern will be in

place to be utilized by August 201ó,

g

Def'endants will have the ability to query and report on known populations

of people with disabilitics and access and functional needs by August

2016.

h

Based on implementation of this agreemcnt, Defendants will have a fully

functional lncident Management Team and Staffing capacity for large-

scale canvassing by August 2017,

I

Defendants will have exercises to test components of the fully completed

plan with City staff ancl community groups serving and representing

people with disabilities by August 2017.

DATE: Septernb)eI-$014

Undersigned:

By
DISABILITY RIGHTS ADVOCATES Attomeys for Pl ainti ffs

By: Mark Toews Senior Counsel Attorney for Defendants
On behalf of: ZACHARY V/. CARTER Corporation Counsel of the City of'New York Attorney for Defendants I 00 Church Street, Room 2- 106 New York, New York 10007 (2r2) 3s6-0871

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Case 1:11-cv-06690-JMF Document 202 Filed 10/15/14 Page 28 of 55
EXHIBIT C

Case 1:11-cv-06690-JMF Document 202 Filed 10/15/14 Page 29 of 55
MEMORANDUM OF UNDERSTANDING Brooklyn Center for Independence of the Disabled v. City of New York
11-cv-6690
Accessible Transportation
This Memorandum of Understanding (MOU) is an interim document intended to memorialize the agreement in principle of the parties regarding a remedial plan to provide accessible transportation during evacuations. The parties intend to submit this MOU with the negotiated Stipulation of Settlement that will be so-ordered by the Court and over which the Court will retain jurisdiction. The parties executed this MOU on August 8, 2014 and all dates that run from “execution of this agreement” shall run from the August 8 date. The parties have finalized and re-executed this MOU for purposes of submission to the Court.
Once specific implementation timetables have been developed with the City Agencies responsible for the various elements of the plan, they will be provided to Plaintiffs’ counsel. I. IDENTIFY RESOURCES AND NEED
Prior to further developing its plans for accessible transportation, the City will develop an inventory of accessible vehicles and conduct a needs analysis.
A. Inventory of Accessible Vehicles For Use in Emergencies
1. The City will develop an inventory of vehicles with accessible features that may be available for use in an emergency through various agencies. Information will include the number of vehicles, the capacity of the vehicles for individuals using wheel chairs, and the number of appropriately licensed drivers. Information will also include whether the vehicles are owned by the agencies or are available through existing contracts. The provisions of this Section will be completed by August 1, 2015 (i.e., the 2015 hurricane season).
a. By November 30, 2014, the City shall compile a complete list of agencies and transportation providers to contact in order to develop the inventory. The list will include mayoral agencies, Department of Citywide Administrative Services (DCAS), the Department of Education (DOE), Metropolitan Transportation Authority (MTA), MTA Access-a-Ride, and Taxi and Limousine Commission (TLC). The City will provide this list to Plaintiffs within 5 days of completion.
b. By January 31, 2015, the City will create a list of defined terms to be used in compiling the information gathered from the various agencies and transportation providers. The City will provide this list to Plaintiffs within 5 days of completion and agrees to consider the input of Plaintiffs in the creation of the defined terms. Plaintiffs will provide such input within 5 days of receipt. The City agrees to

Case 1:11-cv-06690-JMF Document 202 Filed 10/15/14 Page 30 of 55
meaningfully consider Plaintiffs’ input, incorporate those suggestions where practical and consistent with the goals of this MOU, and report back to Plaintiffs regarding which comments were accepted or rejected, and the reasons why.
2. The City will update the Citywide Asset Logistics Management system with the number of vehicles with accessible features that could support evacuation for people with disabilities once the inventory is complete. Thereafter, the City will annually update this database.
B. Needs Analysis
1. The City will conduct a needs analysis that includes estimating the demand for Cityprovided accessible evacuation services. This needs analysis includes collecting aggregate information on the numbers of people with disabilities that affect their ability to use public transportation and areas where they live, in order to assess the potential need so transportation resources can be effectively allocated during the evacuation phase of the emergency event. An aggregation and review of data reflecting paratransit ridership will be one of the bases, among others, for the analysis. The City agrees to consult with Plaintiffs regarding the process and form of the needs analysis on or before January 31, 2015, including sources of existing information that might be useful in assessing the transportation needs of people with disabilities. The City agrees to meaningfully consider Plaintiffs’ comments, incorporate those suggestions where practical and consistent with the goals of this MOU, and report back to Plaintiffs regarding which comments were accepted or rejected, and the reasons why.
a. If the City determines that the hiring of a vendor to complete the needs analysis is necessary, by August 1, 2015, the City will submit Requests of Proposals for vendors to complete this needs analysis. The City will continue to update the Plaintiffs on the status of the bidding process and the vendor that is ultimately selected.
2. The City agrees to work with City agencies and community based organizations to identify pockets of individuals likely to have functional needs in areas of the City that may be harder to identify.
3. The City agrees to share the results of the needs analysis on or before August 1, 2016, and to consider Plaintiffs’ suggestions and comments. Within 14 days of receiving the results of the needs analysis, Plaintiffs will provide such input and the City agrees to meaningfully consider Plaintiffs’ comments, incorporate those suggestions where practical and consistent with the goals of this MOU, and report back to Plaintiffs regarding which comments were accepted or rejected, and the reasons why.
4. Consistent with the results of the needs analysis, and to the extent that need exists, the City will work to solicit bids or RFPs to establish additional contracts with private companies, including private ambulette companies, livery, and other transportation companies, and/or establish intergovernmental agreements to support the plans and needs that have been identified for accessible emergency transport. The revised accessible transportation plan will include provisions for qualified operators of the vehicles and wheelchair lifts.
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5. Existing federal and state legislated resource request processes, including the interstate Emergency Management Assistance Compact (“EMAC”) and the New York State Intrastate Mutual Aid Program (“IMAP”), provides the City with access to additional accessible transportation resources and trained responders when necessary.
II. TRAINING OF CITY PERSONNEL IN TRANSPORTING PEOPLE WITH DISABILITIES
City personnel directly involved in accessible transportation during pre-storm or forewarned evacuations will be trained on disability literacy, communicating with individuals with sensory and cognitive disabilities, the proper operation of wheelchair lifts, and the proper handling of durable medical equipment. The training will be conducted consistent with and within the parameters of existing civil service (and other applicable) laws and rules. See also High-Rise Evacuation MOU for additional guidance with respect to training relevant to evacuations. The City agrees to provide the training materials to Plaintiffs for input. Plaintiffs agree to provide such input within 14 days. The City agrees to meaningfully consider Plaintiffs’ comments, incorporate those suggestions where practical and consistent with the goals of this MOU, and report back to Plaintiffs regarding which comments were accepted or rejected, and the reasons why.
III. COMMUNICATION REGARDING ACCESSIBLE TRANSPORTATION
A. The City will develop clear and accurate messaging to the disability community about accessible transportation options available during pre-storm or forewarned evacuations, and how and where to access them. These options may include paratransit, MTA, buses, accessible taxis, and ambulettes (depending on the degree of cooperation and the feasibility of working with private entities that provide ambulette service). The City will work with the MTA to reinforce MTA’s messaging concerning prioritization of accessible seats for people with disabilities on MTA buses. After an emergency, the City will work with the MTA to clearly communicate what transportation systems are resumed and extent to which each is accessible.
B. The City will make best efforts to ensure that information conveyed by 311 is accurate and contains information regarding evacuation for persons with disabilities, including where and how to access accessible transportation options during pre-storm or forewarned evacuations. Plaintiffs will have an opportunity to review and comment on the content that 311 caller representatives utilize to provide the above information. Comments will be provided to a yet-to-be designated City contact person within 5 days of receipt. The comment period will occur on or around January 15, 2015.
1. The City will train 311 operators to identify calls relating to emergency requests for evacuation for people with disabilities, including evaluating call takers on call handling procedures with regard to such calls, and will reinforce such training in emergencies to ensure that 311 operators will collaborate with 911 operators to evaluate the caller's needs in accordance with criteria established by OEM, NYPD, and FDNY in determining the appropriate transfer of the call.
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Case 1:11-cv-06690-JMF Document 202 Filed 10/15/14 Page 32 of 55
IV. PARTNER AGENCIES AND PLANNING PARTNERS
A. The City agrees to work with planning partners, such as MTA and TLC, to collaboratively develop the City’s accessible transportation plans for pre-storm or forewarned evacuations. The City agrees to share any plans with Plaintiffs and to consider Plaintiffs’ comments. The City agrees to meaningfully consider Plaintiffs’ comments, incorporate those suggestions where practical and consistent with the goals of this MOU, and report back to Plaintiffs regarding which comments were accepted or rejected, and the reasons why. The accessible transportation plans will define roles and responsibilities when the plans are activated. If the planning partners deem it necessary for the effective and efficient deployment of accessible transportation, the partner agencies will enter into contracts.
B. The City agrees to work with MTA to develop standardized triggers for modifying Access-A-Ride (AAR) services during pre-storm or forewarned evacuations. Depending on the scope and location of the evacuation, this may include suspending the reservation system to permit subscribers in an evacuation zone to order AAR vehicles in order to evacuate or diverting AAR vehicles to specific locations to support evacuation efforts. This may also include establishing specific plans for public communication regarding time-frames for service modifications so as to make clear when AAR service will be available to subscribers to use for personalized trips and when AAR will focus only on transport to evacuation centers. The parties will discuss additional policies and procedures relating to the provision of paratransit services during an emergency, including training for dispatchers. Once the City develops such plans, the City will request MTA’s approval to share these plans with Plaintiffs, who will have an opportunity to comment within 14 days should that request be granted by MTA.
1. The City agrees to make plans to train City personnel to be able to operate accessible transportation vehicles.
2. The City will request MTA to increase staffing for paratransit dispatching during emergencies.
3. City-contracted paratransit dispatchers will be given accurate information about the incident or emergency.
C. The City agrees to work with TLC to determine the number, type, and ownership of accessible taxis that are registered with them. The City will work with TLC with respect to outreach to the fleet owners and potential partnerships with fleet owners.
D. The City agrees to work with the New York City Housing Authority (NYCHA) to collaboratively develop transportation and evacuation plans that address the needs of NYCHA residents. These plans will be aligned with the City’s other emergency plans, such as high-rise evacuation. The City agrees to share any plans developed with NYCHA with Plaintiffs and to consider Plaintiffs’ comments. Plaintiffs will provide any comments within 14 days. The City agrees to meaningfully consider Plaintiffs’ comments, incorporate those suggestions where practical and consistent with the goals of this MOU, and report back to Plaintiffs regarding which comments were accepted or rejected, and the reasons why.
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Case 1:11-cv-06690-JMF Document 202 Filed 10/15/14 Page 33 of 55
E. City agencies tasked with evacuating individuals will work with the Disability and Access and Functional Needs Coordinator and/or other appropriate City personnel to identify the appropriate form of transportation or vehicle to be used to evacuate durable medical equipment and service animals when the pre-storm or forewarned evacuation of a person with a disability is necessary. The individuals at the above City agencies tasked with such duties will have disability literacy training as detailed in Section II. In a situation where it is not practicable to evacuate durable medical equipment, the City agrees to stock and supply certain appropriate durable equipment such as various types of wheelchairs and other mobility aids, or request certain other durable equipment that support daily living activities through the logistical request process or through existing contracts.
V. PLANS RELATING TO TRANSPORTATION DURING EVACUATIONS
A. Using the resources and needs analysis described above, the City will develop plans for the effective deployment of accessible vehicles during notice and no-notice events, which shall be completed on or before August 1, 2017.
B. In notice events, in addition to the planning steps described above, the City and its planning partners will consider and develop various strategies for deployment of accessible vehicles. As with all of the City’s emergency plans, the planning documents will define roles and responsibilities and include strategies for decision-making and criteria for implementation, including identifying areas of high need and which agencies will supply accessible vehicles. The plans will be flexible and scalable so that they can be quickly adapted to the scope and location of the emergency. These strategies may include:
1. Whether, and under what circumstances, accessible vehicles may be deployed to pre-determined locations to support evacuation efforts.
2. Specific strategies for the effective use of paratransit vehicles as noted above.
3. Strategies for deployment of accessible vehicles during a no-notice event. Such strategies may include staging of accessible transportation at meeting locations, diversion of paratransit and accessible taxis to support evacuation, and institution of shuttle routes.
4. To the extent practicable, staging areas for accessible transportation will be in accessible locations. Note these locations are likely to be outdoor gathering places and are not expected to have restroom facilities or other amenities.
5. Communicating in advance of an evacuation notice to people with disabilities and access and functional needs certain emergency-related information in order to accommodate their needs.
C. Working with partner agencies to allow for accessible transportation services, such as MTA Access-A-Ride, to be resumed as soon as possible after an emergency.
D. To the extent there are frozen zones after a disaster and it is safe to do so, the City will develop plans to relocate people with disabilities who have not evacuated. Such a plan will
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Case 1:11-cv-06690-JMF Document 202 Filed 10/15/14 Page 34 of 55
include a mechanism for accessible vehicles to reach the individuals in the frozen zone. See ulso the PECO/Canvassing plan.
E. To thc extent possible duling a pre-event evacuation, the City will use best sflbrts:
l. not to separate people with disabilities from their caregivers, rnobility devices,
other durable medicaì equiprnent and/or service animals during an evacuation; and
2. to reunite people with disabilities with their durable meclical equipment, mobility
devices, and service animals should they become separated during an emergency,
F. The City will review ancl revise the Homebound Ëvacuation Operation ("IlËO") to
integrate all steps and provisions set f:brth and agrecd upon by the parties in this and other plans discussed in settlernent. All changes to HEO or any similar program will be shared with Plaintiffs, who will provide comments within l4 days. The City agrees to meaningfully consider' PlaintifTi' comments, incorporate those suggestions where practical and consistent with the goals of this MOU, and report back to Plaintiffs regarding which comments were accepted or rejeoted, and the reasons why,
DATE: Septemberflroro
Undersigned:
By Christine Chuang DISABILITY RIGHTS ADVOCATES Attomeys lbr Plaintiffs
By: Mark Toews Senior Counsel Attorney for Defendants
On behalf of: ZACHARY W. CARTER Coqroration Counsel of the City of New York Attorney lor Defendants 100 Church Street, Room 2-106
New York, New York 10007
(212) 3s6-0871
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Case 1:11-cv-06690-JMF Document 202 Filed 10/15/14 Page 35 of 55
EXHIBIT D

Case 1:11-cv-06690-JMF Document 202 Filed 10/15/14 Page 36 of 55
MEMORANDUM OF UNDERSTANDING Brooklyn Center for Independence of the Disabled v. City of New York
11-cv-6690 Emergency Communications
This Memorandum of Understanding (MOU) is an interim document intended to
memorialize the agreement of the parties regarding additional steps to be taken for people with
disabilities to participate in and benefit from the City’s emergency communications programs
and activities as set forth in its plans. The parties intend to submit this MOU with the negotiated
Stipulation of Settlement that will be so-ordered by the Court and over which the Court will
retain jurisdiction.
I. ACCESSIBLE COMMUNICATION AT RESOURCE CENTERS
A. The City will revise the relevant portions of its emergency plans to reflect the following procedures relating to accessible communication at Disaster Assistance Service Centers (DASC):
1. Procedure for requesting and guidelines for creating alternative formats (Braille, large print, audio tape) of certain City-generated written materials provided at DASCs;
2. Procedure for requesting and guidelines for providing the services of a Sign Language interpreter and a Certified Deaf Interpreter (CDI). [DASCs will provide Sign Language interpretation services by providing on-site interpretation services or interpretation services via laptop (or other device) using Skype (or similar program) when appropriate];
3. Provision of signage concerning the availability of reasonable accommodations and auxiliary aids and services, and how to request one, including identification of the DASC Manager on-site.
B. The City will modify its “Universal Intake Form” used at DASCs to include questions that allow DASC staff to assess the type of assistance and/or accommodation that a person with a disability desires and/or requires. The City will allow Plaintiffs the opportunity to comment (within 14 days of receipt) on the City’s proposed disability-related questions.

Case 1:11-cv-06690-JMF Document 202 Filed 10/15/14 Page 37 of 55
C. The City will offer training for DASC staff regarding disability literacy and effective communication with people with disabilities.
DATE: October 14, 2014 Undersigned:
By: __________________________________ Christine Chuang DISABILITY RIGHTS ADVOCATES Attorneys for Plaintiffs
By: ______ ____________________________ Mark Toews Senior Counsel Attorney for Defendants
On behalf of: ZACHARY W. CARTER Corporation Counsel of the City of New York Attorney for Defendants 100 Church Street, Room 2-106 New York, New York 10007 (212) 356-0871
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Case 1:11-cv-06690-JMF Document 202 Filed 10/15/14 Page 38 of 55
EXHIBIT E

Case 1:11-cv-06690-JMF Document 202 Filed 10/15/14 Page 39 of 55
MEMORANDUM OF UNDERSTANDING Brooklyn Center for Independence of the Disabled v. City of New York
11-cv-6690 Power Outages
This Memorandum of Understanding (MOU) is an interim document intended to
memorialize the agreement of the parties regarding additional steps to be taken for people with
disabilities to participate in and benefit from the City’s power usage and outage services and
activities as set forth in its plans. The parties intend to submit this MOU with the negotiated
Stipulation of Settlement that will be so-ordered by the Court and over which the Court will
retain jurisdiction.
I. POWER-RELATED NEEDS
A. All City-operated DASCs will be equipped with power strips that can be used by DASC clients for charging. People with disabilities who need to charge equipment shall be given priority for use. Should circumstances require provision of additional power strips, the City will request them through the standard requisition process.
B. The City will disseminate information to AWS service providers and the Disability Community Advisory Panel regarding how to enroll in Notify NYC and Con Edison’s LSE and Medical Hardship programs.
C. The City will work with the Con Edison representative present during an EOC activation to (1) maintain situational awareness concerning the status of ConEd’s activation and implementation of its LSE and Medical Hardship program; (2) facilitate ConEd messaging regarding power usage; and (3) assess the powerrelated needs of critical facilities.
D. The City will relay public messaging (through all appropriate media including Notify NYC and websites) from utility companies related to potential large scale electricity outages associated with preemptive, network-level shut downs as soon as possible upon receipt. The City will provide such messaging in situations when the City receives that information from the utility company at least 60 minutes in advance of the outage (in order to allow the City sufficient time to relay the message). The City will continue to disseminate through already existing communication channels, including AWS, messaging concerning what poweroutage related precautions to take in advance of a potential power outage.

Case 1:11-cv-06690-JMF Document 202 Filed 10/15/14 Page 40 of 55
DATE: October 14, 2014 Undersigned:
By: __________________________________ Christine Chuang DISABILITY RIGHTS ADVOCATES Attorneys for Plaintiffs
By: __________________________________ Mark Toews Senior Counsel Attorney for Defendants
On behalf of: ZACHARY W. CARTER Corporation Counsel of the City of New York Attorney for Defendants 100 Church Street, Room 2-106 New York, New York 10007 (212) 356-0871
2

Case 1:11-cv-06690-JMF Document 202 Filed 10/15/14 Page 41 of 55
EXHIBIT F

Case 1:11-cv-06690-JMF Document 202 Filed 10/15/14 Page 42 of 55
MEMORANDUM OF UNDERSTANDING
Brooklyn Center for Independence of the Disabled v. City of New York 11-cv-6690
Disability and Access and Functional Needs Coordinator and Disability Community Advisory Panel
This Memorandum of Understanding (MOU) is an interim document intended to memorialize the agreement of the parties with regard to the hiring of a Disability and Access and Functional Needs (DAFN) Coordinator and the creation of a Disability Community Panel. The parties intend to submit this MOU with the negotiated Stipulation of Settlement that will be soordered by the Court and over which the Court will retain jurisdiction. The parties executed this MOU on August 8, 2014 and all dates that run from “execution of this agreement” shall run from the August 8 date. The parties have finalized and re-executed this MOU for purposes of submission to the Court.
I. Disability and Access & Functional Needs /Settlement Coordinator
A. The City will hire an individual who will serve as the City’s Disability and Access and Functional Needs (DAFN) Coordinator and the City’s Settlement Coordinator (the “Coordinator”).
1. The Coordinator will work at OEM alongside of and in coordination with the OEM Deputy Commissioner for Planning, and will report to a high ranking City official, to be determined by Commissioner Esposito, and shall be the lead City employee responsible for seeing that the City’s emergency plans meet the needs of people with disabilities and access and functional needs so as to comply with federal and state law.
2. The Coordinator shall have the necessary authority, staff, and resources to carry out his or her duties, including the authority to work directly and coordinate with other agencies and personnel in the City responsible for all aspects of emergency planning, response, and recovery.
3. The Coordinator will receive training on Emergency Operations Center (EOC) protocols, Emergency Support Functions. Within these protocols and functions, the Coordinator will be the Point of Contact for disability and access and functional needs matters that arise during a major emergency and the recovery phase. Should this individual be 1

Case 1:11-cv-06690-JMF Document 202 Filed 10/15/14 Page 43 of 55
temporarily unavailable at any time during a major emergency event or during the recovery phase after an emergency event, he/she shall designate a Point of Contact in his/her absence.
B. The duties of the Coordinator will include:
1. Responsibility for the implementation of the Stipulation of Settlement, including but not limited to:
a) Seeing that deadlines set forth by the parties in the Settlement are met;
b) Creation and implementation of agreed-upon protocols, policies, and procedures regarding the terms of the Stipulation of Settlement;
c) Conducting appropriate site inspections, reviewing documents, and meeting with both City personnel and community organizations; and
d) Completing and submitting reports on the progress made by the City in implementing the terms of the Stipulation of Settlement to Plaintiffs as further discussed in its Reporting provisions.
2. Participating in both the review of existing emergency plans with respect to integrating the needs of people with disabilities and access and functional needs and the development, as necessary, of any new emergency plans with respect to integrating the needs of people with disabilities and access and functional needs.
3. Outreach to the disability community, including serving on the Disability Community Advisory Panel and chairing the quarterly meetings of the Panel.
4. Reporting to the Law Department on the progress of the Settlement implementation.
5. Overseeing the implementation of disability-related plans during activation of the EOC, or whatever equivalent operation command center is in place during an emergency activation.
6. Coordinating with a designated point person at key relevant agencies in the EOC.
C. Where the scope of the activation requires it, the City agrees to have present in the EOC, during emergency activations, a designated liaison who will have the
2

Case 1:11-cv-06690-JMF Document 202 Filed 10/15/14 Page 44 of 55
training and knowledge about current plans relating to people with disabilities whose duties will include:
1. Obtaining the necessary disability-related resources to the extent possible through existing EOC logistics protocols;
2. Working with the Coordinator to ensure that disability-related needs are met during response and recovery operations.
D. Upon the execution of the Stipulation of Settlement, OEM will take steps to hire the Coordinator as expeditiously as possible and will apprise Plaintiffs’ counsel of the anticipated time frame for doing so. OEM will solicit and consider recommendations from Plaintiffs’ counsel for the position and will solicit comments from Plaintiffs regarding potential candidates for the position. However, OEM will have the final decision regarding the Coordinator, and to the extent City Hall requires such, final approval of the candidate.
E. Commencing sixty days after execution of this agreement, OEM will begin the process of hiring additional DAFN Coordinator (DAFNC) staff or staffers for its agency who, in tandem with existing OEM personnel and the Coordinator will:
1. Support the Coordinator towards seeing that the coordinated emergency planning of the City meets the needs of persons with disabilities and access and functional needs;
2. Work to revise relevant portions of emergency plans, and work directly with and coordinate with other City agency DAFNC staff on all aspects of emergency planning, before, during, and after activation of the EOC.
F. (Phased Implementation): The City will begin working to create DAFNC positions at key City agencies whose programs and support are integral to an emergency response, so as to provide for the needs of people with disabilities preand post-disaster. The City will provide Plaintiffs’ counsel with implementation timetables as they are developed. These personnel will:
1. Train on EOC’s processes and the role of their agency in emergency response.
2. Participate in both the review of existing emergency plans with respect to integrating the needs of people with disabilities and access and functional needs and the development, as necessary, of any new emergency plans with respect to integrating the needs of people with disabilities and access and functional needs into their agency planning, relevant to their agencies’ mission and response, and in coordination with OEM.
3

Case 1:11-cv-06690-JMF Document 202 Filed 10/15/14 Page 45 of 55
II. DISABILITY COMMUNITY ADVISORY PANEL
A. The City will enhance and improve its Special Needs Advisory Committee through the creation of a Disability Community Advisory Panel, which is intended as a collaborative entity through which the City can gather expertise, input, and feedback from disability community organizations and members of the disability community regarding accessibility issues arising from current or future proposals related to enhancing emergency planning as it impacts people with disabilities.
B. It is the intent of the parties that the input of the Disability Community Advisory Panel will be shared amongst relevant City agencies and that best efforts will be made to incorporate, to the extent possible, recommendations and feedback in the City’s emergency planning programs and initiatives. The City has every intention that the Disability Community Advisory Panel, or a similar successor entity, will continue to operate after the Court’s jurisdiction has ended.
C. The Panel:
1. Will include representatives from both government and nongovernment agencies and organizations that have an interest in, advocate for, and/or provide services to people with disabilities, as well as individuals with disabilities. Individuals will disabilities shall have significant representation on the Panel. The Panel will work towards integration of disability and access and functional needs issues in the City’s emergency proposals and related programs and policies. Disability community members will have input regarding who represents them on the Panel.
2. Will meet on a quarterly basis.
3. Will address emerging issues, challenges, and solutions related to disability and other access and functional needs in emergency planning.
4. Will support the work of the Coordinator, his or her designee or future advisory Panel leads, review relevant portions of the City’s emergency plans and proposals that impact the disability community, and provide advice to the City on disability and other access and functional needs issues as they pertain to the City’s management of emergencies and on the pertinent requirements of state and federal law.
5. Will make recommendations and participate in enhancing the City’s public education and outreach program to people with disabilities, which include but are not limited to:
4

Case 1:11-cv-06690-JMF Document 202 Filed 10/15/14 Page 46 of 55
a) Providing information so people with disabilities know what to expect and what not to expect from the City in the event of an emergency; and
b) Working with the City to provide accurate messaging of emergency-related issues as they impact people with disabilities.
6. Will work cooperatively with the City, providing practical input and suggestions on emergency plans and proposals that impact the disability community; the goal of which will be to support the City in implementation of the terms of the Stipulation of Settlement.
7. Will review and provide recommendations relating to portions of the City’s emergency plans and proposals or revisions of plans that impact people with disabilities prior to final approval by the City of any such new or revised plans.
a) The City agrees to provide reasonably necessary information for the evaluation of future plans, proposals, and revisions.
b) As necessary, the City will request the Panel’s feedback on timesensitive proposals that the City believes implicate urgent disability and other access and functional needs issues. The Panel will provide such feedback within a unified document that reflects a majority view from the Panel within 5 business days of receiving such request, unless the City and the Panel agree otherwise.
c) The DAFN Coordinator will report to the Panel at each quarterly meeting on the status of the recommendations.
D. The parties agree to discuss further specific internal processes related to the functioning of the Panel, including but not limited to:
1. Convening a special meeting of the Panel to determine representation of the disability community on the Panel, as set forth in Section C.1 supra.
2. Reviewing and soliciting feedback on existing processes for gathering input and feedback from the disability community before the Disability Community Advisory Panel is fully functioning.
3. Soliciting input regarding the selection of the DAFN Coordinator.
4. A procedure for appointing Panel members.
5. Which groups or individuals will initially be included in the Panel.
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Case 1:11-cv-06690-JMF Document 202 Filed 10/15/14 Page 47 of 55
6. Pt'ocess for decision-making within the Panel.
E. To the extent that the terms of the Order call flor input {iom or collaboration with the disability community, this will be coordinated through the Panel.
F, Panel members will be offered and expectecl to take a basic Incident Command
Structure Course ("lCS") to better understand the integration of disability needs into enrergency response, Panel members will also be expected tc¡ attend training on disability literacy and Americans with Disabilities Act requit'ernents Ìelating to emergency preparedness issues,
G, The City will hold an annual forum open to the public on issues relating to
emergency planning for persons with disabilities. The City vvill work with the Panel to notify organizations regarcling the date and location of the forum,
DATE; septemuc{zot+
Undersigned:
By: Christine Chuang DISABILITY RIGHTS ADVOCATES Attorneys for Plaintifß
By Mark Toews Senior Counsel Attorney lbr Defþnclants
O¡r behalf of:
ZACHARY W. CARÏËR Corporation Counsel of the City ofNew York Attorney fol Def'endants
100 Church Street, Room 2-106
New York, New York 10007
(212) 3s6-0871
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Case 1:11-cv-06690-JMF Document 202 Filed 10/15/14 Page 48 of 55
EXHIBIT G

Case 1:11-cv-06690-JMF Document 202 Filed 10/15/14 Page 49 of 55
MEMORANDUM OF UNDERSTANDING
HIGH RISE BUILDING EVACUATION FOR PEOPLE WITH DISABILITIES
COMMITMENT TO ENHANCING EVACUATION PLANNING TO ACCOMMODATE THE NEEDS OF PEOPLE WITH DISABILITIES WITH RESPECT TO HIGH RISE BUILDING EVACUATION:
I. NYC/ADA HIGH RISE BUILDING EVACUATION TASK FORCE
A NYC/ADA High Rise Building Evacuation Task Force will be assembled and tasked with the responsibility of creating a Work Plan containing reasonable and achievable recommendations to address the evacuation of people with disabilities from high rise buildings in New York City.
The Task Force will consist of a committee of stakeholders with participation from relevant City agencies, in addition to outside experts with subject matter expertise in emergency preparedness and response as they pertain to meeting the needs of people with disabilities. The Task Force will be led by the Fire Department (FDNY), which will coordinate with and receive input from the subject matter experts (SMEs) and the other task force members and stakeholders identified below. The assignment will last 12 months, at the end of which a Work Plan will be created, which will have an implementation period of 3 years.
A. Task Force Membership
The principal Task Force members will include, but shall not be limited to, the stakeholders listed under Tier 1 below. Other members may be asked to join the Task Force meetings in order to address specific topic areas.
Tier I – The internal core planning group will include representatives from:
 FDNY o One assigned lead who reports directly to the Fire Commissioner or his designee. o Representatives from FDNY, as determined by the assigned project lead above.
 Office of Emergency Management (OEM) o Disability and Access and Functional Needs (DAFN)/Settlement Coordinator and/or; o The DAFN Coordinator’s designee who shall have knowledge and expertise relating to evacuation of people with disabilities.
 Mayor’s Office for People with Disabilities (MOPD)  Experts with subject matter expertise in emergency preparedness and response as
they pertain to meeting the needs of people with disabilities and in high rise building evacuation of people with disabilities

Case 1:11-cv-06690-JMF Document 202 Filed 10/15/14 Page 50 of 55
 Plaintiffs and Defendants will each assign one subject matter expert to sit as a principal member of the Task Force. The SMEs shall have the knowledge, skills, and experience necessary to meaningfully contribute to the work of the Task Force. The SMEs shall regularly participate in the Task Force meetings, either inperson or telephonically, as appropriate. Plaintiffs’ chosen SME may provide Plaintiffs’ counsel with drafts of documents for comment throughout the Task Force process.
Tier II – Members who will be engaged at specific points, to be determined based upon the topic areas being discussed at a given meeting, and may include the following, but shall not be limited to:
 Deputy Mayor, or his/her designee  Other agencies/entities with relevant responsibilities:
o Department of Buildings (DOB) o Department of Health and Mental Hygiene (DOHMH) o New York City Housing Authority (NYCHA) o Department of Housing Preservation & Development (HPD) o New York City Police Department (NYPD) o 311/DoITT  Disability and other stakeholders, including but not limited to representatives from the following disability organizations: o Center for Independence of the Disabled, New York (CIDNY), Brooklyn
Center for Independence of the Disabled (BCID), National Council on Independent Living (NCIL), Independent Living Network of New York, and New York Association on Independent Living (NYAIL)
Other groups that will likely provide input
 NFPA, ANSI, RESNA – other code standards groups covering area of effort  BOMA, NYC Co-Op & Condo Association, REBNY, etc.  United States Access Board, National Institute of Standards and Technology
(NIST)
B. Additional Considerations
1. FDNY, as the agency with the primary subject matter expertise in this area will take the lead in this process, and will coordinate with and receive input from the subject matter experts (SMEs) and the other task force members and stakeholders identified above.
2. The review and planning process will be documented; templates will be created for documenting the Task Force’s efforts and for reporting to the Court.
3. The Task Force will meet on a bi-weekly basis.
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Case 1:11-cv-06690-JMF Document 202 Filed 10/15/14 Page 51 of 55
4. Task Force members must have the requisite knowledge and authority to speak on behalf of their respective agency/organization.
II. TASK FORCE DELIVERABLES
The Task Force will work to meet 3 distinct deliverables: (1) Gap/Situational Analysis, (2) Recommendations, and (3) Work Plan. The Analysis and Recommendations will be completed at the end of the 12 month period.
A. Gap/Situational Analysis
1. Conduct a thorough review and analysis of the identified deficiencies with respect to high rise evacuation in the Court’s November 7, 2013 Opinion and Order, existing NYC-based and national high-rise building evacuation, plans, codes, regulations, practices, procedures, and guidance, and recent research in the field of disability and evacuation.
2. Identify practices used by relevant agencies in other large metropolitan jurisdictions that may be replicable, in whole or in part, relating to high rise building evacuation.
3. Identify different high rise building occupancies in NYC and how the building occupancy impacts policy/procedure/regulation relating to high rise building evacuation.
4. Identify gaps that require policy, procedure, and/or regulatory remedy.
B. Recommendations
1. Issues
Using the Gap/Situational Analysis above, the Task Force will develop a set of recommendations to address the existing gaps in NYC’s high rise building evacuation plans and protocols that the Court found in its Opinion, and the City agrees to implement all such recommendations that are reasonable and achievable. Recommendations will take into account and consider the following non-exhaustive list of issues, among others identified through the above-described tiered meeting process:
 Scalability of plans/procedures  Building occupancy type and features (usage, age, etc.)  Disability Community education and engagement  Education and Involvement of building owners (REBNY, HPD, and NYCHA)  First Responder Training  Movement of durable medical equipment and service animals
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Case 1:11-cv-06690-JMF Document 202 Filed 10/15/14 Page 52 of 55
 Effective Communications  Local Law 98/2013, and any other relevant local laws  Signaling Devices  The City’s current inventory of evacuation devices  Placement of Evacuation Devices for people with disabilities in public and private
buildings  Drafting & passage of local regulations, codes and/or orders to support goals  Creation of single-building evacuation protocols, such as evacuation assistants or
areas of refuge or rescue  The feasibility of elevator evacuations  An assessment of the capacity and effectiveness of 311 (including the upgrades
discussed below) to address the evacuation needs of people with disabilities during a large scale emergency, through the use of call representatives, texting, and online inquiries/responses, and the feasibility of connecting to the designated pool of agents discussed below via text or online.
 City-Owned and Operated Evacuation Devices
The Task Force will assess the estimated demand for City-provided accessible evacuation services in order to develop a recommendation concerning whether its current inventory of evacuation devices are sufficient to meet the estimated demand. Dependent upon the results of the needs analysis, the City agrees to work to create an appropriate logistics and purchase plan for the purchase of additional evacuation devices/stair chairs used by FDNY and the repositioning of the equipment, should the Task Force so recommend.
 Signaling Devices
The Task Force will work to form a consensus on the most appropriate form of a standardized, low-cost signaling device or devices to be used by people with disabilities as a method for signaling for assistance evacuating (for instance, in the event a person cannot reach 311 for evacuation assistance). The Task Force will determine how to best publicize the use of the device(s), as well as methods of distribution, which may include distributing the device(s) at the annual forum open to persons with disabilities (see Coordinator/Community Panel MOU), outreach events, through service providers that are part of AWS, and/or through a City website, if appropriate. First responders will receive training about how to recognize the above signaling. The Task Force shall develop their recommendations on this issue within 4 months from the time the Stipulation of Settlement is entered as a Court order and the City will begin to implement these recommendations when it receives the recommendations.
2. Drills, Training, Outreach and Education
a. Drills
The City will create and implement High Rise Evacuation Drills--consistent with the Task Force’s recommendations--with building owners, managers, superintendents, occupants, and relevant City agencies. Drills will include the participation of people with disabilities. The
4

Case 1:11-cv-06690-JMF Document 202 Filed 10/15/14 Page 53 of 55
City will conduct an after-action assessment of each drill after it is conducted. The timeframe for this will be detailed as part of the Work Plan discussed in section C below.
b. Training
The Task Force will create new training materials and education guidelines for first responders based on the Task Force’s recommendations. Training topics may include communicating with individuals with disabilities, proper protocols for evacuation of persons with disabilities understanding the correct method of transporting durable medical equipment, and review of protocols regarding evacuation of service animals, and educating building owners on a protocol to give priority to persons with disabilities.
c. Outreach and Education
Based on the recommendations of the Task Force, the City will create a more robust preemergency planning Outreach and Education program for building owners and occupants with an emphasis on high rise evacuation of persons with disabilities. The timeframe for this will be detailed as part of the Work Plan discussed in section C below. Dependent on the recommendations of the Task Force, this revised program may include, but will not necessarily be limited to the following:
 Updating the FDNY’s Fire and Emergency Preparedness Guide—which will be distributed to every occupant of a multiple dwelling building in New York City— to include advice and recommendations to promote safety for individuals with disabilities during an emergency, sources of available resources, important contact information, pertinent websites and other sources of information, and any relevant Task Force recommendations, including the appropriate uses and types of low-cost signaling devices;
 Information concerning the upgraded 311 system;  Other Task Force recommendations that are ultimately implemented by the City.
The City will also update the OEM website on an as needed basis to reflect the recommendations as required by the recently enacted Local Law 98/2013, which amended the administrative code of the City of New York respecting emergency preparedness recommendations for owners of residential and commercial buildings and the posting of emergency information in certain residential buildings.
Consistent with and dependent upon the recommendations of the Task Force, the City will address through rulemaking issues associated with persons with disabilities by incorporating information and guidance in the fire and emergency preparedness guide and notices required by New York City Fire Code Chapter 4 (see FC401.6). Depending on the recommendations of the Task Force, this may include information about evacuation planning, use of signaling devices, and procedures for marking apartments where individuals have already evacuated or where individuals remain. The amended guides and notices would address both fire and non-fire emergencies.
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All materials distributed by the City as parl of its Oufreach and Education program will
be available in alternate fonnats (including Braille, large print, audio tape). The City agrees to inclucle in the rnaterials specific inl'ormation about how to obtain a guide in any alfemate format.
C. Work Plan
Thc Task Force will create a 3 year implementation Work Plan that includes delivery dates and an oversight structure, The City will reporl on the progress of implemen{ing the Work
Plan pursuant to its reporting obligation as set forth in the Stipulation of Settlement.
IIT. HOMEBOUNDEVACUATTON/3II UPGRADE
3l I has upgraded its hardware to a natural language IVR systern where 3ll callers are
now asketl to describe what infonnation they seek, ancl the system then repeats back to the customer what it believes the customer is sceking and asks that the caller confirm such before dilecting the caller to the appropriate information or representative. During a Citywide emelgency situation the City will use the natural language IVR in conceÍ with a designated pool of agents to receive and handle calls fiom people with disabilities requesting assistance evacuating through the Homebound Evacuation Operation. The natural language IVR would allow a cuslonìer to speak "disability evacuation, ol'"homebound evacuation operation" or any other conibinatjon of designated words. and the caller would be routed to a pool of dedicated specialists (who have training with respect to working with peopìe with disabilities and evacuation protocols), The chosen combination of r,vorcls would be cornmunicated through appropriate and agreed upon channels and limeframes.
Plaintiff-s will be able to review the chosen words and the content developed for use by the trained specialists. The City will provide the chosen words and content to Plaintiffs within l5
days of completion. The City agrees to meaningfrrlly considel PlaintifTi' comments, incorporate them where praotical and consistent with the goals of this MOU, and report back to Plaintiffs
regarding which comments were acçepted or rejected, and the reasons rvhy. 3l I intends to
expand its hardware and increase the numbel of licenses for aclditional ports to be added to the natural language IVR system in order to plovide access to additional callers to the system,
'l'hese enhancements to the 3l I systern will be complete within 4 months ot'the Eflective
Date of the Stipulation of Settlement.
í
DATE: s"pt" a"r21 2014
Undersignecl:
By Clu'istine Chuang DISABILITY RIGHTS ADVOCATES Attorneys for Pl ainti ffs
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Case 1:11-cv-06690-JMF Document 202 Filed 10/15/14 Page 55 of 55
By Mark Toews Senior Counsel Attorney for Defendants
On behalf of: ZACHARY W. CARTER Corporation Counsel of the City of New York Attorney for Defendants 100 Church Street, Room 2-106 New York, New York 10007 (2t2) 3s6-0871
7

 
 CCaassee11:1:111-c-cvv-0-066669900-J-JMMFF DDooccuummeennt t220292-1 FFileiledd0031/0/166/1/155 PPaaggee11oof f44

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

BROOKLYN

CENTER

FOR

INDEPENDENCE OF THE DISABLED, a

nonprofit organization, CENTER FOR

INDEPENDENCE OF THE DISABLED NEW

YORK, a nonprofit organization, GREGORY

D. BELL, and TANIA MORALES,

Plaintiffs,

-against-

BILL DE BLASIO, in his official capacity as Mayor of the City of New York, and the CITY OF NEW YORK,

No. 11 Civ. 6690 (JMF)(FM)

03/06/2015

[XPXRXOXPXOXSXEXDX] ORDER GRANTING MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
Hearing Date: February 13, 2015 and March 6, 2015 Time: 10:00 a.m. Courtroom: 1105

Judge: Honorable Jesse M. Furman Defendants.

PLAINTIFFS HAVE MADE AN APPLICATION to the Court for an order finally approving the settlement in this action with Defendants the City of New York (“City”) and Bill de Blasio, in his official capacity as the Mayor of the City of New York (collectively, “Defendants”), in accord with the Stipulation of Settlement (“Settlement”), which sets forth the terms and conditions of a proposed settlement and dismissal of the action upon the terms and conditions set forth therein. Defendants do not oppose this motion. On October 15, 2014, the Court so ordered the Settlement, subject to the modification or rejection following notice to class members and the Fairness Hearing (Dkt. No. 202). On that same day, the Court issued an Order Regarding Interim Relief, Notice to the Class, and Fairness Hearing (Dkt. No. 203) (“Order”). A Fairness Hearing was held on February 13, 2015 to address all matters concerning the Settlement. Having read the papers submitted and carefully considered the arguments and
and for the reasons stated on the record at the hearing held on March 6, 2015, relevant legal authority, and good cause appearing, the Court GRANTS Plaintiffs’ Motion for
^ Final Approval of Class Action Settlement.

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CCaassee11:1:111-c-cvv-0-066669900-J-JMMFF DDooccuummeennt t220292-1 FFileiledd0031/0/166/1/155 PPaaggee22oof f44
NOW, THEREFORE, IT IS HEREBY ORDERED that: 1. The Court hereby grants final approval of the Settlement. The Court finds that the Settlement is fair, adequate, and reasonable to all known and potential class members. 2. It further appears that extensive evaluation of the merits of this case has been conducted because liability has already been determined pursuant to a six-day bench trial, so that the attorneys for all parties were able to reasonably evaluate their respective positions. It also appears that settlement will, at this time, avoid substantial additional costs to all parties, as well as avoid the delay and the risks inherent in further litigation with respect to remedy. The Court has reviewed the relief granted by the Settlement and recognizes the significant value to the Plaintiff class of the injunctive relief set forth therein. 3. Given the complex nature of the subject matter of this case, neither side was certain of the outcome that would have resulted had the case continued to a remedy trial. 4. Counsel on both sides have fully and aggressively litigated the matter on the merits through a six-day bench trial. The negotiations relating to remedy included multiple inperson and telephonic settlement and mediation sessions, conducted over nine months. The remedy negotiations became so contested that the Court set a date for a remedy trial at Plaintiffs’ request. Thus, it appears that the Settlement has been reached as the result of intensive, prolonged, serious, and non-collusive arms-length negotiations and the Settlement resolves the matter in a just and fair way for all parties. The Settlement was informed by extensive discovery, a six-day bench trial on the merits, and was the result of the work of experienced and competent counsel. 5. The Court finds that the distribution of notice by all parties was done in a manner and form consistent with the Court’s October 15, 2014 Order, with deviations as explained below, and meets the requirements of both due process and Rules 23(c)(2) and 23(e) of the Federal Rules of Civil Procedure. Such notice was made available by the following means:
a. The parties complied with the notification requirements of the Class Action Fairness Act by October 27.
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b. Notice was posted by October 27 on the websites of Class Counsel Disability Rights Advocates, named organizational Plaintiffs Brooklyn Center for the Independence of the Disabled (BCID) and Center for Independence of the Disabled, New York (CIDNY), the Mayor’s Office for People with Disabilities, and New York City’s Office of Emergency Management.
c. Notice was sent out by October 27 via email, listserv, and/or posted to the website for all constituents of the National Council on Independent Living, Disabled in Action, New York Association on Independent Living, Bronx Independent Living Services, and Independent Living Network of New York.
d. Notice was sent out by email, listserv, and/or posted to the website for all constituents of United Spinal Association on October 28 and Staten Island Center for Independent Living on November 14.
e. The Court is informed by Class Counsel that Harlem Independent Living Center does not have a working webpage and the majority of its consumers do not have internet access, therefore in lieu of electronic distribution, Harlem Independent Living Center provided notice of the Settlement through other means of distribution.
6. Despite two organizations providing notice after the October 27 deadline and one organization distributing the notice through alternative means, the notice provided was the best practicable under the circumstances and the Court is informed that the listservs and email groups of the eight disability organizations serve overlapping constituents and there is cross-distribution to the same members of the disability community. The notice provided shall constitute due and sufficient notice to all persons entitled thereto.
7. The deadline for submission of objections was December 29, 2014. There were no objections received during the objection period.
8. The Court retains continuing jurisdiction over this matter for a period of time as set forth in the Settlement, in order to supervise the implementation, enforcement, construction,
3

CCaassee11:1:111-c-cvv-0-066669900-J-JMMFF DDooccuummeennt t220292-1 FFileiledd0031/0/166/1/155 PPaaggee44oof f44

and interpretation of the Settlement and this Order, and to be able to determine the amount of an award of attorneys’ fees and costs, if any, to which Class Counsel is entitled. The continuing jurisdiction of the Court shall terminate on December 14, 2017 (three years and 60 days following the Effective Date of the Settlement) with respect to Sheltering, Canvassing, Accessible Transportation, Emergency Communications, and Power Outages. The continuing jurisdiction of the Court shall terminate on December 14, 2018 (four years and 60 days following the Effective Date of the Settlement) with respect to High Rise Evacuation and Coordinator/Panel.

Dated: _M__a_r_c_h_6_____, 2015 New York, NY

___________________________ JESSE M. FURMAN
United States District Judge

The Clerk of Court is directed to close this case.

4

 
 CLOSED,CASREF,ECF
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:11−cv−06690−JMF

Brooklyn Center for Independence of the Disabled et al v. de Blasio et al Assigned to: Judge Jesse M. Furman Referred to: Magistrate Judge Frank Maas (Settlement) Cause: 42:12112 Americans with Disabilities Act − Employment Discrimination
Plaintiff

Date Filed: 09/26/2011 Date Terminated: 03/06/2015 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question

Brooklyn Center for Independence of the Disabled a nonprofit organization

represented by Christine Hsiao−Ting Chuang Disability Rights Advocates 2001 Center Street Berkeley, CA 94704 (510)−665−8644 Fax: (510)−665−8511 Email: cchuang@dralegal.org ATTORNEY TO BE NOTICED

Daniel L. Brown Sheppard, Mullin, Richter & Hampton, LLP (NYC) 30 Rockefeller Plaza, 24th Fl. New York, NY 10112 (212)−332−3879 Fax: (212)−332−3888 Email: dlbrown@sheppardmullin.com ATTORNEY TO BE NOTICED

Jelena Kolic Legal Momentum 5 Hanover Square Suite 1501 New York, NY 10005 (312)−806−4678 Email: jkolic@dralegal.org ATTORNEY TO BE NOTICED

Julia Miriam Pinover Disabilities Right Advocates 40 Worth Street, 10th Floor New York, NY 10013 (212) 644−8644 Fax: (212) 644−8636 Email: jpinover@dralegal.org TERMINATED: 01/12/2015

Mary−Lee Kimber Smith Disability Rights Advocates 2001 Center Street, 3rd Floor Berkeley, CA 94704 (510) 665−8644 Fax: (510) 665−8511 Email: mkimber@dralegal.org PRO HAC VICE ATTORNEY TO BE NOTICED

Rebecca Juliet Rodgers Disability Rights Advocates (NYC) 655 Third Avenue, 14th Floor

Plaintiff Tania Morales

New York, NY 10017 212−644−8644 Email: rrodgers@dralegal.org ATTORNEY TO BE NOTICED
Rebecca Catherine Serbin Disabilities Right Advocates 675 Third Ave., Ste. 2216 New York, NY 10017 (212) 644−8644 Fax: (212) 644−8636 Email: rserbin@dralegal.org ATTORNEY TO BE NOTICED
Rebecca Susanne Williford Diability Rights Advocates 2001 Center Street 3rd Floor Berkeley, CA 94704 510−665−8644 Fax: 510−665−8511 Email: rwilliford@dralegal.org PRO HAC VICE ATTORNEY TO BE NOTICED
Shawna Leigh Parks Disability Rights Advocates 2001 Center Street Berkeley, CA 94704 (510) 665−8644 Fax: (510) 665−8511 Email: sparks@dralegal.org ATTORNEY TO BE NOTICED
Sid Wolinsky Disability Rights Advocates 2001 Center Street, 4th floor Berkley, CA 94704 (510)−665−8644 Fax: (510)−665−8511 Email: swolinsky@dralegal.org TERMINATED: 01/04/2019 PRO HAC VICE
represented by Christine Hsiao−Ting Chuang (See above for address) ATTORNEY TO BE NOTICED
Daniel L. Brown (See above for address) ATTORNEY TO BE NOTICED
Jelena Kolic Legal Momentum 5 Hanover Square Suite 1501 New York, NY 10005 (312)−806−4678 Email: jkolic@legalmomentum.org ATTORNEY TO BE NOTICED
Julia Miriam Pinover (See above for address)

Plaintiff
Center for Independence of the Disabled, New York a nonprofit organization

TERMINATED: 01/12/2015
Mary−Lee Kimber Smith (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Rebecca Juliet Rodgers (See above for address) ATTORNEY TO BE NOTICED
Rebecca Catherine Serbin (See above for address) ATTORNEY TO BE NOTICED
Rebecca Susanne Williford (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Shawna Leigh Parks (See above for address) ATTORNEY TO BE NOTICED
Sid Wolinsky (See above for address) TERMINATED: 01/04/2019 PRO HAC VICE
represented by Christine Hsiao−Ting Chuang (See above for address) ATTORNEY TO BE NOTICED
Daniel L. Brown (See above for address) ATTORNEY TO BE NOTICED
Jelena Kolic (See above for address) ATTORNEY TO BE NOTICED
Julia Miriam Pinover (See above for address) TERMINATED: 01/12/2015
Mary−Lee Kimber Smith (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Rebecca Juliet Rodgers (See above for address) ATTORNEY TO BE NOTICED
Rebecca Catherine Serbin (See above for address) ATTORNEY TO BE NOTICED
Rebecca Susanne Williford (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Gregory D. Bell
V. Defendant Michael R. Bloomberg in his official capacity as Mayor of the City of New York TERMINATED: 02/09/2015

Shawna Leigh Parks (See above for address) ATTORNEY TO BE NOTICED
Sid Wolinsky (See above for address) TERMINATED: 01/04/2019 PRO HAC VICE
represented by Christine Hsiao−Ting Chuang (See above for address) ATTORNEY TO BE NOTICED
Daniel L. Brown (See above for address) ATTORNEY TO BE NOTICED
Jelena Kolic (See above for address) ATTORNEY TO BE NOTICED
Julia Miriam Pinover (See above for address) TERMINATED: 01/12/2015
Mary−Lee Kimber Smith (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Rebecca Juliet Rodgers (See above for address) ATTORNEY TO BE NOTICED
Rebecca Catherine Serbin (See above for address) ATTORNEY TO BE NOTICED
Rebecca Susanne Williford (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Shawna Leigh Parks (See above for address) ATTORNEY TO BE NOTICED
Sid Wolinsky (See above for address) TERMINATED: 01/04/2019 PRO HAC VICE
represented by Mark Galen Toews NYC Law Department 100 Church Street Room 3−212 New York, NY 10007 (212) 356−0871 Fax: (212)−788−8877 Email: mtoews@law.nyc.gov

Defendant The City of New York
Defendant Bill de Blasio
Miscellaneous The American Red Cross TERMINATED: 06/29/2012

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Martha Anne Calhoun NYC Law Department, Office of the Corporation Counsel (NYC) 100 Church Street New York, NY 10007 212−356−0856 Fax: 212−356−1148 Email: mcalhoun@law.nyc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carolyn Elizabeth Kruk NYC Law Department 100 Church Street Rm. New York, NY 10007 (212)−356−0893 Fax: (212)−788−0940 Email: ckruk@law.nyc.gov ATTORNEY TO BE NOTICED
represented by Mark Galen Toews (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Martha Anne Calhoun (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carolyn Elizabeth Kruk (See above for address) ATTORNEY TO BE NOTICED
represented by Carolyn Elizabeth Kruk (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark Galen Toews NYC Law Department 100 Church Street, RM2−171 New York, NY 10007 (212) 356−0871 Fax: (212)−788−8877 Email: mtoews@law.nyc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Teresa L. Jakubowski Barnes & Thornburg LLP 1717 Pennsylvania Ave., NW Washington, DC 20006 202−371−6366 Fax: 202−289−1330 Email: teresa.jakubowski@btlaw.com PRO HAC VICE

Interested Party United States Of America

ATTORNEY TO BE NOTICED

Date Filed 09/26/2011
09/26/2011 09/26/2011 09/26/2011 09/26/2011
10/17/2011 10/17/2011 10/19/2011
10/19/2011
10/19/2011 10/21/2011 10/21/2011 10/25/2011 12/14/2011
12/20/2011

# Docket Text
1 COMPLAINT against Michael R. Bloomberg, The City of New York. (Filing Fee $ 350.00, Receipt Number 465401017348)Document filed by Center for Independence of the Disabled, New York, Brooklyn Center for Indepndence of the Disabled, Tania Morales.(rdz) (ama). (Entered: 09/27/2011)
SUMMONS ISSUED as to Michael R. Bloomberg, The City of New York. (rdz) (Entered: 09/27/2011)
Magistrate Judge Frank Maas is so designated. (rdz) (Entered: 09/27/2011)
Case Designated ECF. (rdz) (Entered: 09/27/2011)
2 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales.(rdz) (rdz). (Entered: 09/27/2011)
3 NOTICE OF APPEARANCE by Martha Anne Calhoun on behalf of Michael R. Bloomberg, The City of New York (Calhoun, Martha) (Entered: 10/17/2011)
4 ANSWER to 1 Complaint,. Document filed by Michael R. Bloomberg, The City of New York.(Calhoun, Martha) (Entered: 10/17/2011)
5 AFFIDAVIT OF SERVICE of Summons and Complaint,. Michael R. Bloomberg served on 9/26/2011, answer due 10/17/2011. Service was accepted by Brandon James. Document filed by Center for Independence of the Disabled, New York ; Brooklyn Center for Independence of the Disabled; Tania Morales. (Pinover, Julia) (Entered: 10/19/2011)
6 AFFIDAVIT OF SERVICE of Summons and Complaint,. The City of New York served on 9/26/2011, answer due 10/17/2011. Service was accepted by Brandon James. Document filed by Center for Independence of the Disabled, New York ; Brooklyn Center for Independence of the Disabled; Tania Morales. (Pinover, Julia) (Entered: 10/19/2011)
7 NOTICE OF APPEARANCE by Mark Galen Toews on behalf of Michael R. Bloomberg, The City of New York (Toews, Mark) (Entered: 10/19/2011)
8 MOTION for Mary−Lee Kimber Smith to Appear Pro Hac Vice. Document filed by Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales.(wb) (pgu). (Entered: 10/24/2011)
9 MOTION for Sid Wolinsky to Appear Pro Hac Vice. Document filed by Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales.(wb) (pgu). (Entered: 10/24/2011)
CASHIERS OFFICE REMARK on 9 Motion to Appear Pro Hac Vice, 8 Motion to Appear Pro Hac Vice in the amount of $400.00, paid on 10/21/2011, Receipt Number 1019856,1019857. (jd) (Entered: 10/25/2011)
10 Initial Scheduling Conference Notice and Order: Initial Conference set for 1/27/2012 at 10:00 AM in Courtroom 17B, 500 Pearl Street, New York, NY 10007 before Judge Richard J. Holwell, and as further set forth in this document. (Signed by Judge Richard J. Holwell on 12/12/2011) (cd) (Entered: 12/14/2011)
11 ORDER FOR ADMISSION PRO HAC VICE granting 8 Motion for Mary−Lee Kimber Smith to Appear Pro Hac Vice. It is hereby Ordered that Mary−Lee Kimber Smith is admitted pro hac vice as counsel for the plaintiffs. (Signed by Judge Richard J. Holwell on 12/19/2011) (mro) (Entered: 12/20/2011)

12/20/2011 02/14/2012 02/16/2012 02/24/2012
02/24/2012 02/24/2012 02/28/2012 03/08/2012
03/14/2012 03/29/2012
04/16/2012 04/19/2012 04/24/2012

12 ORDER FOR ADMISSION PRO HAC VICE granting 9 Motion for Sid Wolinsky to Appear Pro Hac Vice. It is hereby Ordered that Sid Wolinsky is admitted to practice pro hac vice as counsel for the plaintiffs. (Signed by Judge Richard J. Holwell on 12/19/2011) (mro) (Entered: 12/20/2011)
13 MOTION for Rebecca Williford to Appear Pro Hac Vice. Document filed by Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales.(sjo) (Entered: 02/14/2012)
CASHIERS OFFICE REMARK on 13 Motion to Appear Pro Hac Vice in the amount of $200.00, paid on 02/10/2012, Receipt Number 1029482. (jd) (Entered: 02/16/2012)
14 CASE MANAGEMENT PLAN AND SCHEDULING ORDER: Amended Pleadings due by 2/1/2012. Joinder of Parties due by 2/1/2012. Fact Discovery due by 2/10/2012. Expert Discovery due by 8/24/2012. Dispositive Motions due by 10/5/2012. Plaintiffs motion for class certification due by 7/27/2012. Final Pretrial Order due by 11/2/2012. The parties do not request a jury and anticipate a trial of two weeks. Ready for Trial by 12/3/2012. (Signed by Judge Loretta A. Preska on 2/23/2012) (ab) (Entered: 02/24/2012)
15 ORDER REFERRING CASE TO MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for Settlement. Referred to Magistrate Judge Frank Maas. (Signed by Judge Loretta A. Preska on 2/23/2012) (ab) (Entered: 02/24/2012)
16 ORDER FOR ADMISSION PRO HAC VICE granting 13 Motion for Rebecca Williford to Appear Pro Hac Vice as counsel for Plaintiffs. (Signed by Judge Loretta A. Preska on 2/23/2012) (ab) (Entered: 02/24/2012)
MEMORANDUM TO THE DOCKET CLERK: REMINDER : The conference scheduled for [03/02/11] at [10:00 am] "is adjourned sine die." Before the Honorable: Richard J. Holwell U.S.D.J. in courtroom 17−B 500 Pearl Street NYC. Due to the Judges Retirement all conferences are being rescheduled and an alternate conference date will be set in the near future. (tro) (Entered: 02/28/2012)
17 STIPULATED PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material...This stipulation binds the parties to treat as confidential the documents so classified. The Court, however, has not reviewed the documents referenced herein; therefore, by so ordering this sttpulat1on, the Court makes no finding as to whether the documents are confidential. That finding will be made, if ever, upon a document−by−document review. Moreover, the Court does NOT so order 9/14, which purports to authorize the parties to file documents under seal without a prior court order. (Signed by Judge Denise L. Cote, Part I on 3/7/2012) (cd) (Entered: 03/08/2012)
18 NOTICE OF APPEARANCE by Daniel L. Brown on behalf of Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales (Brown, Daniel) (Entered: 03/14/2012)
19 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Julia Pinover dated 3/28/2012 re: Counsel for the Plaintiffs writes to request that the mediation conference scheduled for 4/18/2012 be adjourned until 4/19/2012 at 2:00 PM. ENDORSEMENT: Approved. (Mediation Conference set for 4/19/2012 at 02:00 PM before Magistrate Judge Frank Maas.) (Signed by Magistrate Judge Frank Maas on 3/29/2012) (ab) (Entered: 03/29/2012)
20 NOTICE OF CASE REASSIGNMENT to Judge Jesse M. Furman. Judge Richard J. Holwell is no longer assigned to the case. (pgu) (Entered: 04/16/2012)
Minute Entry for proceedings held before Magistrate Judge Frank Maas: Settlement Conference held on 4/19/2012. (rjm) (Entered: 04/20/2012)
21 ORDER: WHEREAS this case was recently transferred to the undersigned, it is hereby ORDERED that unless notified otherwise by the Court, any Scheduling Order or Case Management Plan remains in effect not withstanding the case's transfer, except that any currently scheduled conference or oral argument with the Court is adjourned until further notification.IT IS FURTHER ORDERED that each party must submit a letter to the Court, not to exceed five pages, updating the Court on the status of the case no

04/30/2012 05/03/2012 05/07/2012 05/14/2012
05/14/2012
05/25/2012 05/29/2012 06/05/2012 06/11/2012
06/11/2012

later than May 9, 2012. The parties are directed to the Court's applicable Individual Rules and Practices (available at http://nysd.uscourts.gov/judge/Furman) regarding the submission of letters. The status letter should include the following: (Signed by Judge Jesse M. Furman on 4/24/2012) (js) (Entered: 04/25/2012)
22 MOTION for Shawna Leigh Parks to Appear Pro Hac Vice. Document filed by Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales.(arc) (Entered: 05/02/2012)
23 ORDER FOR ADMISSION PRO HAC VICE granting 22 Motion for Shawna Leigh Parks to Appear Pro Hac Vice. (Signed by Judge Jesse M. Furman on 5/3/2012) (cd) (Entered: 05/04/2012)
CASHIERS OFFICE REMARK on 22 Motion to Appear Pro Hac Vice in the amount of $200.00, paid on 04/30/2012, Receipt Number 1036803. (jd) (Entered: 05/07/2012)
24 ENDORSED LETTER: addressed to Judge Jesse M. Furman from Martha A. Calhoun dated 5/9/2012 re: Counsel writes pursuant to Your Honor's order order dated April 24, 2012, to apprise the Court of the status of this case As indicated on the docket, defendants are represented by Michael A. Cardozo, Corporation Counsel of the City of New York by Assistant Corporation Counsel Martha A. Calhoun and Mark G. Toews. The contact information for Ms. Calhoun is correct on the docket. The contact information for Mr. Toews should be corrected as follows: Mark G. Toews New York City Law Department 100 Church Street New York, New York 10007 Tel: 212 788−1281 Fax: 212−788−8877 Email: mtoews@law.nyc.gov. ENDORSEMENT: All counsel must promptly take steps to ensure that the contact information on CM/ECF is accurate. The parties shall appear for a conference on June 29, 2012 at 11:00 a.m. All other dates and deadlines remain in effect. (Signed by Judge Jesse M. Furman on 5/14/2012) (js) (Entered: 05/15/2012)
25 Letter addressed to Judge Jesse M. Furman from Sid Wolinsky dated 5/9/2012 re: We write this status letter pursuant to your order of April 24, 2012. Plaintiffs' counsel has experience negotiating with cities and counties regarding the same issues that are presented by the instant case. Plaintiffs believe that the most effective basis for settlement is to involve a neutral expert who can evaluate the City's plans and provide a clear road map of the plans' deficiencies in a process−based solution. (js) (Entered: 05/15/2012)
27 MOTION for Teresa L. Jakubowski to Appear Pro Hac Vice. Document filed by The American Red Cross.(pgu) (Entered: 05/31/2012)
26 NOTICE OF CHANGE OF ADDRESS by Mark Galen Toews on behalf of Michael R. Bloomberg, The City of New York. New Address: New York City Law Department, 100 Church Street, New York, New York, U.S.A. 10007, 212−788−0800. (Toews, Mark) (Entered: 05/29/2012)
CASHIERS OFFICE REMARK on 27 Motion to Appear Pro Hac Vice in the amount of $200.00, paid on 05/25/2012, Receipt Number 1039398. (jd) (Entered: 06/05/2012)
28 ENDORSED LETTER addressed to Judge Jesse M. Furman from Martha A. Calhoun dated 6/7/2012 re: Defendants respectfully request that the Court deny plaintiffs request to compel depositions and schedule a conference to discuss the issues. ENDORSEMENT: In light of Plaintiff's failure to meet and confer as required by the Court's Individual Rules, and their representation that they would provide defendants with a proposed amended complaint by today, plaintiffs' request for an Order compelling discovery is DENIED. Should there be any disputes requiring the Court's involvement after plaintiffs have provided their proposed amended complaint to defendants, or should the parties desire any changes to the existing schedule, either party may communicate with the Court − after conferring with opposing counsel − in accordance with the Court's Individual Rules. (Signed by Judge Jesse M. Furman on 6/11/2012) (jfe) (Entered: 06/11/2012)
29 Letter addressed to Judge Jesse M. Furman from Sid Wolinsky dated 6/7/2012 re: Plaintiffs are writing to the court at this time because Defendants have repeatedly refused to produce properly noticed deposition witnesses. Defendants' self−help approach has delayed the orderly progress of the case and prejudiced Plaintiffs in the preparation of their case. Counsel respectfully ask the court at this time to order that

06/11/2012 06/29/2012 06/29/2012 07/12/2012
07/16/2012 08/23/2012
08/31/2012 08/31/2012 08/31/2012 08/31/2012 08/31/2012

Defendants produce their witnesses for the depositions previously noticed for June 11 and 12. Plaintiffs request that the court order Defendants to make such witnesses available for deposition within 7 calendar days. (jfe) (Entered: 06/11/2012)
30 ORDER granting 27 Motion for Teresa L. Jakubowski to Appear Pro Hac Vice. (Signed by Judge Jesse M. Furman on 6/11/2012) (ama) (Entered: 06/12/2012)
31 FIRST AMENDED COMPLAINT amending 1 Complaint, against Michael R. Bloomberg, The City of New York.Document filed by Center for Independence of the Disabled, New York, Brooklyn Center for Independence of the Disabled, Tania Morales, Gregory D. Bell. Related document: 1 Complaint, filed by Center for Independence of the Disabled, New York, Tania Morales.(jfe) (Entered: 07/02/2012)
Minute Entry for proceedings held before Judge Jesse M. Furman: Status Conference held on 6/29/2012. (ab) (Entered: 07/04/2012)
32 REVISED PRETRIAL SCHEDULING ORDER: Motions due by 8/31/2012. Fact Discovery due by 7/31/2012. Expert Discovery due by 10/29/2012. Final Pretrial Conference set for 12/4/2012 at 03:00 PM in Courtroom 26A, U.S. Courthouse, 500 Pearl Street, New York, NY 10007 before Judge Jesse M. Furman. Joint Pretrial Order due by 11/19/2012. Bench Trial set for 12/10/2012 at 09:00 AM before Judge Jesse M. Furman, and as further specified in this Revised Pretrial Scheduling Order. (Signed by Judge Jesse M. Furman on 7/12/2012) (rjm) (Entered: 07/12/2012)
33 ANSWER to 31 Amended Complaint,. Document filed by Michael R. Bloomberg, The City of New York.(Toews, Mark) (Entered: 07/16/2012)
34 ENDORSED LETTER: addressed to Judge Jesse M. Furman from Shawna L. Parks dated 8/20/2012 re: Counsel for both Plaintiffs and defendants request that Plaintiffs' identification and disclosure of expert testimony be due September 17, 2012, Defendants' identification and disclosure of expert testimony due by October 15, 2012, Plaintiffs' disclosure of any rebuttal experts be due by October 29, 2012. The parties request that the deadline for the completion of all expert discovery be set for 11/12/2012. ENDORSEMENT: Application granted. All other dates and deadlines remain the same. Defense Counsel shall advise both Plaintiffs and the Court of the status of the Lovely H. Litigation on or before October 1, 2012. (Signed by Judge Jesse M. Furman on 8/23/2012) (js) (Entered: 08/23/2012)
35 MOTION to Certify Class NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. Responses due by 9/14/2012(Parks, Shawna) (Entered: 08/31/2012)
36 MEMORANDUM OF LAW in Support re: 35 MOTION to Certify Class NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF.. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Parks, Shawna) (Entered: 08/31/2012)
37 DECLARATION of SUSAN DOOHA in Support re: 35 MOTION to Certify Class NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF.. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Attachments: # 1 Exhibit A)(Parks, Shawna) (Entered: 08/31/2012)
38 DECLARATION of JOAN PETERS in Support re: 35 MOTION to Certify Class NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF.. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Parks, Shawna) (Entered: 08/31/2012)
39 DECLARATION of TANIA MORALES in Support re: 35 MOTION to Certify Class NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF..

08/31/2012 08/31/2012 08/31/2012 08/31/2012 08/31/2012 08/31/2012 08/31/2012 08/31/2012 08/31/2012

Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Parks, Shawna) (Entered: 08/31/2012)
40 DECLARATION of GREGORY D. BELL, Sr. in Support re: 35 MOTION to Certify Class NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF.. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Parks, Shawna) (Entered: 08/31/2012)
41 DECLARATION of MARVIN WASSERMAN in Support re: 35 MOTION to Certify Class NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF.. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Parks, Shawna) (Entered: 08/31/2012)
42 DECLARATION of CHRISTINA CURRY in Support re: 35 MOTION to Certify Class NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF.. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Parks, Shawna) (Entered: 08/31/2012)
43 DECLARATION of JENNIFER HALBERT in Support re: 35 MOTION to Certify Class NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF.. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Parks, Shawna) (Entered: 08/31/2012)
44 DECLARATION of JEAN RYAN in Support re: 35 MOTION to Certify Class NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF.. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Parks, Shawna) (Entered: 08/31/2012)
45 DECLARATION of RONNIE ELLEN RAYMOND in Support re: 35 MOTION to Certify Class NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF.. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Parks, Shawna) (Entered: 08/31/2012)
46 DECLARATION of VALARIE BUCKNER in Support re: 35 MOTION to Certify Class NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF.. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Parks, Shawna) (Entered: 08/31/2012)
47 DECLARATION of MARY CONNER in Support re: 35 MOTION to Certify Class NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF.. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Parks, Shawna) (Entered: 08/31/2012)
48 DECLARATION of JON ELLENHORN in Support re: 35 MOTION to Certify Class NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF.. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Parks, Shawna) (Entered: 08/31/2012)

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49 DECLARATION of DR. PETER BLANCK, Ph.D, J.D. in Support re: 35 MOTION to Certify Class NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF.. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Parks, Shawna) (Entered: 08/31/2012)
50 DECLARATION of DANIELL. BROWN in Support re: 35 MOTION to Certify Class NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF.. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Parks, Shawna) (Entered: 08/31/2012)
51 DECLARATION of SHAWNA L. PARKS in Support re: 35 MOTION to Certify Class NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF.. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U)(Parks, Shawna) (Entered: 08/31/2012)
52 MOTION to Seal PLAINTIFFS MOTION FOR AN ORDER PERMITTING PLAINTIFFS TO FILE UNDER SEAL: (1) UNREDACTED MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR CLASS CERTIFICATION; AND (2) CERTAIN EXHIBITS TO THE DECLARATION OF SHAWNA L. PARKS. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Attachments: # 1 Exhibit 1, # 2 Exhibit H to S. Parks' Declaration, # 3 Exhibit J to S. Parks' Declaration, # 4 Exhibit M to S. Parks' Declaration, # 5 Exhibit N to S. Parks' Declaration, # 6 Exhibit O to S. Parks' Declaration, # 7 Exhibit R to S. Parks' Declaration, # 8 Exhibit S to S. Parks' Declaration, # 9 Exhibit U to S. Parks' Declaration)(Parks, Shawna) (Entered: 08/31/2012)
53 MEMORANDUM OF LAW in Support re: 35 MOTION to Certify Class NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS MOTION FOR CLASS CERTIFICATION. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Parks, Shawna) (Entered: 08/31/2012)
54 ENDORSED LETTER addressed to Judge Jesse M. Furman from Julia Pinover dated 9/12/2012 re: Plaintiffs respectfully request that our expert report deadline be moved to September 19th, 2012, and as further requested in this letter. ENDORSEMENT: Application granted. So ordered. (Expert Discovery due by 11/14/2012.) (Signed by Judge Jesse M. Furman on 9/12/2012) (rjm) (Entered: 09/13/2012)
55 ENDORSED LETTER addressed to Judge Jesse M. Furman from Mark G. Toews and Matha A. Calhoun dated 9/13/2012 re: For the reasons set forth above, Defendants respectfully request a two (2) week extension of time to file opposition to Plaintiffs' motion to certify the proposed class and permission to simultaneously to move for summary judgment on the limited issue of standing. Again, I apologize for the tardiness of this request; however, we respectfully submit that the timing was unavoidable. Finally, given the complex nature of this case and the need to quote extensively from deposition transcripts, Defendants respectfully request that the Court extend the 25 page limit on legal memoranda to 30 pages. ENDORSEMENT: Defendants are granted until Monday, September 17, 2012, to file their opposition to plaintiffs' motion for class certification. Consistent with the Court's earlier order, plaintiffs shall have one week to file any reply to defendants' opposition. Otherwise, defendants' application is denied in all respects. Defendants may raise the issue of standing at trial. SO ORDERED., ( Responses due by 9/17/2012) (Signed by Judge

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Jesse M. Furman on 9/14/2012) (ama) (Entered: 09/14/2012)
56 Letter addressed to Judge Jesse M. Furman from Julia Pinover dated 9/14/2012 re: Plaintiffs write in response to Defendants' request for a two week extension on their deadline to submit opposition papers to Plaintiffs' motion for class certification, Defendants' request for a page extension on their brief, and Defendants' request to file a motion for summary judgment. Although the parties have generally been able to resolve scheduling and other such issues in this matter, Plaintiffs believe that in this instance Defendants' requests are unjustified. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales.(ama) (Entered: 09/14/2012)
57 NOTICE OF APPEARANCE by Carolyn Elizabeth Kruk on behalf of Michael R. Bloomberg, The City of New York (Kruk, Carolyn) (Entered: 09/14/2012)
58 DECLARATION of Carolyn E. Kruk in Opposition re: 35 MOTION to Certify Class NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF.. Document filed by Michael R. Bloomberg, The City of New York. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I)(Toews, Mark) (Entered: 09/17/2012)
59 MEMORANDUM OF LAW in Opposition re: 35 MOTION to Certify Class NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF.. Document filed by Michael R. Bloomberg, The City of New York. (Toews, Mark) (Entered: 09/17/2012)
60 REPLY MEMORANDUM OF LAW in Support re: 35 MOTION to Certify Class NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF. PLAINTIFFS REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS MOTION FOR CLASS CERTIFICATION. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Parks, Shawna) (Entered: 09/24/2012)
61 DECLARATION of SHAWNA L. PARKS in Support re: 60 Reply Memorandum of Law in Support of Motion,. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Parks, Shawna) (Entered: 09/24/2012)
62 ENDORSED LETTER: addressed to Judge Jesse M. Furman from Martha A. Calhoun dated 10/1/2012 re: Counsel write as directed by the Court to inform the Court and counsel for Plaintiffs of the status of Lovely H. v. Eggleston 05−cv−6920, a class action pending before Judge Forrest in which counsel is also lead counsel. This lawsuit will not be going to trial in mid November as previously scheduled. Judge Forrest has scheduled a conference in the case for tomorrow, October 2, 2012, at which it is anticipated that case scheduling issues will be discussed. ENDORSEMENT: Duly noted. The deadlines in the scheduling order of July 12, 2012, as modified by the letter endorsed on August 23, 2012, remain in effect. So Ordered. (Signed by Judge Jesse M. Furman on 10/3/2012) (js) (Entered: 10/03/2012)
63 Letter addressed to Judge Jesse M. Furman from Shawna L. Parks dated 10/10/2012 re: Plaintiffs write in response to Defendants' letter of October 8, 2012 requesting an extension of the pre−trial and trial dates in this matter. Plaintiffs respectfully oppose any postponement of these dates. (rjm) (Entered: 10/11/2012)
64 ENDORSED LETTER addressed to Judge Jesse M. Furman from Martha A. Calhoun dated 10/8/2012 re: Defendants respectfully request that the date for pre trial submission be adjourned to January 11, 2012 and that the trial be adjourned to January 28, 2013. ENDORSEMENT: Application DENIED without prejudice to renewal if or when the United States files a motion to intervene. Defendants are directed to e−mail a copy of this endorsed letter to the assigned Assistant United States Attorney. (Signed by Judge Jesse M. Furman on 10/10/2012) (rjm) (Entered: 10/11/2012)

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65 SEALED DOCUMENT placed in vault.(nm) (Entered: 11/07/2012)
66 OPINION AND ORDER re: #102561 35 MOTION to Certify Class NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF filed by Center for Independence of the Disabled, New York, Brooklyn Center for Independence of the Disabled, Tania Morales, Gregory D. Bell. For the foregoing reasons, plaintiffs' motion for class certification is hereby GRANTED as modified and subject to comment from the parties. Absent objections, the Court will certify a plaintiff class consisting of the following: All people with disabilities, as defined by the Americans with Disabilities Act, who are within the City of New York and the jurisdiction served by the City of New York's emergency preparedness programs and services. The parties shall have until November 13, 2012, at 12:00 p.m., to submit letter objections, not to exceed three pages, regarding the Court's proposed class definition. It is further ORDERED that defendants have until November 19, 2012, to respond to plaintiffs' motion to seal, showing good cause why maintaining the relevant materials under seal is consistent with the presumption of access created by both the common law and the First Amendment. See, e.g., Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 126 (2d Cir. 2006). In any such response, defendants shall also address whether there is a basis to maintain the unredacted version of this Opinion and Order under seal. Absent a response, the Court will publicly file the unredacted version of this Opinion and Order and deny plaintiffs' motion to seal without further notice to the parties. In the meantime, the Clerk of Court is directed to maintain the unredacted version of this Opinion and Order under seal. It is important to note that the fact that plaintiffs have carried their burden at this stage, and class certification is appropriate, is not to say that the plaintiff class is entitled to the relief it ultimately seeks. It may be, as defendants vigorously assert, that the plaintiffs' claims are "patently false" and that the City has "carefully developed sophisticated operational and logistical plans and supporting resources that effectively serve the health and safety needs of all New Yorkers during emergencies, including those with disabilities." (Defs.' Opp'n Mem. at 1− 2). The fact that plaintiffs have carried their present burden is only to say that they have satisfied the requirements for proceeding by way of a class action. Whether they ultimately prevail will be determined at the trial scheduled to begin on December 10, 2012. (Signed by Judge Jesse M. Furman on 11/7/2012) (lmb) Modified on 11/13/2012 (jab). (Entered: 11/07/2012)
Set/Reset Deadlines: Responses due by 11/19/2012. (lmb) (Entered: 11/07/2012)
67 ENDORSED LETTER: addressed to Judge Jesse M. Furman from Martha A. Calhoun dated 11/13/2012 re: For the reasons set forth above, Defendants propose that the trial be adjourned to January 2013. To this end, Plaintiffs propose that pre−trial submissions be made by December 21, 2012 and any replies be made by January 4, 2013, with trial to begin as soon thereafter as is convenient to the Court. Defendants' position is that a date of December 21, 2012 for pre−trial submission is simply not possible, given that, as noted above, key witnesses are and will continue to be heavily involved in recovery efforts and that the parties will be supplementing the record with evidence from Hurricane Sandy. Accordingly, the earliest that Defendants can make pre−trial submissions would be January 7, 2013, with replies due January 14, 2013, with trial to begin as soon thereafter as is convenient to the Court. ENDORSEMENT: The parties are ordered to appear for a conference with the Court on November 16, 2012, at 11:30 am. By separate order, the Court is re−referring the case to Magistrate Judge Maas for settlement purposes. The parties are ordered to contact his chambers by November 16, 2012, to schedule a settlement conference as soon as possible. ( Status Conference set for 11/16/2012 at 11:30 AM before Judge Jesse M. Furman.) (Signed by Judge Jesse M. Furman on 11/13/2012) (js) (Entered: 11/14/2012)
68 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 Frank Maas. (Signed by Judge Jesse M. Furman on 11/13/2012) (js) (Entered: 11/14/2012)
69 ORDER: Accordingly, IT IS HEREBY ORDERED that this action iscertified as a class action under Rule 23(b)(2) of the Federal Rules of Civil Procedure. The class is defined as: "All people with disabilities, as defined by the Americans with Disabilities Act, who are within the City of New York and the jurisdiction served by the City of New York's emergency preparedness programs and services." (Signed by Judge Jesse

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M. Furman on 11/14/2012) (mt) (Entered: 11/14/2012)
70 ENDORSED LETTER addressed to Judge Jesse M. Furman from Julia Pinover dated 11/14/2012 re: Request for permission for Ms. Parks to appear telephonically at the 11/16/2012 conference in satisfaction of the Court's individual rule 2(A). ENDORSEMENT: Application GRANTED, although counsel who is present in the courtroom should be prepared to do most of the talking. Counsel shall provide the Court with a number to reach Ms. Parks at the time of the conference. (Signed by Judge Jesse M. Furman on 11/15/2012) (cd) (Entered: 11/15/2012)
71 ENDORSED LETTER addressed to Judge Jesse M. Furman from Martha A. Calhoun dated 11/15/2012 re: I write to request that defendants' time to respond to plaintiffs' motion to seal certain documents submitted by plaintiffs in connection with their motion for class certification be extended one week, until November 25, 2012. ENDORSEMENT: Defendants' time to respond to the motion to seal is extended to November 25, 2012. In light of Defendants' consent, the Clerk of Court is directed to unseal the Court's unredacted Opinion and Order (Docket No. 65). (Responses due by 11/25/2012) (Signed by Judge Jesse M. Furman on 11/16/2012) (rjm) (Entered: 11/16/2012)
Transmission to Sealed Records Clerk. Transmitted re: 71 Endorsed Letter, Set Deadlines to the Sealed Records Clerk for the sealing or unsealing of document or case. (rjm) (Entered: 11/16/2012)
72 SCHEDULING ORDER: It is hereby ORDERED that the parties shall file their joint pretrial order by February 18, 2013. Responses to any such filings shall be filed by March 1, 2013. It is further ORDERED that a final pretrial conference will be held on March 4, 2013, at 3:30 p.m. Trial will begin on March 11, 2013, at 9:00 a.m. It is further ORDERED that the parties shall submit a joint letter to the Court by 5:00 p.m. on Tuesday, November 20, 2012, advising the Court with respect to whether the parties have reached agreement on the scope and timing of supplemental discovery relating to the response to Hurricane Sandy or, if not, the nature of any disagreement. (Final Pretrial Conference set for 3/4/2013 at 03:30 PM before Judge Jesse M. Furman. Joint Pretrial Order due by 2/18/2013. Bench Trial set for 3/11/2013 at 09:00 AM before Judge Jesse M. Furman.) (Signed by Judge Jesse M. Furman on 11/16/2012) (rjm) (Entered: 11/16/2012)
Minute Entry for proceedings held before Judge Jesse M. Furman: Status Conference held on 11/16/2012. (ab) (Entered: 11/20/2012)
82 OPINION AND ORDER. For the foregoing reasons, plaintiffs' motion for class certification is hereby GRANTED as modified and subject to comment from the parties. Absent objections, the Court will certify a plaintiff class consisting of the following: All people with disabilities, as defined by the Americans with Disabilities Act, who are within the City of New York and the jurisdiction served by the City of New York's emergency preparedness programs and services. The parties shall have until November 13, 2012, at 12:00 p.m., to submit letter objections, not to exceed three pages, regarding the Court's proposed class definition. It is further ORDERED that defendants have until November 19, 2012, to respond to plaintiffs' motion to seal, showing good cause why maintaining the relevant materials under seal is consistent with the presumption of access created by both the common law and the First Amendment. See, e.g., Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 126 (2d Cir. 2006). In any such response, defendants shall also address whether there is a basis to maintain the unredacted version of this Opinion and Order under seal. Absent a response, the Court will publicly file the unredacted version of this Opinion and Order and deny plaintiffs' motion to seal without further notice to the parties. In the meantime, the Clerk of Court is directed to maintain the unredacted version of this Opinion and Order under seal. It is important to note that the fact that plaintiffs have carried their burden at this stage, and class certification is appropriate, is not to say that the plaintiff class is entitled to the relief it ultimately seeks. It may be, as defendants vigorously assert, that the plaintiffs' claims are "patently false" and that the City has "carefully developed sophisticated operational and logistical plans and supporting resources that effectively serve the health and safety needs of all New Yorkers during emergencies, including those with disabilities." (Defs.' Opp'n Mem. at 1− 2). The fact that plaintiffs have carried their present burden is only to say that they have satisfied the requirements for proceeding by way of a class action. Whether they ultimately

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prevail will be determined at the trial scheduled to begin on December 10, 2012. (This document was previously sealed in envelope # 65 and unsealed by document # 71.) (Signed by Judge Jesse M. Furman on 11/7/2012) (lmb) (Entered: 12/17/2012)
73 NOTICE OF CONFERENCE: A settlement conference in the above referenced matter has been scheduled for December 7, 2012, at 10:00 a.m., before Magistrate Judge Frank Maas, in Courtroom 20A, 500 Pearl Street, New York, NY 10007. Judge Maas' settlement procedures are attached. Requests for adjournment must be made to the Court, in writing, at least 48 hours prior to the conference. (Settlement Conference set for 12/7/2012 at 10:00 AM in Courtroom 20A, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Frank Maas). (pl) (Entered: 11/20/2012)
74 ENDORSED LETTER addressed to Judge Jesse M. Furman from Martha A. Calhoun dated 11/20/12 re: Counsel writes on behalf of the parties to advise the Court that they have agreed that fact discovery will be completed by 1/4/13 and that expert discovery will conclude by 2/1/13. ENDORSEMENT: So ordered. ( Expert Discovery due by 2/1/2013., Fact Discovery due by 1/4/2013.) (Signed by Judge Jesse M. Furman on 11/21/2012) (mro) (Entered: 11/21/2012)
75 FILING ERROR − WRONG EVENT TYPE SELECTED FROM MENU − MOTION to Seal memorandum of law in support of. Document filed by The City of New York. (Attachments: # 1 Affidavit Declaration of Joseph Bruno)(Calhoun, Martha) Modified on 11/27/2012 (db). (Entered: 11/26/2012)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − EVENT TYPE ERROR. Note to Attorney Martha Anne Calhoun to RE−FILE Document 75 MOTION to Seal memorandum of law in support of. Use the event type (1) Memorandum in Support of Motion; and also (2) Declaration in Support of Motion found under the event list Replies, Opposition and Supporting Documents. Re−File both documents separately, and link them both to the 52 Motion. (db) (Entered: 11/27/2012)
76 MEMORANDUM OF LAW in Support re: 52 MOTION to Seal PLAINTIFFS MOTION FOR AN ORDER PERMITTING PLAINTIFFS TO FILE UNDER SEAL: (1) UNREDACTED MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR CLASS CERTIFICATION; AND (2) CERTAIN EXHIBITS TO THE DECLARATION OF SHAWNA L. PARKS MOTION to Seal PLAINTIFFS MOTION FOR AN ORDER PERMITTING PLAINTIFFS TO FILE UNDER SEAL: (1) UNREDACTED MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR CLASS CERTIFICATION; AND (2) CERTAIN EXHIBITS TO THE DECLARATION OF SHAWNA L. PARKS MOTION to Seal PLAINTIFFS MOTION FOR AN ORDER PERMITTING PLAINTIFFS TO FILE UNDER SEAL: (1) UNREDACTED MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR CLASS CERTIFICATION; AND (2) CERTAIN EXHIBITS TO THE DECLARATION OF SHAWNA L. PARKS MOTION to Seal PLAINTIFFS MOTION FOR AN ORDER PERMITTING PLAINTIFFS TO FILE UNDER SEAL: (1) UNREDACTED MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR CLASS CERTIFICATION; AND (2) CERTAIN EXHIBITS TO THE DECLARATION OF SHAWNA L. PARKS. Document filed by Michael R. Bloomberg, The City of New York. (Calhoun, Martha) (Entered: 11/27/2012)
77 DECLARATION of Joseph Bruno in Support re: 52 MOTION to Seal PLAINTIFFS MOTION FOR AN ORDER PERMITTING PLAINTIFFS TO FILE UNDER SEAL: (1) UNREDACTED MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR CLASS CERTIFICATION; AND (2) CERTAIN EXHIBITS TO THE DECLARATION OF SHAWNA L. PARKS MOTION to Seal PLAINTIFFS MOTION FOR AN ORDER PERMITTING PLAINTIFFS TO FILE UNDER SEAL: (1) UNREDACTED MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR CLASS CERTIFICATION; AND (2) CERTAIN EXHIBITS TO THE DECLARATION OF SHAWNA L. PARKS MOTION to Seal PLAINTIFFS MOTION FOR AN ORDER PERMITTING PLAINTIFFS TO FILE UNDER SEAL: (1) UNREDACTED MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR CLASS CERTIFICATION; AND (2) CERTAIN EXHIBITS TO THE DECLARATION OF SHAWNA L. PARKS MOTION to Seal PLAINTIFFS MOTION FOR AN ORDER PERMITTING PLAINTIFFS TO FILE UNDER SEAL: (1) UNREDACTED MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT

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OF MOTION FOR CLASS CERTIFICATION; AND (2) CERTAIN EXHIBITS TO THE DECLARATION OF SHAWNA L. PARKS. Document filed by Michael R. Bloomberg, The City of New York. (Calhoun, Martha) (Entered: 11/27/2012)
78 ORDER granting in part and denying in part 52 Motion to Seal. For substantially the reasons stated in Defendants' November 27, 2012 Memorandum of Law in Support of Plaintiffs' Motion to Seal (Docket No. 76), Plaintiffs' August 31, 2012 Motion to Seal is GRANTED in part and DENIED in part. Specifically, it is hereby ORDERED that Plaintiffs shall file Exhibit N under seal. The Court is persuaded that there is no public right of access to this document at this stage of the proceedings. Plaintiffs are further ORDERED to publicly file unredacted versions of the remaining documents discussed in their motion on ECF. The Clerk of Court is directed to terminate the motion (Docket No. 52). (Signed by Judge Jesse M. Furman on 11/30/2012) (mro) (Entered: 11/30/2012)
79 SEALED DOCUMENT placed in vault.(nm) (Entered: 12/03/2012)
80 MEMORANDUM OF LAW in Support re: 35 MOTION to Certify Class NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS MOTION FOR CLASS CERTIFICATION. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Parks, Shawna) (Entered: 12/03/2012)
81 DECLARATION of SHAWNA L. PARKS in Support re: 35 MOTION to Certify Class NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF.. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Attachments: # 1 Exhibit H, # 2 Exhibit J, # 3 Exhibit M, # 4 Exhibit O, # 5 Exhibit R, # 6 Exhibit S, # 7 Exhibit U)(Parks, Shawna) (Entered: 12/03/2012)
83 ENDORSED LETTER addressed to Judge Jesse M. Furman from Martha A. Calhoun dated 2/1/2013 re: Counsel for the Defendants writes to request an extension of time to submit the joint pretrial order and request that the Court schedule a conference. ENDORSEMENT: The parties shall conduct the deposition of Deputy Mayor Holloway on February 5, 2013, or as soon thereafter as possible. The parties are granted until February 22, 2013, to submit the joint pretrial order and related filings. All other dates and deadlines remain in effect. (Deposition due by 2/5/2013. Joint Pretrial Order due by 2/22/2013.) (Signed by Judge Jesse M. Furman on 2/4/2013) (ab) (Entered: 02/04/2013)
84 Letter addressed to Judge Jesse M. Furman from Shawna L. Parks dated 2/4/2013 re: Counsel for the plaintiffs write in response to Defendants' requests to (1) postpone the pretrial filings, and (2) conduct an additional fact deposition and/or present this late witness at trial. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales.(ft) (Entered: 02/05/2013)
85 ENDORSED LETTER addressed to Judge Jesse M. Furman from Martha A. Calhoun dated 2/19/2013 re: I write to respectfully request a two−week extension of the time to submit the joint pretrial order and related filings in the above−referenced matter. ENDORSEMENT: Application DENIED. SO ORDERED. (Signed by Judge Jesse M. Furman on 2/20/2013) (ama) (Entered: 02/20/2013)
86 Letter addressed to Judge Jesse M. Furman from Shawna L. Parks dated 2/19/2013 re: Plaintiffs write in response to Defendants' letter of today requesting another extension of the pre−trial and trial dates in this matter. Plaintiffs respectfully but strongly oppose postponement of the trial date in this case. (ama) (Entered: 02/20/2013)
87 Letter addressed to Judge Jesse M. Furman from Shawna L. Parks dated 2/21/2013 re: Plaintiffs write in response to Defendants' letter of late yesterday requesting another extension of the pre−trial deadlines in this matter. Plaintiffs respectfully oppose Defendants' latest request. Document filed by Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales.(mt) (Entered: 02/22/2013)

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88 ENDORSED LETTER addressed to Judge Jesse M. Furman from Martha A. Calhoun dated 2/20/2013 re: To address these issues and to permit the trial to commence on schedule, defendants respectfully request that the joint pre−−trial order, exhibits, motions in limine, and declarations representing direct testimony be submitted on February 26, 2013 and that the proposed findings of fact and conclusions of law be submitted on March 1, 2013. ENDORSEMENT: The deadline for submission of the joint pretrial order and related filings, including the affidavits of witnesses, AND the deadline for submission of proposed findings of fact conclusions of law are hereby extended to February 26, 2013. No further extension of these dates will be granted. Responses to these filings remain due on March 1, 2013. (Signed by Judge Jesse M. Furman on 2/21/2013) (mt) (Entered: 02/22/2013)
Set/Reset Deadlines: All Defendants. Pretrial Order due by 2/26/2013. Responses due by 3/1/2013 (mt) (Entered: 02/22/2013)
89 ENDORSED LETTER addressed to Judge Jesse M. Furman from Preet Bharara dated 2/21/2013 re: Accordingly, the Government respectfully requests permission to file a Statement of Interest on behalf of the United States in this case, following the conclusion of the bench trial that has been scheduled to commence on March 11, 2013. ENDORSEMENT: Application GRANTED. Unless the Court orders otherwise, the Government's Statement of Interest shall be filed no later than 45 days after the evidence closes at trial. (Signed by Judge Jesse M. Furman on 2/22/2013) (mt) (Entered: 02/22/2013)
90 PRETRIAL MEMORANDUM. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales.(Parks, Shawna) (Entered: 02/26/2013)
91 PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales.(Parks, Shawna) (Entered: 02/26/2013)
92 MOTION in Limine NOTICE OF MOTION AND MOTION IN LIMINE TO EXCLUDE EVIDENCE RE PERSONAL EMERGENCY PREPAREDNESS AS A DEFENSE TO PLAINTIFFS CLAIMS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales.(Parks, Shawna) (Entered: 02/26/2013)
93 NOTICE of PLAINTIFFS' REQUEST FOR JUDICIAL NOTICE. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Attachments: # 1 Exhibit A)(Parks, Shawna) (Entered: 02/26/2013)
94 DECLARATION of JULIA PINOVER in Support re: 93 Notice (Other), Notice (Other). Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Parks, Shawna) (Entered: 02/26/2013)
95 Objection PLAINTIFFS OBJECTIONS TO DEFENDANTS EXHIBITS. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Parks, Shawna) (Entered: 02/26/2013)
96 DECLARATION of REBECCA S. WILLIFORD in Support re: 95 Objection (non−motion), Objection (non−motion). Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Parks, Shawna) (Entered: 02/26/2013)
97 PRETRIAL MEMORANDUM. Document filed by Michael R. Bloomberg, The City of New York.(Toews, Mark) (Entered: 02/26/2013)
98 FIRST MOTION in Limine. Document filed by Michael R. Bloomberg, The City of New York.(Toews, Mark) (Entered: 02/26/2013)

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99 SECOND MOTION in Limine. Document filed by Michael R. Bloomberg, The City of New York.(Toews, Mark) (Entered: 02/26/2013)
100 PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW. Document filed by Michael R. Bloomberg, The City of New York.(Calhoun, Martha) (Entered: 02/26/2013)
NOTICE: Please be advised that the conference scheduled for 3/4/2013 will be held in Courtroom 444 of the Thurgood Marshall Courthouse, 40 Centre Street. (ab) (Entered: 03/01/2013)
101 MEMORANDUM OF LAW in Opposition re: 97 Pretrial Memorandum PLAINTIFFS OPPOSITION TO DEFENDANTS MEMORANDUM OF LAW. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Parks, Shawna) (Entered: 03/01/2013)
102 MEMORANDUM OF LAW in Opposition re: 99 SECOND MOTION in Limine. PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION IN LIMINE TO EXCLUDE EVIDENCE. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Parks, Shawna) (Entered: 03/01/2013)
103 MEMORANDUM OF LAW in Opposition re: 98 FIRST MOTION in Limine. PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION IN LIMINE TO EXCLUDE TESTIMONY OF SUSAN DOOHA AND MARGI TRAPANI. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Parks, Shawna) (Entered: 03/01/2013)
104 DECLARATION of SHAWNA PARKS in Support re: 103 Memorandum of Law in Opposition to Motion,. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Attachments: # 1 Exhibit A)(Parks, Shawna) (Entered: 03/01/2013)
105 RESPONSE PLAINTIFFS RESPONSE TO DEFENDANTS OBJECTIONS TO PLAINTIFFS EXHIBITS. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Parks, Shawna) (Entered: 03/01/2013)
106 MOTION to Strike MOTION TO STRIKE LAY WITNESS TESTIMONY. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales.(Parks, Shawna) (Entered: 03/01/2013)
107 MOTION to Strike MOTION TO STRIKE SECTIONS OF EXPERT REPORTS OF ELIZABETH DAVIS. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales.(Parks, Shawna) (Entered: 03/01/2013)
108 DECLARATION of REBECCA S. WILLIFORD in Support re: 107 MOTION to Strike MOTION TO STRIKE SECTIONS OF EXPERT REPORTS OF ELIZABETH DAVIS.. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Parks, Shawna) (Entered: 03/01/2013)
109 PRETRIAL MEMORANDUM. Document filed by Michael R. Bloomberg, The City of New York.(Toews, Mark) (Entered: 03/01/2013)
110 RESPONSE in Opposition re: 92 MOTION in Limine NOTICE OF MOTION AND MOTION IN LIMINE TO EXCLUDE EVIDENCE RE PERSONAL EMERGENCY PREPAREDNESS AS A DEFENSE TO PLAINTIFFS CLAIMS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT.. Document filed by Michael R. Bloomberg, The City of New York. (Toews, Mark) (Entered: 03/01/2013)
111 RESPONSE in Opposition re: 92 MOTION in Limine NOTICE OF MOTION AND MOTION IN LIMINE TO EXCLUDE EVIDENCE RE PERSONAL EMERGENCY

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PREPAREDNESS AS A DEFENSE TO PLAINTIFFS CLAIMS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT.. Document filed by Michael R. Bloomberg, The City of New York. (Toews, Mark) (Entered: 03/01/2013)
112 MOTION for Pre−Trial (Motion to Strike Testimony). Document filed by Michael R. Bloomberg, The City of New York.(Kruk, Carolyn) (Entered: 03/01/2013)
113 DECLARATION of Martha Calhoun in Support re: 112 MOTION for Pre−Trial (Motion to Strike Testimony).. Document filed by Michael R. Bloomberg, The City of New York. (Kruk, Carolyn) (Entered: 03/01/2013)
114 PRETRIAL ORDER:This case is to be a bench trial. The parties estimate that it will require ten (10) court days. (Signed by Judge Jesse M. Furman on 3/4/2013) (lmb) (Entered: 03/05/2013)
Minute Entry for proceedings held before Judge Jesse M. Furman: Final Pretrial Conference held on 3/4/2013. Dan Brown, Julia Pinover, Shawna Parks and Rebecca Williford present for the Plaintiffs. Mark Toews, Martha Calhoun, Carolyn Kruk, Stella Guarna and William Davidson present for the Defendants. Court reporter present. (ab) (Entered: 03/12/2013)
115 ORDER denying 92 Motion in Limine; denying 98 Motion in Limine; denying 99 Motion in Limine; denying 107 Motion to Strike; denying 112 Motion for Pre−Trial. The Clerk of Court is directed to terminate Docket Nos. 92, 93, 95, 98, 99 107, 112. Docket No. 106 shall remain open pending the Court's ruling on the testimony of Brad Gair. It is further ORDERED that Defendants' response, if any, to Plaintiffs' objections to the testimony of Brad Gair shall be filed by March 7, 2013. In addition, the parties are directed to submit by letter their final lists of witnesses, in the order they will be called to testify, by March 7, 2013 at 5:00p.m. (Signed by Judge Jesse M. Furman on 3/5/2013) (mt) (Entered: 03/05/2013)
116 RESPONSE to Motion re: 106 MOTION to Strike MOTION TO STRIKE LAY WITNESS TESTIMONY.. Document filed by Michael R. Bloomberg, The City of New York. (Calhoun, Martha) (Entered: 03/07/2013)
117 ENDORSED LETTER addressed to Judge Jesse M. Furman from Carolyn E. Kruk dated 3/7/2013 re: Counsel for the Defendants writes to request permission to allow two laptops into the Courtroom during the duration of the trial. ENDORSEMENT: Application GRANTED. Counsel shall complete a copy of the Electronic Devices General Purpose form, available at http://nysd.uscourts.gov/forms.php, and submit it to the Court for signature. (Signed by Judge Jesse M. Furman on 3/7/2013) (ab) (Entered: 03/08/2013)
Minute Entry for proceedings held before Judge Jesse M. Furman: Bench Trial begun on 3/11/2013. Dan Brown, Julia Pinover, Shawna Parks and Rebecca Williford present for the Plaintiffs. Mark Toews, Martha Callhoun and Carolyn Kruk present for the Defendants. Court reporter present. Trial continued on April 12, 13, 13, 18, and 19. The Court reserves decision. (ab) (Entered: 04/09/2013)
Minute Entry for proceedings held before Judge Jesse M. Furman: Bench Trial held on 3/12/2013. (ab) (Entered: 04/09/2013)
118 TRIAL MEMORANDUM. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales.(Parks, Shawna) (Entered: 03/13/2013)
Minute Entry for proceedings held before Judge Jesse M. Furman: Bench Trial held on 3/13/2013. (ab) (Entered: 04/09/2013)
119 Letter addressed to Judge Jesse M. Furman from Martha A. Calhoun dated 3/9/2013 re: As one of the attorneys assigned to represent Defendants in the above−referenced class action, I write, consistent with the Court's Individual Rule 4(A), to respectfully request that select exhibits to be used at trial − consisting of various City emergency plans, protocols, guides and manuals − be filed in redacted form on ECF and in unredacted form under seal. Document filed by Michael R. Bloomberg, The City of New York.(lmb) (Entered: 03/14/2013)

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120 ORDER denying 106 Motion to Strike. For the reasons stated on the record at trial on March 13, 2013, Plaintiffs' Motion To Strike Lay Witness Testimony (Docket No. 106) is DENIED to the extent it seeks to exclude the testimony of Brad Gair. The Clerk of Court is directed to terminate Docket No. 106. (Signed by Judge Jesse M. Furman on 3/14/2013) (lmb) (Entered: 03/14/2013)
121 ENDORSED LETTER addressed to Judge Jesse M. Furman from Shawna Parks dated 3/13/2013 re: Plaintiffs are writing, per our discussion in Court, to identify the redacted pages of Joint Trial Exhibit 5, New York City's Area Evacuation Plan (2005), that are relevant to this case. These pages are: CNY019292− CNY019297; CNY019305−CNY019308; CNY019316−CNY019319; and CNY019327−CNY019330. ENDORSEMENT: For the reasons stated on the record in open court, Joint Trial Exhibit 5 − without the pages referenced above redacted − shall be maintained under seal. (Signed by Judge Jesse M. Furman on 3/14/2013) (lmb) (Entered: 03/14/2013)
122 TRIAL MEMORANDUM. Document filed by Michael R. Bloomberg, The City of New York.(Calhoun, Martha) (Entered: 03/14/2013)
Minute Entry for proceedings held before Judge Jesse M. Furman: Bench Trial held on 3/14/2013. (ab) (Entered: 04/09/2013)
Minute Entry for proceedings held before Judge Jesse M. Furman: Bench Trial held on 3/18/2013. (ab) (Entered: 04/09/2013)
123 TRIAL MEMORANDUM. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Attachments: # 1 Exhibit Exhibit A)(Pinover, Julia) (Entered: 03/19/2013)
124 ORDER: As discussed on the record at the end of today's proceedings, the parties are directed to submit to the Court by March 22, 2013: (1) a list of all exhibits that have been admitted in this case; (2) a list of submitted depositions and the portions of those depositions that have been designated for the Court's consideration; and (3) a joint letter indicating whether either party believes limited post−trial briefing would be useful and which issue or issues should be briefed. In addition, Defendants are to submit any opposition to Plaintiffs' Memorandum Regarding Admission of City Council Reports as Statement of Party Opponents by March 22, 2013. It is further ORDERED that the parties are to submit revised proposed findings of fact and conclusions of law, no longer than 75 pages, by May 3, 2013. The proposed findings of fact shall include specific citations to the record for every proposition or proposed fact. Any statement of interest by the United States Government is also due by May 3, 2013. Any response to such a statement must be filed two weeks after the statement is filed. Finally, the parties are directed to contact Magistrate Judge Maas by March 20, 2013 at 5:00 pm to schedule a settlement conference as soon as his schedule permits. (Signed by Judge Jesse M. Furman on 3/19/2013) (lmb) (Entered: 03/19/2013)
Minute Entry for proceedings held before Judge Jesse M. Furman: Bench Trial completed on 3/19/2013. The Court reserves decision. (ab) (Entered: 04/09/2013)
125 NOTICE OF COURT CONFERENCE: A settlement conference in the above referenced matter has been scheduled for April 19, 2013, at 2:00 p.m., before Magistrate Judge Frank Maas, in Courtroom 20A, 500 Pearl Street, New York 10007. Judge Maas' settlement procedures are included in this notice. Requests for adjournment must be made to the Court, in writing, at least 48 hours prior to the conference. By: Richalyn Chambers, Courtroom Deputy, Dated: March 20, 2013. (Settlement Conference set for 4/19/2013 at 02:00 PM in Courtroom 20A, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Frank Maas). (djc) (Entered: 03/20/2013)
Set/Reset Hearings: Settlement Conference set for 4/19/2013 at 02:00 PM in Courtroom 20A, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Frank Maas. (djc) (Entered: 03/20/2013)
126 Exhibit List List of Admitted Trial Exhibits. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales.(Parks, Shawna) (Entered: 03/22/2013)

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127 FILING ERROR − WRONG EVENT TYPE SELECTED FROM MENU − TRIAL MEMORANDUM. Document filed by Michael R. Bloomberg, The City of New York.(Calhoun, Martha) Modified on 3/25/2013 (ka). (Entered: 03/22/2013)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − EVENT TYPE ERROR. Note to Attorney Martha Anne Calhoun to RE−FILE Document 127 Trial Memorandum. Use the event type Memorandum of Law in Opposition(non−motion) found under the event list Other Answers. (ka) (Entered: 03/25/2013)
128 MEMORANDUM OF LAW re: 123 Trial Memorandum opposition to admission of city council papers as party admission. Document filed by Michael R. Bloomberg, The City of New York. (Calhoun, Martha) (Entered: 03/25/2013)
129 Letter addressed to Judge Jesse M. Furman from Shawna L. Parks, Martha A. Calhoun, Michael A. Cardozo, and Paul Garrity dated 3/22/2013 re: The parties write in response to the Court's instructions at the end of trial proceedings and its March 19, 2013 Order. Document filed by Gregory D. Bell, Michael R. Bloomberg, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales, The City of New York.(lmb) (Entered: 03/25/2013)
130 ORDER: The parties are hereby granted leave to submit memoranda of law − no later than April 8, 2013, and not to exceed ten pages − addressing the implications, if any, of Defendants' post−complaint mitigation efforts on liability in this case. (Signed by Judge Jesse M. Furman on 3/25/2013) (lmb) (Entered: 03/25/2013)
131 TRANSCRIPT of Proceedings re: TRIAL held on 3/11/2013 before Judge Jesse M. Furman. Court Reporter/Transcriber: Denise Richards, (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 4/29/2013. Redacted Transcript Deadline set for 5/9/2013. Release of Transcript Restriction set for 7/8/2013.(McGuirk, Kelly) (Entered: 04/03/2013)
132 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a TRIAL proceeding held on 3/11/2013 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: 04/03/2013)
133 TRANSCRIPT of Proceedings re: TRIAL held on 3/12/2013 before Judge Jesse M. Furman. Court Reporter/Transcriber: Martha Drevis, (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 4/29/2013. Redacted Transcript Deadline set for 5/9/2013. Release of Transcript Restriction set for 7/8/2013.(McGuirk, Kelly) (Entered: 04/03/2013)
134 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a TRIAL proceeding held on 3/12/2013 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: 04/03/2013)
135 TRANSCRIPT of Proceedings re: TRIAL held on 3/13/2013 before Judge Jesse M. Furman. Court Reporter/Transcriber: Denise Richards, (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 4/29/2013. Redacted Transcript Deadline set for 5/9/2013. Release of Transcript Restriction set for 7/8/2013.(McGuirk, Kelly) (Entered: 04/03/2013)

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136 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a TRIAL proceeding held on 3/13/13 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: 04/03/2013)
137 TRANSCRIPT of Proceedings re: TRIAL held on 3/14/2013 before Judge Jesse M. Furman. Court Reporter/Transcriber: Martha Drevis, (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 4/29/2013. Redacted Transcript Deadline set for 5/9/2013. Release of Transcript Restriction set for 7/8/2013.(McGuirk, Kelly) (Entered: 04/03/2013)
138 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a TRIAL proceeding held on 3/14/2013 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: 04/03/2013)
139 TRANSCRIPT of Proceedings re: TRIAL held on 3/18/2013 before Judge Jesse M. Furman. Court Reporter/Transcriber: Denise Richards, (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 4/29/2013. Redacted Transcript Deadline set for 5/9/2013. Release of Transcript Restriction set for 7/8/2013.(McGuirk, Kelly) (Entered: 04/03/2013)
140 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a TRIAL proceeding held on 3/18/2013 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: 04/03/2013)
141 TRANSCRIPT of Proceedings re: TRIAL held on 3/19/2013 before Judge Jesse M. Furman. Court Reporter/Transcriber: Martha Drevis, (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 4/29/2013. Redacted Transcript Deadline set for 5/9/2013. Release of Transcript Restriction set for 7/8/2013.(McGuirk, Kelly) (Entered: 04/03/2013)
142 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a TRIAL proceeding held on 3/19/2013 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: 04/03/2013)
143 POST TRIAL MEMORANDUM. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales.(Parks, Shawna) (Entered: 04/08/2013)
144 POST TRIAL MEMORANDUM. Document filed by Michael R. Bloomberg, The City of New York.(Toews, Mark) (Entered: 04/08/2013)
145 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Julia Pinover dated 4/10/2013 re: I write on behalf of Plaintiffs in advance of the settlement conference scheduled before you on April 19, 2013 at 2:00 pm, regarding the following matters in this case. Plaintiffs would like to inform the Court that Julia

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Pinover and Daniel Brown, attorneys for Plaintiffs, will be present in person. Plaintiffs respectfully request that the Court allow Shawna Parks, Plaintiffs' lead counsel, to participate in the conference by telephone as she is in California and not able to travel east at the moment. Likewise, Plaintiffs inform the Court that representatives from organizational plaintiffs Brooklyn Center for Independence of the Disabled ("BCID") and the Center for the Independence of the Disabled, New York ("CIDNY) will attend the settlement conference. However, Plaintiffs respectfully request that the Court allow individual Plaintiffs Tania Morales and Greg Bell to not attend the conference. ENDORSEMENT: APPLICATIONS GRANTED. SO ORDERED. (Signed by Magistrate Judge Frank Maas on 4/9/2013) (djc) Modified on 4/12/2013 (djc). Modified on 4/15/2013 (djc). (Entered: 04/12/2013)
146 TRANSCRIPT of Proceedings re: CONFERENCE held on 3/4/2013 before Judge Jesse M. Furman. Court Reporter/Transcriber: Paula Speer, (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 5/13/2013. Redacted Transcript Deadline set for 5/23/2013. Release of Transcript Restriction set for 7/22/2013.(Rodriguez, Somari) (Entered: 04/19/2013)
147 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 3/4/13 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...(Rodriguez, Somari) (Entered: 04/19/2013)
148 ORDER: Pursuant to the settlement conference held on April 19, 2013, counsel for the parties shall exchange their proposals, with copies to my Chambers, by April 26, 2013, at 12 p.m. A telephone conference shall be held on April 29, 2013, at 9:30 a.m. Counsel for the plaintiffs should initiate the call. Accordingly, the schedule for the post−trial submission of proposed findings of fact and conclusions of law shall be extended by one week. (Telephone Conference set for 4/29/2013 at 09:30 AM before Magistrate Judge Frank Maas.)(Signed by Magistrate Judge Frank Maas on 4/22/2013) Copies Sent by Chambers to Hon Jesse M. Furman (djc) (Entered: 04/23/2013)
149 ENDORSED LETTER addressed to Judge Jesse M. Furman from Rebecca S. Tinio dated 4/23/2013 re: The Government respectfully requests a corresponding one−week extension of the deadline for submission of its Statement of Interest to May 10, 2013, in order to submit an appropriately tailored Statement. ENDORSEMENT: Application GRANTED. (Signed by Judge Jesse M. Furman on 4/23/2013) (lmb) (Entered: 04/24/2013)
Minute Entry for proceedings held before Magistrate Judge Frank Maas: Telephone Conference held on 4/29/2013. (Chambers, Richalyn) (Entered: 04/29/2013)
150 ORDER: Pursuant to the telephone conference held on April 29, 2013, a further telephone conference shall be held on May 2, 2013, at 2 p.m. Plaintiffs' counsel should initiate the call. (Telephone Conference set for 5/2/2013 at 02:00 PM before Magistrate Judge Frank Maas.) (Signed by Magistrate Judge Frank Maas on 4/29/2013)Copies Sent By Chambers to Hon. Jesse M. Furman. (djc) (Entered: 04/30/2013)
Minute Entry for proceedings held before Magistrate Judge Frank Maas: Telephone Conference held on 5/2/2013. (Chambers, Richalyn) (Entered: 05/02/2013)
151 POST TRIAL MEMORANDUM. Document filed by United States Of America. (Attachments: # 1 Appendix)(Tinio, Rebecca) (Entered: 05/10/2013)
152 POST TRIAL MEMORANDUM. Document filed by United States Of America. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Tinio, Rebecca) (Entered: 05/10/2013)
153 PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW. Document filed by Michael R. Bloomberg, The City of New York.(Toews, Mark) (Entered: 05/10/2013)

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154 PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales.(Parks, Shawna) (Entered: 05/10/2013)
155 ENDORSED LETTER addressed to Judge Jesse M. Furman from Martha A. Calhoun dated 5/15/2013 re: The parties have conferred and share in the understanding that, consistent with the Court's March 19, 2013 Order (Docket No. 124), the deadline for submissions is now May 24, 2013, which is two weeks subsequent to the May 10, 2013 filing of the Statement; however, Defendants nonetheless seek confirmation of that deadline from the court to eliminate the possibility of any misunderstanding. ENDORSEMENT: So ordered. (Signed by Judge Jesse M. Furman on 5/17/2013) (lmb) Modified on 5/20/2013 (lmb). (Entered: 05/17/2013)
156 FILING ERROR − WRONG EVENT TYPE SELECTED FROM MENU − OPPOSITION BRIEF re: 151 Post Trial Memorandum Response to Statement of Interest of the United States. Document filed by Michael R. Bloomberg, The City of New York.(Calhoun, Martha) Modified on 5/28/2013 (ka). (Entered: 05/24/2013)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − EVENT TYPE ERROR. Note to Attorney Martha Anne Calhoun to RE−FILE Document 156 Opposition Brief. Use the event type Response(non−motion) found under the event list Other Answers. (ka) (Entered: 05/28/2013)
157 RESPONSE re: 151 Post Trial Memorandum Response to DOJ statement of interest. Document filed by Michael R. Bloomberg, The City of New York. (Calhoun, Martha) (Entered: 05/28/2013)
158 NOTICE OF CHANGE OF ADDRESS by Julia Miriam Pinover on behalf of All Plaintiffs. New Address: Disability Rights Advocates, 40 Worth Street, 10th Floor, New York, New York, United States 10013, 212−644−8644. (Pinover, Julia) (Entered: 08/06/2013)
159 OPINION AND ORDER: As noted above, the trial in this case was limited to the question of liability. Having found that the City violated the ADA, the Rehabilitation Act, and the NYCHRL in several respects, the Court will proceed to consider the issue of how to remedy those violations. Given the complexity and potential expense involved, there is no question that crafting an appropriate remedy would be better accomplished by those with expertise in such matters and through negotiation, whether court−supervised or otherwise, than by Court order. Further, the United States has indicated that it is able and willing to assist the parties and, if necessary, the Court in addressing the question of remedy. (Statement of Interest of the United States 1 n.2). The parties are therefore directed to meet and confer − in person and with representatives of the Department of Justice, if they elect to participate − about the most productive means of resolving the question of remedies through alternative dispute mechanisms. At the same time, mindful that the Court will impose remedies if the parties cannot agree on them, the parties shall discuss the process and schedule for the remaining litigation, including but not limited to whether there is a need for additional discovery, whether the parties anticipate motion practice, and whether there is a need for another trial on remedies. The parties shall submit a joint status letter with respect to these matters and any other information that the parties believe may assist the Court in advancing the case to settlement or trial no later than November 26, 2013. They shall then appear for a conference with the Court on December 3, 2013 at 3:15 p.m. in Courtroom 1105 of the Thurgood Marshall Courthouse, 40 Centre Street, New York, New York. (Status Conference set for 12/3/2013 at 03:15 PM in Courtroom 1105, 40 Centre Street, New York, NY 10007 before Judge Jesse M. Furman.) (Signed by Judge Jesse M. Furman on 11/7/2013) (tn) (Entered: 11/07/2013)
160 LETTER addressed to Judge Jesse M. Furman from JULIA PINOVER dated 11/07/2013 re: Plaintiffs Lead Counsel. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales.(Pinover, Julia) (Entered: 11/07/2013)
174 INTERNET CITATION NOTE: Material from decision with Internet citation re: 159 Memorandum & Opinion. (fk) (Entered: 06/10/2014)

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161 JOINT LETTER addressed to Judge Jesse M. Furman from SID WOLINSKY and MARTHA CALHOUN dated NOVEMBER 26, 2013 re: Joint Status Letter for Brooklyn Center for Independence of the Disabled, et al. v. Bloomberg, et al. 11−Civ−6690. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales.(Pinover, Julia) (Entered: 11/26/2013)
Minute Entry for proceedings held before Judge Jesse M. Furman: Status Conference held on 12/3/2013. Julia Pinover and Sid Wolinsky present for the Plaintiffs. Mark Toews, Martha Callhoun and Carolyn Kruk present for the Defendants. Court reporter present. (ab) (Entered: 01/07/2014)
162 ORDER: As discussed on the record at the conference held yesterday, it is hereby ORDERED that the Honorable James M. McGuire is appointed as a mediator to assist the parties in reaching agreement and resolving disputes with respect to remedies in this case. The parties shall participate in the mediation in good faith, and Defendants shall bear the costs of the mediation. The parties shall bring any disputes with respect to discovery to the mediator in the first instance. If the mediator does not resolve any such dispute, either party may seek a ruling from the Court by filing a letter motion, not to exceed three pages. It is further ORDERED that the parties shall submit a joint status letter, no later than February 27, 2014, that (1) updates the Court on the status of remedies discussions and (2) indicates whether the parties believe there is a need for a conference. Unless the Court indicates otherwise, the parties shall appear for a conference with the Court on March 5, 2014, at 3 p.m., in Courtroom 1105 of the Thurgood Marshall Courthouse, 40 Centre Street, New York, New York., ( Status Conference set for 3/5/2014 at 03:00 PM in Courtroom 1105, 40 Centre Street, New York, NY 10007 before Judge Jesse M. Furman.) (Signed by Judge Jesse M. Furman on 12/4/2013) (lmb) (Entered: 12/04/2013)
163 TRANSCRIPT of Proceedings re: CONFERENCE held on 12/3/2013 before Judge Jesse M. Furman. Court Reporter/Transcriber: Paula Speer, (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 2/3/2014. Redacted Transcript Deadline set for 2/13/2014. Release of Transcript Restriction set for 4/11/2014.(Rodriguez, Somari) (Entered: 01/08/2014)
164 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 12/3/13 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...(Rodriguez, Somari) (Entered: 01/08/2014)
165 JOINT LETTER addressed to Judge Jesse M. Furman from Sid Wolinsky dated 02/27/14 re: Joint Status Update. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Attachments: # 1 Attachment A)(Wolinsky, Sid) (Entered: 02/27/2014)
166 JOINT LETTER addressed to Judge Jesse M. Furman from Sid Wolinsky & Martha Calhoun dated 02/27/14 re: Joint Status Update. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Attachments: # 1 Attachment A)(Wolinsky, Sid) (Entered: 02/28/2014)
167 MEMO ENDORSEMENT on re: 166 Letter, filed by Center for Independence of the Disabled, New York, Brooklyn Center for Independence of the Disabled, Tania Morales, Gregory D. Bell. ENDORSEMENT: In light of the parties' progress and the ongoing negotiations, the Court sees no need for a conference on March 5, 2014. Accordingly, the conference is ADJOURNED to May 7, 2014, at 3 p.m., at which point the Court will, in all likelihood, set deadlines and dates for litigation of the remedy issues, including, if need be, trial. No later than the Thursday before that conference, the parties shall file a joint letter updating the Court on the status of their negotiations and proposing dates and deadlines for the remainder of the litigation. If the parties believe that a conference before May 7, 2014, is warranted, they should

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advise the Court by letter. SO ORDERED. (Signed by Judge Jesse M. Furman on 3/4/2014) (mro) (Entered: 03/04/2014)
Set/Reset Hearings: Status Conference set for 5/7/2014 at 03:00 PM before Judge Jesse M. Furman. (mro) (Entered: 03/04/2014)
168 LETTER MOTION to Adjourn Conference Unopposed Request to Change Date of May 2014 Status Conference addressed to Judge Jesse M. Furman from SID WOLINSKY dated MARCH 10, 2014. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales.(Wolinsky, Sid) (Entered: 03/10/2014)
169 ORDER granting 168 Letter Motion to Adjourn Conference. The Pretrial Conference is ADJOURNED to 5/19/2014 at 03:45 PM in Courtroom 1105, 40 Centre Street, New York, NY 10007 before Judge Jesse M. Furman. (HEREBY ORDERED by Judge Jesse M. Furman)(Text Only Order) (Furman, Jesse) (Entered: 03/10/2014)
170 LETTER MOTION for Extension of Time and Joint Status Update addressed to Judge Jesse M. Furman from SID WOLINSKY dated May 15, 2014. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales.(Wolinsky, Sid) (Entered: 05/15/2014)
171 ORDER granting 170 Letter Motion for Adjournment. The Court commends the parties and Judge McGuire on their efforts to resolve the remedy issues in this case without the need for further Court intervention. In light of the parties' letter, the conference is ADJOURNED to June 16, 2014, at 2 p.m., at which point the Court will, in the absence of a resolution, set deadlines and dates for litigation of the remedy issues, including, if need be, trial. No later than the Thursday before that conference, the parties shall file a joint letter updating the Court on the status of their negotiations and, if appropriate, proposing dates and deadlines for the remainder of the litigation. If the parties believe that a conference before June 16, 2014, is warranted, they should advise the Court by letter. (HEREBY ORDERED by Judge Jesse M. Furman)(Text Only Order) (Furman, Jesse) (Entered: 05/15/2014)
172 LETTER MOTION to Adjourn Conference Joint Status Update addressed to Judge Jesse M. Furman from SID WOLINSKY dated JUNE 6, 2014. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales.(Wolinsky, Sid) (Entered: 06/06/2014)
173 ORDER granting 172 Letter Motion to Adjourn Conference. The conference is ADJOURNED to June 30, 2014, at 11:00 AM in Courtroom 1105, 40 Centre Street, New York, NY 10007 before Judge Jesse M. Furman. Per the terms of the Court's May 15, 2014 Order, the parties shall file a joint letter by the Thursday before the conference. (HEREBY ORDERED by Judge Jesse M. Furman)(Text Only Order) (Furman, Jesse) (Entered: 06/06/2014)
175 ORDER: IT IS HEREBY ORDERED that the conference in this matter, previously scheduled for Monday, June 30, 2014, at 11 a.m., is RESCHEDULED for Wednesday, June 25, 2014, at 11 a.m. in Courtroom 1105 of the Thurgood Marshall Courthouse, 40 Centre Street, New York, New York. SO ORDERED. (Pretrial Conference set for 6/25/2014 at 11:00 AM in Courtroom 1105 of the Thurgood Marshall Courthouse, 40 Centre Street, New York, NY 10007 before Judge Jesse M. Furman.) (Signed by Judge Jesse M. Furman on 6/13/2014) (kgo) (Entered: 06/13/2014)
176 JOINT LETTER addressed to Judge Jesse M. Furman from SID WOLINSKY and MARK TOEWS dated JUNE 19, 2014 re: Remedy Negotiations in Brooklyn Center for Independence of the Disabled v. DeBlasio, Joint Status Report. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales.(Wolinsky, Sid) (Entered: 06/19/2014)
177 ORDER: The parties are directed to send a joint letter to the Court by the close of business on June 26, 2014, proposing interim discovery deadlines for fourteen hours of depositions for fact discovery, limited document production, expert reports, and expert depositions. The parties are directed to send a joint letter to the Court no later than

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Thursday, July 25, 2014, informing the Court of the status of settlement discussions and addressing the question of whether an interim order memorializing any agreements between the parties should be entered. On Monday, September 8, 2014, by noon, the parties shall file a Joint Pretrial Order. By Monday, September 15, 2014, the parties shall file any reply memorandum of law to any memorandum filed with the Joint Pre−Hearing Order and provide two (2) courtesy copies to the Court. The final pretrial conference is scheduled for Tuesday, September 23, 2014, at 3:30 p.m., in Courtroom 1105 of the Thurgood Marshall Courthouse, 40 Centre Street, New York, New York. It is ORDERED that the trial will begin on Monday, October 6, 2014. The trial will be conducted from 9:00 a.m. until 2:30 p.m. each hearing day, with one and only one half hour break. It is further ORDERED that the following procedures shown herein shall govern the conduct of the hearing. SO ORDERED. (Final Pretrial Conference set for 9/23/2014 at 03:30 PM in Courtroom 1105 of the Thurgood Marshall Courthouse, 40 Centre Street, New York, NY 10007 before Judge Jesse M. Furman. Pretrial Order due by 9/8/2014. Bench Trial set for 10/6/2014 at 09:00 AM before Judge Jesse M. Furman.) (Signed by Judge Jesse M. Furman on 6/25/2014) (kgo) (Entered: 06/25/2014)
Minute Entry for proceedings held before Judge Jesse M. Furman: Status Conference held on 6/25/2014. Dan Brown and Sid Wolinsky present for the Plaintiffs. Mark Toews and Carolyn Kruk present for the Defendants. Rebecca Tinio present for the US Attorney's Office for the United States. Court reporter present. (ab) (Entered: 07/01/2014)
178 JOINT LETTER addressed to Judge Jesse M. Furman from SID WOLINSKY dated JUNE 26, 2014 re: Joint Letter Re: Proposed Discovery Deadlines. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales.(Wolinsky, Sid) (Entered: 06/26/2014)
179 MEMO ENDORSEMENT on re: 178 Letter, filed by Center for Independence of the Disabled, New York, Brooklyn Center for Independence of the Disabled, Tania Morales, Gregory D. Bell. ENDORSEMENT: These dates are hereby adopted. The parties are cautioned that the trial date in this matter is a firm date. Because of that, and given the other pretrial deadlines set at the conference held yesterday, the discovery deadlines will not be extended absent extraordinary circumstances. (Signed by Judge Jesse M. Furman on 6/27/2014) (mro) (Entered: 06/30/2014)
Set/Reset Deadlines: Deposition due by 9/3/2014. (mro) (Entered: 06/30/2014)
180 NOTICE OF APPEARANCE by Christine Hsiao−Ting Chuang on behalf of Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Chuang, Christine) (Entered: 07/03/2014)
181 ORDER: The Court will hold a brief telephone conference in this matter on Thursday, July 24, 2014, at 11:45 a.m. At that time, Plaintiffs' counsel should telephone the Court by calling (212) 805−0282 once all of the parties are on the line. (Signed by Judge Jesse M. Furman on 7/23/2014) (ab) (Entered: 07/23/2014)
182 LETTER MOTION for Extension of Time addressed to Judge Jesse M. Furman from Sid Wolinsky, Mark Toews dated July 25, 2014. Document filed by Gregory D. Bell, Michael R. Bloomberg, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales, The City of New York.(Wolinsky, Sid) (Entered: 07/25/2014)
183 AMENDED LETTER MOTION for Extension of Time and Joint Status Letter addressed to Judge Jesse M. Furman from the Parties dated July 25, 2014. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales.(Wolinsky, Sid) (Entered: 07/25/2014)
184 ORDER granting 183 Letter Motion for Extension of Time. The Court hereby grants the extensions set forth in the letter motion at Docket No. 183. The September 15th deadline for the submission of any reply memoranda and the trial date remain in effect. In addition, the telephone conference that was scheduled for July 25, 2014, is hereby RESCHEDULED for August 4, 2014, at 11 a.m. At that time, Plaintiff's counsel shall call the Court, with all counsel on the line, at (212) 805−0282. The letter motion at

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Docket No. 182 is denied as moot. (HEREBY ORDERED by Judge Jesse M. Furman)(Text Only Order) (Furman, Jesse) (Entered: 07/27/2014)
Minute Entry for proceedings held before Judge Jesse M. Furman: Telephone Conference held on 8/4/2014. Dan Brown, Christine Hsiao−Ting Chuang and Sid Wolinsky present via telephone for the Plaintiffs. Mark Towes and Carolyn Kruk present via telephone for the Defendants. Court reporter present. (ab) (Entered: 08/12/2014)
185 LETTER MOTION for Extension of Time and Joint Status Letter addressed to Judge Jesse M. Furman from Sid Wolinsky, Mark Toews dated August 13, 2014. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales.(Wolinsky, Sid) (Entered: 08/13/2014)
186 ORDER granting 185 Letter Motion for Extension of Time. The discovery deadlines are extended as requested. All other dates and deadlines − including the trial dates − remain the same. (HEREBY ORDERED by Judge Jesse M. Furman)(Text Only Order) (Furman, Jesse) (Entered: 08/14/2014)
187 STATUS REPORT. Remedy Negotiations in Brooklyn Center for Independence of the Disabled v. DeBlasio, Joint Status Letter Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales.(Wolinsky, Sid) (Entered: 08/22/2014)
188 MEMO ENDORSEMENT on re: 187 Status Report, filed by Center for Independence of the Disabled, New York, Brooklyn Center for Independence of the Disabled, Tania Morales, Gregory D. Bell. ENDORSEMENT: The parties shall appear for a conference to address these issues on September 2, 2014, at 4 p.m. In the meantime, all pretrial dates and deadlines are extended by 10 days, except for the final pretrial conference and the trial date, which remain in effect pending further order of the Court. SO ORDERED. (Signed by Judge Jesse M. Furman on 8/27/2014) (mro) (Entered: 08/27/2014)
Set/Reset Hearings: Status Conference set for 9/2/2014 at 04:00 PM before Judge Jesse M. Furman. (mro) (Entered: 08/27/2014)
189 LETTER addressed to Judge Jesse M. Furman from the Plaintiffs dated August 27, 2014 re: Request to Appear Telephonically. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales.(Wolinsky, Sid) (Entered: 08/27/2014)
190 MEMO ENDORSEMENT on re: 189 Letter, filed by Center for Independence of the Disabled, New York, Brooklyn Center for Independence of the Disabled, Tania Morales, Gregory D. Bell. ENDORSEMENT: Application GRANTED. Counsel shall make the necessary arrangements with Chambers. SO ORDERED. (Signed by Judge Jesse M. Furman on 8/27/2014) (mro) (Entered: 08/28/2014)
Minute Entry for proceedings held before Judge Jesse M. Furman: Status Conference held on 9/2/2014. Dan Brown, Christine Chuang (via telephone) and Sid Wolinsky (via telephone) present for the Plaintiffs. Mark Toews and Carolyn Kruk present for the Defendants. Court reporter present. (ab) (Entered: 09/05/2014)
191 ORDER: As discussed at the conference held on September 2, 2014, the existing deadlines in this case, including the date for the final pretrial conference and for trial, are hereby VACATED. The following schedule shall govern further proceedings in this case as further set forth in this order. If trial proves to be necessary, the parties should be prepared to start trial approximately two weeks after the filing of the JPTO., ( Pretrial Order due by 9/30/2014., Responses due by 10/14/2014., Replies due by 10/21/2014.) (Signed by Judge Jesse M. Furman on 9/3/2014) (lmb) (Entered: 09/03/2014)
Terminate Transcript Deadlines (lmb) (Entered: 09/03/2014)
192 TRANSCRIPT of Proceedings re: conference held on 8/4/2014 before Judge Jesse M. Furman. Court Reporter/Transcriber: Denise Richards, (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

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that date it may be obtained through PACER. Redaction Request due 10/6/2014. Redacted Transcript Deadline set for 10/17/2014. Release of Transcript Restriction set for 12/12/2014.(McGuirk, Kelly) (Entered: 09/10/2014)
193 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a conference proceeding held on 8/4/2014 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: 09/10/2014)
194 STATUS REPORT. and Request for Status Conference Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales.(Wolinsky, Sid) (Entered: 09/11/2014)
195 MEMO ENDORSEMENT on re: 194 Status Report filed by Center for Independence of the Disabled, New York, Brooklyn Center for Independence of the Disabled, Tania Morales, Gregory D. Bell. ENDORSEMENT: No later than September 17, 2014, Defendants shall submit a letter indicating whether they object to Plaintiffs' proposed procedure and, if so, the basis for the objection. (Signed by Judge Jesse M. Furman on 9/15/2014) (tn) (Entered: 09/15/2014)
196 LETTER addressed to Judge Jesse M. Furman from Mark G. Toews dated September 17, 2014 re: Plaintiffs' proposed Rule 23 procedure. Document filed by Michael R. Bloomberg, The City of New York.(Toews, Mark) (Entered: 09/17/2014)
197 MEMO ENDORSEMENT on re: 196 Letter filed by Michael R. Bloomberg, The City of New York. ENDORSEMENT: In light of this letter, the Court adopts the proposal set forth in Plaintiffs' letter of September 11, 2014. To the extent necessary, the parties should confer about the particulars in advance of the September 30, 2014 deadline and promptly advise the Court in the event that there are disagreements to be resolved. (Signed by Judge Jesse M. Furman on 9/18/2014) (rjm) (Entered: 09/18/2014)
198 JOINT LETTER addressed to Judge Jesse M. Furman from THE PARTIES dated 9/30/2014 re: STIPULATION OF SETTLEMENT. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Attachments: # 1 Exhibit 1, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G)(Chuang, Christine) (Entered: 09/30/2014)
199 MEMORANDUM OPINION AND ORDER: For the reasons set forth within, the Court will take an intermediate approach and grant Plaintiff's request for an interim order requiring Defendants to comply with the settlement, subject to modification or rejection following notice to the class members and a fairness hearing pursuant to Rule 23(e). It is hereby ORDERED that, no later than October 7, 2014, the parties shall confer and submit a joint proposed order consistent with this Memorandum Opinion and Order. The proposed order should include, among other things, the parties' proposed procedures for giving notice to the class (along with the proposed notice(s)) and a proposed schedule for (1) providing notice; (2) filing a motion (joint or on consent, as the case may be) for approval of the settlement; and (3) the fairness hearing. (Signed by Judge Jesse M. Furman on 10/1/2014) (ab) (Entered: 10/02/2014)
200 JOINT LETTER addressed to Judge Jesse M. Furman from the parties dated October 7, 2014 re: Joint Letter Attaching Proposed Order. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Attachments: # 1 Joint Proposed Order)(Chuang, Christine) (Entered: 10/07/2014)
201 JOINT LETTER addressed to Judge Jesse M. Furman from the parties dated October 14, 2014 re: Revised Emergency Communications and Power Outages MOUs. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Attachments: # 1 Stipulation of Settlement and MOUs)(Chuang, Christine) (Entered: 10/14/2014)

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202 STIPULATION OF SETTLEMENT AND REMEDIAL ORDER: Defendants' obligations with respect to Sheltering, Canvassing, Accessible Transportation, Emergency Communications, and Power Outages are set forth in the individual Memoranda of Understanding ("MOU") attached hereto as Exhibits A through E and are incorporated herein by reference. Defendants shall comply with their obligations as set forth in Exhibits A through E within three years after the Effective Date. Defendants' obligations with respect to the hiring of a Disability and Access and Functional Needs Coordinator and the creation of a Disability Advisory Community Panel ("Coordinator/Panel") are set forth in the MOU attached hereto as Exhibit F and are incorporated herein by reference. Defendants' obligations with respect to High Rise Evacuation are set forth in the individual MOU attached hereto as Exhibit G and are incorporated herein by reference. Defendants shall comply with their obligations as set forth in Exhibit G within four years after the Effective Date, and as further set forth in this order. Per the Court's Memorandum and Opinion dated October 2, 2014 (Docket No. 199), this Order is adopted subject to modification − or rejection − following notice to class members and the fairness hearing to be held pursuant to a separate order to be entered today. (Signed by Judge Jesse M. Furman on 10/15/2014) (tn) (Entered: 10/15/2014)
203 ORDER REGARDING INTERIM RELIEF, NOTICE TO THE CLASS, AND FAIRNESS HEARING: that the Court GRANTS Plaintiffs' Request for Interim Relief and, by separate order today, adopts the parties' stipulation of settlement and attached memoranda of understanding, subject to modification or rejection of the settlement after notice to the class and a fairness hearing pursuant to this Order. The Court hereby approves, as to form and content, the proposed Notice to the class, attached as Exhibit A, subject to the modifications as further set forth. The following schedule will govern the proceedings relating to the proposed settlement: No later than October 27, 2014, the parties shall comply with the notification requirements of the Class Action Fairness Act. By the same date, the parties shall post or distribute the Notice in the manner described above. The Notice shall remain available through the date of the fairness hearing. December 29, 2014, is the deadline for submission to the Court of objections to the proposed settlement, with copies to counsel for the parties. Class members may present objections at the fairness hearing only if they have submitted written objections and noted their desire to speak at the hearing in accordance with the Notice. By January 16, 2015, the parties shall file a motion for final approval of the settlement, as well as (a) declarations confirming compliance with the Notice provisions set forth herein and (b) written responses to objections, if any. Any opposition to such motion shall be filed within two weeks; any reply shall be filed within one week thereafter. On February 13, 2015, at 10 a.m., the Court will hold a fairness hearing in Courtroom 1105 of the Thurgood Marshall United States Courthouse, 40 Centre Street, New York, NY 10007 to address all necessary matters concerning the settlement. (Motions due by 1/16/2015.) (Fairness Hearing set for 2/13/2015 at 10:00 AM in Courtroom 1105, 40 Centre Street, New York, NY 10007 before Judge Jesse M. Furman.) (Signed by Judge Jesse M. Furman on 10/15/2014) (tn) (Entered: 10/15/2014)
204 NOTICE of Proposed Class Action Settlement Under 28 U.S.C. § 1715. Document filed by Michael R. Bloomberg, The City of New York. (Attachments: # 1 Exhibit A: Complaint, # 2 Exhibit B: First Amended Complaint, # 3 Exhibit Fed. R. Civ. P. 23(e)(1) Notice, # 4 Exhibit D: Stipulation of Settlement and Remedial Order)(Kruk, Carolyn) (Entered: 10/24/2014)
205 CERTIFICATE OF SERVICE of Notice of Class Action Settlement Under 28 U.S.C. § 1715 served on federal and state attorneys general on October 24, 2014. Service was made by mail. Document filed by Michael R. Bloomberg, The City of New York. (Kruk, Carolyn) (Entered: 10/24/2014)
206 NOTICE of Withdrawal of Counsel. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Chuang, Christine) (Entered: 01/08/2015)
207 MEMO ENDORSEMENT on re: 206 Notice (Other) filed by Center for Independence of the Disabled, New York, Brooklyn Center for Independence of the Disabled, Tania Morales, Gregory D. Bell. ENDORSEMENT: SO ORDERED. Attorney Julia Miriam Pinover terminated. (Signed by Judge Loretta A. Preska on 1/9/2015) (tn) (Entered: 01/12/2015)

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208 MOTION for Settlement NOTICE OF PLAINTIFFS MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales.(Chuang, Christine) (Entered: 01/16/2015)
209 MEMORANDUM OF LAW in Support re: 208 MOTION for Settlement NOTICE OF PLAINTIFFS MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT. PLAINTIFFS MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Attachments: # 1 Text of Proposed Order)(Chuang, Christine) (Entered: 01/16/2015)
210 DECLARATION of Sid Wolinsky in Support re: 208 MOTION for Settlement NOTICE OF PLAINTIFFS MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT.. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Attachments: # 1 Exhibit A: Stipulation of Settlement and Remedial Order, # 2 Exhibit B: Resume of Sid Wolinsky, # 3 Exhibit C: Resume of Christine Chuang, # 4 Exhibit D: Resume of Daniel Brown)(Chuang, Christine) (Entered: 01/16/2015)
211 DECLARATION of Christine Chuang in Support re: 208 MOTION for Settlement NOTICE OF PLAINTIFFS MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT.. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Chuang, Christine) (Entered: 01/16/2015)
212 DECLARATION of Carolyn Kruk in Support re: 208 MOTION for Settlement NOTICE OF PLAINTIFFS MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT.. Document filed by Michael R. Bloomberg, The City of New York. (Toews, Mark) (Entered: 01/16/2015)
213 ORDER: At the Fairness Hearing to be held on February 13, 2015, the parties should be prepared to address, in addition to the general fairness of the settlement, how the memorandum of understanding pertaining to the evacuation of people with disabilities from high rise buildings (Wolinsky Decl. (Docket No. 210) ("High Rise Evacuation MOU"), Ex. A, at Ex. G) remedies the deficiencies identified in the Court's November 7, 2013 Opinion and Order (Docket No. 159). Specifically, the parties should be prepared to discuss how creation of a Task Force provides the remedies to which Plaintiffs are entitled given the Court's Opinion and Order, what assurances the Court can have that the Task Force will develop meaningful and adequate remedies, and how to ensure that any such remedies are implemented in a timely fashion. (Signed by Judge Jesse M. Furman on 2/9/2015) (tn) (Entered: 02/09/2015)
214 ORDER: Pursuant to Federal Rule of Civil Procedure 25(d), the Clerk of Court is directed to substitute Bill de Blasio for Defendant Michael R. Bloomberg and to amend the caption accordingly. (Signed by Judge Jesse M. Furman on 2/9/2015) (tn) (Entered: 02/09/2015)
***DELETED DOCUMENT. Deleted document number 215 Order. The document was incorrectly filed in this case. (tn) (Entered: 02/10/2015)
215 JOINT LETTER MOTION for Extension of Time to Negotiate Fees and Costs addressed to Judge Jesse M. Furman from Christine Chuang dated February 10, 2015. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Attachments: # 1 Exhibit A)(Chuang, Christine) (Entered: 02/10/2015)
216 STIPULATION AND ORDER RE DEADLINE TO NEGOTIATE ATTORNEYS' FEES AND COSTS: The time frame for the negotiating the issue of attorneys' fees and costs will be extended an additional 75 days from February 12,2015 to April 28, 2015. In the event the parties are unable to agree on the amount of attorneys' fees and costs to be awarded to Plaintiffs counsel, Plaintiffs' counsel will file a motion with the Court. The Clerk of Court is directed to terminate Docket No. 215. (Signed by Judge Jesse M. Furman on 2/10/2015) (ab) (Entered: 02/10/2015)

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Minute Entry for proceedings held before Judge Jesse M. Furman: Fairness Hearing held on 2/13/2015. Dan Brown and Sid Wolinsky present for the Plaintiffs. Mark Toews present for the Defendants. Court reporter present. (ab) (Entered: 02/13/2015)
217 ORDER. As discussed on the record at the hearing held today, it is hereby ORDERED that, no later than February 27, 2015, the parties shall submit either a joint letter or individual letters discussing: (1) The fairness, reasonableness, and adequacy of the settlement in light of the questions posed by the Court at todays fairness hearing concerning the memorandum of understanding regarding high−rise evacuations. In particular, the parties should address what actions the Court could permissibly take, if the settlement were approved, should the Task Force fail to develop recommendations by the stated deadline, including but not limited to whether the Court would have the authority upon a motion for specific enforcement or contempt to craft and impose its own remedies for the Courts prior findings of liability; and (2) Whether the Court has the authority under Federal Rule of Civil Procedure 23 to approve only part of the Settlement Agreement or whether the Settlement Agreement must stand or fall as a whole. It is further ORDERED that the parties shall appear for an additional hearing on the fairness of the proposed settlement on March 6, 2015, at 10:00 a.m. in Courtroom 1105 of the Thurgood Marshall Courthouse, 40 Centre Street, New York, New York. (Fairness Hearing set for 3/6/2015 at 10:00 AM in Courtroom 1105, U.S. Courthouse, 40 Centre Street, New York, NY 10007 before Judge Jesse M. Furman.) (Signed by Judge Jesse M. Furman on 2/13/2015) (rjm) (Entered: 02/13/2015)
218 LETTER addressed to Judge Jesse M. Furman from Christine Chuang dated Feb. 27, 2015 re: Plaintiffs Letter Pursuant to Courts Feb. 13, 2015 Order. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales.(Chuang, Christine) (Entered: 02/27/2015)
219 LETTER addressed to Judge Jesse M. Furman from Mark G. Toews dated February 27, 2015 re: the Court's February 13, 2015 Order. Document filed by Michael R. Bloomberg, The City of New York, Bill de Blasio.(Toews, Mark) (Entered: 02/27/2015)
220 LETTER addressed to Judge Jesse M. Furman from Plaintiffs' Counsel dated March 5, 2015 re: Request to Appear by Telephone. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales.(Chuang, Christine) (Entered: 03/05/2015)
221 MEMO ENDORSEMENT on re: 220 Letter filed by Center for Independence of the Disabled, New York, Brooklyn Center for Independence of the Disabled, Tania Morales, Gregory D. Bell. ENDORSEMENT: The Court would prefer an in person appearance, but assuming counsel cannot make it in person, the application is GRANTED. Counsel should make the necessary arrangements with Chambers. SO ORDERED. (Signed by Judge Jesse M. Furman on 3/05/2015) (ama) (Entered: 03/05/2015)
222 ORDER GRANTING MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT granting 208 Motion for Settlement: The Court hereby grants final approval of the Settlement. The Court finds that the Settlement is fair, adequate, and reasonable to all known and potential class members; and as further set forth in this order. The Clerk of Court is directed to close this case. (Signed by Judge Jesse M. Furman on 3/6/2015) (tn) (Entered: 03/06/2015)
Terminate Transcript Deadlines (tn) (Entered: 03/06/2015)
Minute Entry for proceedings held before Judge Jesse M. Furman: Fairness Hearing held on 3/6/2015. Dan Brown present for the Plaintiffs. Mark Towes and Carolyn Kruk present for the Defendants. Court reporter present. (ab) (Entered: 03/26/2015)
223 TRANSCRIPT of Proceedings re: CONFERENCE held on 3/6/2015 before Judge Jesse M. Furman. Court Reporter/Transcriber: Rebecca Forman, (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 4/17/2015. Redacted Transcript Deadline set for 4/27/2015. Release of Transcript Restriction set for 6/25/2015.(McGuirk, Kelly) (Entered: 03/24/2015)

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224 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 3/6/2015 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: 03/24/2015)
225 TRANSCRIPT of Proceedings re: CONFERENCE held on 2/13/2015 before Judge Jesse M. Furman. Court Reporter/Transcriber: Alena Lynch, (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 4/17/2015. Redacted Transcript Deadline set for 4/27/2015. Release of Transcript Restriction set for 6/25/2015.(McGuirk, Kelly) (Entered: 03/24/2015)
226 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 2/13/2015 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: 03/24/2015)
227 STATUS REPORT. Document filed by The City of New York, Bill de Blasio. (Attachments: # 1 Section A − Sheltering (with Exhibit A), # 2 Section B − PECO (with Exhibits A−C), # 3 PECO (Exhibit D), # 4 PECO (Exhibits E−H), # 5 Section C − Transportation (with Exhibits A−B), # 6 Section D − Communications (with Exhibits A−F), # 7 Section E − Power Outage, # 8 Section F − DAFN, # 9 Section G − High Rise Evacuation (with Exhibit A))(Kruk, Carolyn) (Entered: 04/15/2015)
228 LETTER MOTION for Extension of Time addressed to Judge Jesse M. Furman from Mark G. Toews dated April 22, 2015. Document filed by Michael R. Bloomberg, The City of New York, Bill de Blasio.(Toews, Mark) (Entered: 04/22/2015)
229 ORDER granting 228 Letter Motion for Extension of Time. The deadline is extended by 30 days. The parties should not expect any further extensions. (HEREBY ORDERED by Judge Jesse M. Furman)(Text Only Order) (Furman, Jesse) (Entered: 04/23/2015)
230 MOTION for Attorney Fees . Document filed by Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales.(Chuang, Christine) (Entered: 05/28/2015)
231 FILING ERROR − WRONG EVENT TYPE SELECTED FROM MENU − MOTION for Attorney Fees Memorandum in Support of. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales.(Chuang, Christine) Modified on 5/29/2015 (db). (Entered: 05/28/2015)
232 DECLARATION of Sid Wolinsky in Support re: 231 MOTION for Attorney Fees Memorandum in Support of.. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Chuang, Christine) (Entered: 05/28/2015)
233 DECLARATION of Dan Brown in Support re: 231 MOTION for Attorney Fees Memorandum in Support of.. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Chuang, Christine) (Entered: 05/28/2015)
234 DECLARATION of Richard Pearl in Support re: 231 MOTION for Attorney Fees Memorandum in Support of.. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Attachments: # 1 Exhibit A−F)(Chuang, Christine) (Entered: 05/28/2015)

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235 AFFIRMATION of Wayne Outten in Support re: 231 MOTION for Attorney Fees Memorandum in Support of.. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Attachments: # 1 Exhibit A)(Chuang, Christine) (Entered: 05/28/2015)
236 DECLARATION of William Alderman in Support re: 231 MOTION for Attorney Fees Memorandum in Support of.. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Attachments: # 1 Exhibit A)(Chuang, Christine) (Entered: 05/28/2015)
237 DECLARATION of Daniel Mason in Support re: 231 MOTION for Attorney Fees Memorandum in Support of.. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Attachments: # 1 Exhibit A)(Chuang, Christine) (Entered: 05/28/2015)
238 DECLARATION of Susan Dooha in Support re: 231 MOTION for Attorney Fees Memorandum in Support of.. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Chuang, Christine) (Entered: 05/28/2015)
***NOTICE TO ATTORNEY TO RE−FILE DOCUMENT − EVENT TYPE ERROR. Notice to Attorney Christine Hsiao−Ting Chuang to RE−FILE Document 231 MOTION for Attorney Fees Memorandum in Support of. Use the event type Memorandum in Support of Motion found under the event list Replies, Opposition and Supporting Documents. (db) (Entered: 05/29/2015)
239 MEMORANDUM OF LAW in Support re: 230 MOTION for Attorney Fees . . Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Chuang, Christine) (Entered: 05/29/2015)
240 FIRST LETTER MOTION for Extension of Time to File Response/Reply as to 230 MOTION for Attorney Fees . addressed to Judge Jesse M. Furman from Mark G. Toews dated June 5, 2015. Document filed by Michael R. Bloomberg, The City of New York, Bill de Blasio.(Toews, Mark) (Entered: 06/05/2015)
241 ORDER granting 240 Letter Motion for Extension of Time to File Response/Reply re 230 MOTION for Attorney Fees. Any opposition shall be filed by 6/25/2015; any reply shall be filed by 7/2/2015. (HEREBY ORDERED by Judge Jesse M. Furman)(Text Only Order) (Furman, Jesse) (Entered: 06/05/2015)
242 MEMORANDUM OF LAW in Opposition re: 230 MOTION for Attorney Fees . . Document filed by Michael R. Bloomberg, The City of New York, Bill de Blasio. (Toews, Mark) (Entered: 06/25/2015)
243 REPLY MEMORANDUM OF LAW in Support re: 230 MOTION for Attorney Fees . . Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Chuang, Christine) (Entered: 07/02/2015)
244 DECLARATION of Sid Wolinsky ISO Reply in Support re: 230 MOTION for Attorney Fees .. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Attachments: # 1 Exhibit A)(Chuang, Christine) (Entered: 07/02/2015)
245 DECLARATION of Daniel L.Brown ISO Reply in Support re: 230 MOTION for Attorney Fees .. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Chuang, Christine) (Entered: 07/02/2015)
246 LETTER MOTION for Conference re: 230 MOTION for Attorney Fees . Plaintiffs Request for Oral Argument re Plaintiffs Motion for Reasonable Attorneys Fees and Costs addressed to Judge Jesse M. Furman from Christine Chuang dated July 2, 2015. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the

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Disabled, Center for Independence of the Disabled, New York, Tania Morales.(Chuang, Christine) (Entered: 07/02/2015)
247 ORDER with respect to 246 Letter Motion for Conference. The Court will advise the parties in the event it determines a conference or oral argument would be helpful. (HEREBY ORDERED by Judge Jesse M. Furman)(Text Only Order) (Furman, Jesse) (Entered: 07/09/2015)
248 NOTICE of Withdrawal of counsel. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Wolinsky, Sid) (Entered: 07/14/2015)
249 LETTER addressed to Judge Jesse M. Furman from Carolyn Kruk dated July 22 2015 re: agreement reached to resolve motion for attorneys' fees. Document filed by The City of New York, Bill de Blasio.(Kruk, Carolyn) (Entered: 07/22/2015)
250 ORDER terminating 230 Motion for Attorney Fees as moot in light of the parties' agreement. (See Docket No. 249). The parties' shall submit their written agreement within thirty days of today. (HEREBY ORDERED by Judge Jesse M. Furman)(Text Only Order) (Furman, Jesse) (Entered: 07/22/2015)
251 STIPULATION OF SETTLEMENT OF PLAINTIFFS' CLAIM FOR ATTORNEYS' FEES AND COSTS: Plaintiffs' claims for attorneys' fees, costs and expenses accrued to date, other than those associated with monitoring activities, are hereby resolved and withdrawn, with prejudice, and without costs, expenses, or fees in excess of the amount specified in paragraph "2" below. The City of New York hereby agrees to pay Plaintiffs the sum of $3,700,000.00 by check made payable to Disability Rights Advocates, one of the law firms for Plaintiffs, in full and final satisfaction of all monetary claims that were or could have been raised in this action, including claims for costs, expenses, and attorneys' fees. Plaintiffs reserve their rights to recover reasonable fees and costs for monitoring the terms of the Settlement Agreement, and as further set forth in this order. (Signed by Judge Jesse M. Furman on 8/21/2015) (tn) (Entered: 08/24/2015)
252 FIRST LETTER MOTION for Extension of Time to File Defendants' Second Status Report addressed to Judge Jesse M. Furman from Mark G. Toews dated October 9, 2015. Document filed by Michael R. Bloomberg, The City of New York, Bill de Blasio.(Toews, Mark) (Entered: 10/09/2015)
253 ORDER granting 252 Letter Motion for Extension of Time to File status report. (HEREBY ORDERED by Judge Jesse M. Furman)(Text Only Order) (Furman, Jesse) (Entered: 10/09/2015)
254 STATUS REPORT. Document filed by The City of New York, Bill de Blasio. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N)(Kruk, Carolyn) (Entered: 10/22/2015)
255 ORDER OF APPOINTMENT: Kari Tatro, Executive Vice President for Emergency Management Operations at BCFS Health and Human Services, shall serve as Plaintiffs' subject matter expert and principal member of the Task Force pursuant to section 1.A of the High Rise MOU. The parties agree that Ms. Tatro has the knowledge, skills, and experience necessary to meaningfully contribute to the work of the Task Force. Ms. Tatro has been and shall continue to participate regularly in the Task Force meetings. Compensation and Payment The City of New York will be responsible for paying the costs of Ms. Tatro's work. Ms. Tatro will be paid at a rate of $250.00 per hour for professional services, $175.00 per hour for the first three hours of her travel time, and $87.50 for every hour of her travel time after three hours. The City of New York will also reimburse Ms. Tatro for all travel expenses (e.g. airfare, transportation, lodging, and a reasonable per diem) in connection with her participation on the Task Force. Ms. Tatro will submit itemized statements of fees and expenses to the parties. The parties will review each statement from Ms. Tatro and inspect it for regularity and reasonableness. Where, after review of the statement and, if necessary, discussion by the parties, there are no disputes concerning the contents therein, the City shall pay the full amount listed on the invoice. In the event there is a dispute concerning Ms. Tatro's statement that cannot be resolved after a discussion amongst the parties, Defendants

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will submit Ms. Tatro's statement to the Court. If the Court determines Ms. Tatro's statement is regular and reasonable, the Court may endorse it in the form that it was received, or in any modified form that the Court deems appropriate. Such endorsement will constitute a direction to the City of New York to pay the amount set forth in Ms. Tatro's statement, or in another amount, in the regular manner in which it pays bills, but not later than 45 calendar days following Court approval. (Signed by Judge Jesse M. Furman on 10/23/2015) (tn) (Entered: 10/23/2015)
256 NOTICE OF APPEARANCE by Jelena Kolic on behalf of Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Kolic, Jelena) (Entered: 11/19/2015)
257 STATUS REPORT. Document filed by Michael R. Bloomberg, The City of New York, Bill de Blasio. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Toews, Mark) (Entered: 04/15/2016)
258 LETTER MOTION for Conference and approval of Proposed Order addressed to Judge Jesse M. Furman from Jelena Kolic dated July 1, 2016. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit)(Kolic, Jelena) (Entered: 07/01/2016)
259 ORDER granting in part and reserving judgment in part on 258 Letter Motion for Conference. The City shall respond to Plaintiffs' letter no later than July 11, 2016, and the parties shall appear for a conference with the Court on July 14, 2016 at 11:00 AM in Courtroom 1105, 40 Centre Street, New York, NY 10007. (HEREBY ORDERED by Judge Jesse M. Furman)(Text Only Order) (Furman, Jesse) (Entered: 07/05/2016)
260 LETTER MOTION to Adjourn Conference currently scheduled for July 14, 2016 addressed to Judge Jesse M. Furman from Carolyn Kruk dated July 6, 2016. Document filed by The City of New York, Bill de Blasio.(Kruk, Carolyn) (Entered: 07/06/2016)
261 ORDER granting 260 Letter Motion to Adjourn Conference. The conference is ADJOURNED to July 19, 2016 at 11:00 AM in Courtroom 1105, 40 Centre Street, New York, NY 10007. (HEREBY ORDERED by Judge Jesse M. Furman)(Text Only Order) (Furman, Jesse) (Entered: 07/06/2016)
262 LETTER addressed to Judge Jesse M. Furman from Mark G. Toews dated July 8, 2016 re: Response to Plaintiffs' July 1, 2016 letter to the Court. Document filed by Michael R. Bloomberg, The City of New York, Bill de Blasio.(Toews, Mark) (Entered: 07/08/2016)
Minute Entry for proceedings held before Judge Jesse M. Furman: Status Conference held on 7/19/2016. Dan Brown and Jelena Kolie present for Plaintiffs. Mark Toews and Carolyn Kruk present for Defendants. Court reporter present. (ab) (Entered: 07/19/2016)
263 ORDER: No later than July 29, 2016, Defendants shall provide to Plaintiffs a chart with three columns containing the follow information, if available: (a) the specific gaps that were identified as requiring policy, procedure and/or a regulatory remedy; (b) the specific recommendations that were developed to address those gaps; and (c) the concrete work plans in place to implement those recommendations, including entities responsible and any applicable dates. By the same date, Defendants shall provide a list of members for each of the subcommittees that will be formed to report to the High Rise Implementation Committee. By the same date, Defendants shall respond to the document requests set forth in Plaintiff's July 1, 2016 letter (Docket No. 258), and, for any documents not produced, shall provide an explanation for their non−production. If there are any disputes, the parties shall promptly meet and confer in an attempt to resolve the dispute before raising it with the Court. No later than August 31, 2016, Defendants shall file a letter updating the Court and Plaintiffs on the status of their sheltering efforts. (Signed by Judge Jesse M. Furman on 7/20/2016) (tn) (Entered: 07/20/2016)
264 TRANSCRIPT of Proceedings re: CONFERENCE held on 7/19/2016 before Judge Jesse M. Furman. Court Reporter/Transcriber: Raquel Robles, (212) 805−0300.

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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 9/16/2016. Redacted Transcript Deadline set for 9/26/2016. Release of Transcript Restriction set for 11/25/2016.(McGuirk, Kelly) (Entered: 08/23/2016)
265 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERNECE proceeding held on 7/19/16 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: 08/23/2016)
266 LETTER addressed to Judge Jesse M. Furman from Carolyn Kruk dated August 31, 2016 re: Update to Plaintiffs and the Court on sheltering. Document filed by The City of New York.(Kruk, Carolyn) (Entered: 08/31/2016)
267 STATUS REPORT. The City's Fourth Progress Report and Exhibits A through K. Document filed by The City of New York. (Attachments: # 1 Exhibit A through F, # 2 Exhibit G through K)(Kruk, Carolyn) (Entered: 10/17/2016)
268 STATUS REPORT. (Fifth Progress Report) Document filed by The City of New York. (Attachments: # 1 Exhibit A (Accessible Communications Policy), # 2 Exhibit B (DAFNC Training), # 3 Exhibit C (AWS Outreach), # 4 Exhibit D (Cover Letter and Survey), # 5 Exhibit E (Cadmus Project Timeline), # 6 Exhibit F (AAR Operations/NYCT Paratransit Coastal Storm/Hurricane Plan), # 7 Exhibit G (Accomodations Options Key), # 8 Exhibit H (Universal Intake Form), # 9 Exhibit I (2016 Symposium Agenda), # 10 Exhibit J (High Rise Overview))(Kruk, Carolyn) (Entered: 04/17/2017)
269 LETTER MOTION for Extension of Time to Comply with Certain Provisions of the Settlement Agreement addressed to Judge Jesse M. Furman from Mark G. Toews dated June 15, 2017. Document filed by The City of New York, Bill de Blasio. (Attachments: # 1 Exhibit Stipulation)(Toews, Mark) (Entered: 06/15/2017)
270 STIPULATION: IT IS HEREBY STIPULATED AND AGREED, BY AND BETWEEN THE UNDERSIGNED, AS FOLLOWS: The parties agree to amend the timelines in paragraph 3 of the Stipulation by extending the deadlines by which time Defendants must comply with their obligations relating to the Sheltering and Transportation Memoranda of Understanding so that paragraph 3 shall now read...The parties agree to amend the timelines in paragraph 18 of the Stipulation by extending the effective period of the Court's jurisdiction with respect to the Sheltering and Transportation Memoranda of Understanding so that paragraph 18 shall now read...and as further set forth herein. The Clerk of Court is directed to terminate Docket No. 269. Motions terminated: 269 LETTER MOTION for Extension of Time to Comply with Certain Provisions of the Settlement Agreement addressed to Judge Jesse M. Furman from Mark G. Toews dated June 15, 2017, filed by The City of New York, Bill de Blasio. (Signed by Judge Jesse M. Furman on 6/16/2017) (ras) (Entered: 06/16/2017)
271 LETTER addressed to Judge Jesse M. Furman from Sid Wolinsky dated June 21, 2017 re: Request the Court to Appoint a Special Master to Resolve Disagreements Between the Parties. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Attachments: # 1 Exhibit A)(Wolinsky, Sid) (Entered: 06/21/2017)
272 ORDER re: 271 Letter re: Request the Court to Appoint a Special Master to Resolve Disagreements Between the Parties, filed by Center for Independence of the Disabled, New York, Brooklyn Center for Independence of the Disabled, Tania Morales, Gregory D. Bell. The Court is inclined to believe that Plaintiffs' application must be made by formal motion, addressing − among other things − the Court's authority to appoint a special master and the relationship between the request and the terms of the parties' settlement. The parties shall appear for a conference to address that question and Plaintiffs' request generally, on June 29, 2017, at 2:30 p.m. Defendants are granted leave to file a letter responding to Plaintiffs' letter no later than June 28, 2017, at noon. (Signed by Judge Jesse M. Furman on 6/22/2017) (Furman, Jesse) (Entered: 06/22/2017)

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273 NOTICE OF APPEARANCE by Rebecca Catherine Serbin on behalf of Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Serbin, Rebecca) (Entered: 06/26/2017)
274 LETTER addressed to Judge Jesse M. Furman from Mark Toews and Carolyn Kruk dated June 28, 2017 re: Plaintiffs' June 21, 2017 letter requesting the appointment of a special master. Document filed by The City of New York, Bill de Blasio.(Kruk, Carolyn) (Entered: 06/28/2017)
NOTICE: The time for the conference in this matter, scheduled for tomorrow, June 29, 2017, is changed from 2:30 p.m. to 3:00 p.m. in Courtroom 1105 of the Thurgood Marshall Courthouse, 40 Centre Street, New York, New York. (Alexandra Smallman, Courtroom Deputy) (Entered: 06/28/2017)
Minute Entry for proceedings held before Judge Jesse M. Furman: Status Conference held on 6/29/2017. Dan Brown and Sid Wolinsky present for Plaintiffs. Dan Towes and Carolyn Kruk present for Defendants. Court reporter present. (ab) (Entered: 07/06/2017)
275 TRANSCRIPT of Proceedings re: Conference held on 6/28/2017 before Judge Jesse M. Furman. Court Reporter/Transcriber: Pamela Utter, (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 8/14/2017. Redacted Transcript Deadline set for 8/24/2017. Release of Transcript Restriction set for 10/23/2017.(Siwik, Christine) (Entered: 07/24/2017)
276 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Conference proceeding held on 6/28/17 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...(Siwik, Christine) (Entered: 07/24/2017)
277 TRANSCRIPT of Proceedings re: CONFERENCE held on 6/29/2017 before Judge Jesse M. Furman. Court Reporter/Transcriber: Pamela Utter, (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 8/16/2017. Redacted Transcript Deadline set for 8/28/2017. Release of Transcript Restriction set for 10/24/2017.(McGuirk, Kelly) (Entered: 07/26/2017)
278 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 6/28/17 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: 07/26/2017)
279 STATUS REPORT. (Sixth Progress Report) Document filed by The City of New York. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C (part 1 of 2), # 4 Exhibit C (part 2 of 2), # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O, # 17 Exhibit P, # 18 Exhibit Q, # 19 Exhibit R, # 20 Exhibit S, # 21 Exhibit T, # 22 Exhibit U, # 23 Exhibit V, # 24 Exhibit W, # 25 Exhibit X)(Kruk, Carolyn) (Entered: 10/16/2017)
280 LETTER MOTION for Extension of Time addressed to Judge Jesse M. Furman from Mark G. Toews dated December 15, 2017. Document filed by Michael R. Bloomberg, The City of New York, Bill de Blasio.(Toews, Mark) (Entered: 12/15/2017)
281 STIPULATION: IT IS HEREBY STIPULATED AND AGREED, BY AND BETWEEN THE UNDERSIGNED, AS FOLLOWS: The parties agree to amend the timelines in paragraph 3 of the Stipulation...The parties agree to amend the timelines in paragraph 18 of the Stipulation... (See document.) The Clerk of Court is directed to terminate Docket No. 280. Motions terminated: 280 LETTER MOTION for Extension

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of Time addressed to Judge Jesse M. Furman from Mark G. Toews dated December 15, 2017, filed by Michael R. Bloomberg, The City of New York, Bill de Blasio. (Signed by Judge Jesse M. Furman on 12/18/2017) (ras) (Entered: 12/18/2017)
282 STATUS REPORT. Seventh Progress Report Document filed by Michael R. Bloomberg, The City of New York. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Errata E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Toews, Mark) (Entered: 04/16/2018)
283 LETTER MOTION for Extension of Time addressed to Judge Jesse M. Furman from Mark G. Toews dated October 11, 2018. Document filed by Michael R. Bloomberg, The City of New York, Bill de Blasio. (Attachments: # 1 Text of Proposed Order Stipulation)(Toews, Mark) (Entered: 10/11/2018)
284 STIPULATION, IT IS HEREBY STIPULATED AND AGREED, BY AND BETWEEN THE UNDERSIGNED, AS FOLLOWS: The parties agree to amend the timelines in paragraph 3 of the Stipulation by extending the deadlines by which time Defendants must comply with their obligations relating to the Sheltering Memorandum of Understanding so that paragraph 3 shall now read as further set forth in this Stipulation. The parties agree to amend the timelines in paragraph 5 of the Stipulation by extending the deadlines by which time Defendants must comply with their obligations relating to the High Rise Evacuation Memorandum of Understanding so that paragraph 5 shall now read as further set forth in this Stipulation. The parties agree to amend the timelines in paragraph 8 of the Stipulation by extending the deadlines by which time Defendants must provide Plaintiffs' counsel and file with the Court their final report relating to the Sheltering Memorandum of Understanding, while leaving the deadlines for submission of final reports for the remaining MOUs referenced in paragraph 8 unchanged, so that paragraph 8 shall now read as further set forth in this Stipulation. The parties agree to amend the timelines in paragraph 9 of the Stipulation by extending the deadlines by which time Defendants must provide Plaintiffs' counsel and file with the Court their final report relating to the Sheltering and High Rise Evacuation Memoranda of Understanding so that paragraph 9 shall now read as further set forth in this Stipulation. The parties agree to amend the timelines in paragraph 17 of the Stipulation by extending the effective period of the Court's jurisdiction with respect to the Sheltering and High Rise Evacuation Memoranda of Understanding, while leaving the effective period of the Court's jurisdiction unchanged for the remaining MOUs referenced in paragraph 17, so that paragraph 17 shall now read as further set forth in this Stipulation. The parties agree to amend the timelines in paragraph 18 of the Stipulation by extending the effective period of the Court's jurisdiction with respect to the Sheltering and High Rise Evacuation Memoranda of Understanding so that paragraph 18 shall now read as further set forth in this Stipulation. The Clerk of Court is directed to terminate Docket No. 283. So Ordered. Motions terminated: 283 LETTER MOTION for Extension of Time addressed to Judge Jesse M. Furman from Mark G. Toews dated October 11, 2018. filed by Michael R. Bloomberg, The City of New York, Bill de Blasio. (Signed by Judge Jesse M. Furman on 10/11/18) (yv) (Entered: 10/12/2018)
285 STATUS REPORT. Defendants' Eighth Progress Report Document filed by Michael R. Bloomberg, The City of New York, Bill de Blasio. (Attachments: # 1 Exhibit A−D, # 2 Exhibit E−G, # 3 Exhibit H−I)(Toews, Mark) (Entered: 10/15/2018)
286 LETTER MOTION for Extension of Time of Jurisdiction Over the Implementation of Terms addressed to Judge Jesse M. Furman from Jelena Kolic dated December 14, 2018. Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Attachments: # 1 Proposed Stipulation)(Serbin, Rebecca) (Entered: 12/14/2018)
287 STIPULATION: IT IS HEREBY STIPULATED AND AGREED, BY AND BETWEEN THE UNDERSIGNED, AS FOLLOWS: The parties agree to amend the timelines in paragraph 3 of the Stipulation by extending the deadlines by which time Defendants must comply with their obligations relating to the Sheltering, Accessible Transportation, and Canvassing MOUs so that paragraph 3 shall now read: "Defendants' obligations with respect to Sheltering, Canvassing, Accessible Transportation, Emergency Communications, and Power Outages are set forth in the individual Memoranda of Understanding attached hereto as Exhibits A through E and are incorporated herein by reference. Defendants complied with their obligations as set

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forth in the Emergency Communications and Power Outages MOUs within three years of the Effective Date. Defendants shall comply with their obligations as set forth in the (a) Accessible Transportation and Canvassing MOUs by January 29, 2019; and (b) Sheltering MOU within four years and six months of the Effective Date." (As further set forth in this stipulation) The Clerk of Court is directed to terminate Docket No. 286. (Signed by Judge Jesse M. Furman on 12/17/2018) (ne) (Entered: 12/17/2018)
288 MOTION for Sid Wolinsky to Withdraw as Attorney . Document filed by Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales.(Serbin, Rebecca) (Entered: 01/04/2019)
289 MEMO ENDORSEMENT granting 288 Motion to Withdraw as Attorney. ENDORSEMENT: Application GRANTED. The Clerk of Court is directed to terminate Mr. Wolinsky as counsel and to terminate Docket No. 288. SO ORDERED. Attorney Sid Wolinsky terminated. (Signed by Judge Jesse M. Furman on 1/4/2019) (ne) (Entered: 01/04/2019)
290 LETTER MOTION for Extension of Time to File Defendants' Ninth Progress Report addressed to Judge Jesse M. Furman from Mark G. Toews dated April 16, 2019. Document filed by The City of New York, Bill de Blasio.(Toews, Mark) (Entered: 04/16/2019)
291 ORDER granting 290 Letter Motion for Extension of Time to File. The deadline for Defendants to submit the Ninth Progress Report is extended nunc pro tunc to April 29, 2019. Future untimely requests for extensions may be denied on the basis of untimeliness alone. (HEREBY ORDERED by Judge Jesse M. Furman)(Text Only Order) (Furman, Jesse) (Entered: 04/23/2019)
292 STATUS REPORT. − Defendants' Ninth Progress Report Document filed by The City of New York. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y)(Kruk, Carolyn) (Entered: 04/29/2019)
293 NOTICE OF APPEARANCE by Rebecca Juliet Rodgers on behalf of Gregory D. Bell, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Tania Morales. (Rodgers, Rebecca) (Entered: 06/27/2019)
294 THIRD LETTER MOTION for Extension of Time to meet the obligations set forth in the Accessible Sheltering MOU addressed to Judge Jesse M. Furman from Carolyn Kruk dated June 27, 2019. Document filed by The City of New York, Bill de Blasio. (Attachments: # 1 Proposed Stipulation and Order)(Kruk, Carolyn) (Entered: 06/27/2019)
295 STIPULATION: IT IS HEREBY STIPULATED AND AGREED, BY AND BETWEEN THEUNDERSIGNED, AS FOLLOWS: Amending Paragraph 3: The parties agree to amend the timeline in paragraph 3 of the Stipulation by extending the deadline by which time Defendants must comply with their obligations relating to the Sheltering MOU so that paragraph 3 shall now read: "Defendants' obligations with respect to Sheltering, Canvassing, Accessible Transportation, Emergency Communications, and Power Outages are set forth in the individual Memoranda of Understanding attached hereto as Exhibits A through E and are incorporated herein by reference. Defendants have complied with their obligations as set forth in the Canvassing, Accessible Transportation, Emergency Communications, and Power Outages MOUs. Defendants shall comply with their obligations as set forth in the Sheltering MOU on or before January 15, 2020." The Clerk of Court is directed to terminate Docket No. 294. (Signed by Judge Jesse M. Furman on 6/28/2019) (ne) (Entered: 06/28/2019)
296 STATUS REPORT. (10th Progress Report) Document filed by The City of New York.(Kruk, Carolyn) (Entered: 10/15/2019)
297 STATUS REPORT. Defendants' Eleventh Progress Report Document filed by The City of New York, Bill de Blasio.(Toews, Mark) (Entered: 01/15/2020)