Case 1:17-cv-02990-KBF Document 1 Filed 04/25/17 Page 1 of 38

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

CENTER FOR INDEPENDENCE OF THE DISABLED, NEW YORK, a nonprofit organization, BROOKLYN CENTER FOR INDEPENDENCE OF THE DISABLED, a nonprofit organization, BRONX INDEPENDENT LIVING SERVICES, a nonprofit organization, HARLEM INDEPENDENT LIVING CENTER, a nonprofit organization, DISABLED IN ACTION OF METROPOLITAN NEW YORK, a nonprofit organization, NEW YORK STATEWIDE SENIOR ACTION COUNCIL, a nonprofit organization, SASHA BLAIRGOLDENSOHN, an individual, CHRIS PANGILINAN, an individual, and DUSTIN JONES, an individual, on behalf of themselves and all others similarly situated,

Case No. 1:17-cv-2990 COMPLAINT

-against-

Plaintiffs,

METROPOLITAN TRANSPORTATION AUTHORITY, a public benefit corporation, VERONIQUE HAKIM, in her official capacity as interim executive director of the Metropolitan Transportation Authority, NEW YORK CITY TRANSIT AUTHORITY, a public benefit corporation, DARRYL C. IRICK, in his official capacity as acting president of the New York City Transit Authority, and THE CITY OF NEW YORK,

Defendants.

INTRODUCTION 1. This class-action lawsuit seeks to remedy the systemic, discriminatory exclusion of hundreds of thousands of New Yorkers with mobility disabilities from New York City’s (“the City”) subway system because the Metropolitan Transportation Authority (“MTA”), New York

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City Transit Authority (“NYC Transit”), and the City of New York (“the City”) (collectively, “Defendants”) fail to maintain the already limited number of elevators in the subway system.
2. Riders with mobility disabilities routinely face frequent elevator outages. These often occur without notice and last as long as several months.
3. In many cases, Defendants provide no warning of the outages in the form of signage or audio announcements.
4. When elevator outages occur, Defendants provide no alternate accommodations to ensure that people that require elevator access can get to their destinations.
5. The level of elevator accessibility in the New York City subway system is already abysmal. Of all major cities in the United States, New York City has by far the lowest percentage of accessible subway service line stations. Only 112 (24%) of the 472 subway service line stations in New York City are wheelchair-accessible. Out of these 112 stations, only 100 are currently operable and offer elevator service in both directions, and an additional 2 are entirely at street level and are accessible without elevators, rendering the subway system only 22% fully accessible. At any given time, this number is even lower due to frequent and regular elevator outages. Publicly available outage data demonstrates that:
• There are an average of at least twenty-five elevator outages per day in the New York City subway system.
• Median outage time is approximately four hours, though many outages last for months at a time.
• The subway system does not provide trained personnel assigned to assist people with disabilities when outages occur.
• Outages are frequently not accompanied by signage describing alternate accommodations and/or accessible routes.
• Defendants do not provide alternate accommodations, such as station-to-station transportation, when elevator outages occur.
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• Even when functioning, subway elevators are often unclean, odiferous, and littered with trash, urine, or feces. 6. The subway is a critical component of living in, working in, and visiting New
York City. It is the largest and the most utilized metro system in the Western world, with daily ridership reaching up to nearly 6,000,000 people and the yearly number of rides totaling almost 1.8 billion. Indeed, commuters in the New York City metropolitan area have the highest rates of public transportation usage out of any metropolitan area in the United States.
7. Access to public transportation is particularly critical for people with mobility disabilities because many of them do not own cars and cannot rely on ridesharing systems, which have limited accessibility options.
8. Defendants routinely deny this critical service to hundreds of thousands of New Yorkers with mobility disabilities. Public data from the MTA demonstrates that over 9,019 elevator outages occurred during the one-year period ending on June 30, 2015. Over 4,100 of those outages were unscheduled—a predictable result of Defendants’ failure to maintain and implement adequate preventative maintenance procedures.
9. Sasha Blair-Goldensohn is a software engineer in Manhattan and a wheelchair user. He repeatedly encounters subway outages forcing him to alter plans and miss appointments. On multiple occasions, Mr. Blair-Goldensohn has been trapped on an inaccessible platform during an unplanned elevator outage and has had to engage in the dangerous and humiliating act of asking strangers to carry him and his wheelchair up or down stairs.
10. Chris Pangilinan is a Brooklyn resident who uses a wheelchair. He uses the subway to commute to work in Manhattan. From November 24, 2014 to March 15, 2017, Mr. Pangilinan personally logged over 200 unplanned outages that forced him to either cancel or alter subway trips.
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11. Dustin Jones, a wheelchair user residing in the Bronx, likewise repeatedly encounters subway outages that make it virtually impossible for him to move about the City freely and independently. Mr. Jones has also had to engage in the humiliating act of asking strangers to assist him in getting up or down stairs when he has been stranded without assistance during elevator outages.
12. The experiences of Mr. Pangilinan, Mr. Blair-Goldensohn, and Mr. Jones are typical of New Yorkers with mobility disabilities who seek to use the subway.
13. Organizational Plaintiffs the Center for the Independence of the Disabled, New York (“CIDNY”), the Brooklyn Center for the Independence of the Disabled (“BCID”), Bronx Independent Living Services (“BILS”), the Harlem Independent Living Center (“HILC”), Disabled In Action of Metropolitan New York (“DIA”), and the New York StateWide Senior Action Council (“StateWide”) (collectively, “Plaintiffs”) have thousands of constituents with mobility disabilities who face similar barriers on a routine basis throughout New York City.
14. Defendants’ failure to maintain the limited number of elevators they provide in the New York City subway system violates federal and local disability rights laws, including Title II of the Americans with Disabilities Act (“ADA”), Section 504 of the Rehabilitation Act of 1973, and the New York City Human Rights Law (“NYCHRL”). These laws prevent public transit providers from denying people with disabilities the benefits, services, accommodations, and facilities they provide to the non-disabled public. They also specifically require that public transit providers maintain, in operative condition, the features of transit facilities that are required to make such facilities readily accessible to and usable by individuals with disabilities. These features include elevators.
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15. As Congress recognized in 1990, “transportation is the linchpin which enables people with disabilities to be integrated and mainstreamed into society.” See H.R. Rep. No. 485 (II), at 37, (1990), reprinted in 1990 U.S.C.C.A.N. 303, 319 (observing that testimony of Executive Director of President's Committee on Employment of People with Disabilities echoed the same: “inaccessible transportation has been identified as the major barrier, second only to discriminatory attitudes”); accord, H.R. Rep. No. 485 (IV), at 25, (1990), reprinted in 1990 U.S.C.C.A.N. 512, 514 (“[Transportation] is a veritable lifeline to the economic and social benefits that our Nation offers its citizens . . . For this reason, the National Council on Disability has declared that ‘accessible transportation is a critical component of a national policy that promotes self-reliance and self-sufficiency of people with disabilities.’”).
16. Defendants’ failure to competently maintain the elevators in operative and sanitary condition, provide adequate notice of elevator outages, and provide alternate accommodations during outages, hurts all New Yorkers and visitors to New York, including the elderly, people with suitcases or strollers, and those transporting heavy items.
17. Plaintiffs attempted to resolve these issues prior to filing a lawsuit, requesting that Defendants commit to prepare and implement a remedial plan that would address their failure to adequately maintain subway elevators for people with mobility disabilities. Defendants, who have known of these problems for years, failed to make such a commitment.
18. Plaintiffs bring this lawsuit on behalf of themselves and all residents and visitors to New York City with mobility disabilities who use or seek to use the subway system.
JURISDICTION AND VENUE 19. This is an action for declaratory and injunctive relief, brought pursuant to the ADA, 42 U.S.C. § 12131 et seq.; Section 504 of the Rehabilitation Act of 1973 (“Section 504”),
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29 U.S.C. § 794 et seq.; and the New York City Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code § 8-101 et seq.
20. This Court has subject matter jurisdiction over this action under 28 U.S.C. §§ 1331 and 1343 for claims arising under the ADA and Section 504, and supplemental jurisdiction over the NYCHRL claims pursuant to 28 U.S.C. § 1367. Moreover, this Court has jurisdiction to issue a declaratory judgment pursuant to 28 U.S.C. §§ 2201 and 2202.
21. Venue is proper in this Court, pursuant to 28 U.S.C. § 1391(b), because Defendants are located within this District. Moreover, a substantial part of the events or omissions giving rise to the claims alleged herein occurred in this District.
PARTIES A. Plaintiffs
22. Plaintiff CIDNY is an independent living center that serves people with disabilities throughout New York City. Founded in 1978, CIDNY is a non-profit organization. The majority of CIDNY’s board members and two-thirds of CIDNY’s staff are people with disabilities. CIDNY serves approximately 22,800 people with disabilities, family members and partners of people with disabilities in New York City annually.
23. CIDNY’s mission 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. CIDNY’s expert counselors help people develop individualized roadmaps to better their lives. CIDNY helps people obtain health coverage and access to health care, transition from institutions to the community, improve access to healthy and affordable foods, obtain access to transportation, solve problems related to their transportation, housing, health care, and educational opportunities. The inability of people with disabilities to safely use
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public transportation in New York City impacts almost all of CIDNY’s programs and impairs its mission.
24. Since its inception, CIDNY has worked to provide people with disabilities a safe and accessible way to move freely around New York City. For example, as far back as 1979, CIDNY was surveying trends in requests for service to identify the need New Yorkers had in accessing New York City’s public transit services. In 1980, CIDNY lead the coalition of people requesting that MTA trains and buses be made accessible to people who use wheelchairs. In 1999, CIDNY helped negotiate a settlement of a federal lawsuit guaranteeing improvements to the Access-a-Ride program, which provided transportation for more than 40,000 people with disabilities in New York City. In 2004, CIDNY completed a survey of subway platform safety for people with visual disabilities and used the data in a media campaign to draw attention to the lack of appropriate platform edge markings. In 2005, CIDNY was a partner in the coalition that successfully advocated for the introduction of accessible taxi cabs into the fleet of yellow taxis and later contributed to the successful federal civil rights case brought to require additional accessible taxis in New York City. In 2014, CIDNY surveyed sidewalks and used the data to file suit against the City for failing to ensure curb cuts are compliant with the Americans with Disabilities Act.
25. CIDNY’s work on subway accessibility is a continuation of its longstanding commitment to make it possible for people with disabilities to travel independently and safely in New York City.
26. CIDNY’s constituents, staff, and volunteers with mobility disabilities or other disabilities affecting a person’s ability to use stairs are presently being harmed by Defendants’ failure to install elevators or vertical access throughout the subway system.
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27. CIDNY has also expended time and resources responding to complaints from constituents, staff, and volunteers with mobility disabilities or other disabilities affecting a person’s ability to use stairs who are barred, limited, and deterred from use of the subway system.
28. Defendants’ failure to ensure the accessibility of their subway system to people with mobility disabilities or other disabilities affecting a person’s ability to use stairs is thus an issue of urgent and immediate concern for CIDNY.
29. Plaintiff BCID is a consumer-based, nonprofit independent living center that provides services and advocacy toward independent living for people with disabilities throughout the City. The majority of BCID’s board members and staff are people with disabilities, including mobility-related disabilities.
30. Each year, BCID serves approximately 1,400 to 1,700 people with disabilities. Moreover, BCID also has approximately fifty support-group members and peer counselors; many have mobility disabilities that require the use of wheelchairs, walkers, scooters, or other assistive devices.
31. BCID’s mission is to ensure full integration, independence, and equal opportunity for all people with disabilities. BCID strives to accomplish this goal by removing barriers to its disabled constituents’ full and equal participation in the social, economic, cultural, and civic life of the community. Safeguarding access to the public transportation program run by Defendants is a vital component of this mission, particularly given the impracticability of owning a car in a city like New York.
32. Since its inception in the year 1956, BCID has worked to ensure that each program, service, or activity provided in the City is accessible for people with disabilities.
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Among other things, BCID has advocated to remedy the inaccessibility of the City’s police stations, sidewalks, and emergency shelters as well as the failures of the City’s paratransit system.
33. BCID’s members, constituents, staff, and volunteers with mobility disabilities are presently being harmed by Defendants’ failure to maintain its elevators at the limited number of subway stations that are accessible to people with mobility disabilities.
34. BCID has also expended time and resources responding to complaints from constituents, staff, and volunteers with mobility disabilities regarding elevator outages.
35. The continued inaccessibility of the subway system resulting from Defendants’ failure to properly maintain stations’ elevators is thus an issue of urgent and immediate concern for BCID.
36. Plaintiff BILS, founded in 1983, is an independent living center and a consumerbased, nonprofit organization, providing services and advocacy for independent living for individuals with disabilities. BILS’ mission 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. Both BILS’ board and staff are made up of a majority of people with disabilities.
37. BILS is dedicated to guaranteeing the civil rights of people with disabilities. BILS seeks to improve the quality of life of Bronx residents with disabilities through programs that empower them to gain greater control of their lives and achieve full and equal integration into society, including through access to public transportation. BILS accomplishes this goal through its services; its advocacy for systemic changes to remove physical, attitudinal, and communicational barriers to people with disabilities, and through its education and awareness
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programs. BILS has done systemic advocacy on issues involving public transportation on behalf of its constituents with mobility disabilities.
38. BILS’ constituents, staff, and volunteers with mobility disabilities are presently being harmed by Defendants’ failure to maintain its elevators at the limited number of subway stations that are accessible to people with mobility disabilities.
39. BILS has also expended time and resources responding to complaints from constituents, staff, and volunteers with mobility disabilities regarding elevator outages.
40. The continued inaccessibility of the subway system resulting from Defendants’ failure to properly maintain stations’ elevators is thus an issue of urgent and immediate concern for BILS.
41. Plaintiff HILC is a consumer-based, nonprofit independent living center founded in 1990 to serve people with disabilities in the Greater Harlem area in Manhattan. The mission of HILC is to assist communities of people with disabilities in achieving optimal independence through culturally and linguistically appropriate services by advocating, educating, empowering, and being a community change catalyst.
42. To further its mission, HILC provides an array of independent living services to people with disabilities to increase their ability to function independently within their community by providing them with information and skills.
43. HILC provides a peer-based approach to services where people with disabilities frequently assist other disabled people. The majority of HILC’s board members and staff are people with disabilities, including mobility-related disabilities.
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44. HILC’s constituents, staff, volunteers, and board members with mobility disabilities are presently being harmed by Defendants’ failure to maintain its elevators at the limited number of subway stations that are accessible to people with mobility disabilities.
45. HILC has also expended time and resources responding to complaints from constituents, staff, and volunteers with mobility disabilities regarding elevator outages.
46. The continued inaccessibility of the subway system resulting from Defendants’ failure to properly maintain stations’ elevators is thus an issue of urgent and immediate concern for HILC.
47. Plaintiff DIA, founded in 1970, is a nonprofit civil rights membership organization committed to ending discrimination against people with all disabilities. DIA has approximately 150 members who live and work in New York City. DIA consists primarily of and is directed by people with disabilities.
48. To achieve its mission, DIA works to eliminate the barriers that prevent people with disabilities from enjoying full equality in American society. DIA seeks to empower people with disabilities to become assertive and fully involved in self-advocacy. DIA promotes the ability of people with disabilities to live independently by mandating equal access to education, employment, entitlements, health care, housing, personal assistance services, public accommodations, telecommunications, and transportation. DIA uses education and awareness, legislative advocacy, and public demonstrations to achieve these goals.
49. DIA’s members with mobility disabilities are presently being harmed by Defendants’ failure to maintain its elevators at the limited number of subway stations that are accessible to people with mobility disabilities.
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50. DIA has also expended time and resources responding to complaints from members with mobility disabilities regarding elevator outages.
51. The continued inaccessibility of the subway system resulting from Defendants’ failure to properly maintain stations’ elevators is thus an issue of urgent and immediate concern for DIA.
52. Plaintiff StateWide is a grassroots membership organization of individual senior citizens and senior citizen clubs throughout New York State. Founded in 1972, StateWide’s mission is to achieve through united action the dignity, well-being, and security of all senior citizens of New York State. StateWide has seven chapters throughout the state, including a New York City chapter.
53. StateWide works to achieve its mission through trainings, educational workshops, legislative advocacy, direct consumer assistance, and monitoring programs and services for the elderly of New York State to ensure their full representation and participation.
54. The New York City chapter of StateWide works with local leaders to promote planning that ensures seniors have the opportunity to age in place. A critical component of ensuring livable communities for seniors, especially for seniors with mobility disabilities, is reliable access to elevators in the New York City subway system. Thus, StateWide members with mobility disabilities are presently being harmed by Defendants’ failure to maintain its elevators at the limited number of subway stations that are accessible to people with mobility disabilities.
55. StateWide has also expended time and resources responding to complaints from members with mobility disabilities regarding elevator outages.
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56. The continued inaccessibility of the subway system resulting from Defendants’ failure to properly maintain stations’ elevators is thus an issue of urgent and immediate concern for StateWide.
57. Plaintiff Sasha Blair-Goldensohn is a qualified person with a disability. He uses a wheelchair for mobility and regularly uses the New York City subway system for commutes to work and a wide variety of activities and events. Mr. Blair-Goldensohn has experienced and continues to experience harm due to Defendants’ failure to maintain the limited number of elevators in their subway system in functional and usable condition.
58. Plaintiff Chris Pangilinan is a qualified person with a disability. He uses a wheelchair for mobility and regularly uses the New York City subway system for commutes to work and a wide variety of activities and events. Mr. Pangilinan has experienced and continues to experience harm due to Defendants’ failure to maintain the limited number of elevators in their subway system in functional and usable condition.
59. Plaintiff Dustin Jones is a qualified person with a disability. He serves on the Boards of Plaintiffs CIDNY and DIA. He uses a wheelchair for mobility and regularly uses the New York City subway system for commutes to work and a wide variety of activities and events. Mr. Jones has experienced and continues to experience harm due to Defendants’ failure to maintain the limited number of elevators in their subway system in functional and usable condition. B. Defendants
60. Defendant MTA is a public benefit corporation chartered by the New York State Legislature in 1965 under the Metropolitan Transportation Authority Act, N.Y. Pub. Auth. Law § 1260 et seq. Accordingly, MTA qualifies as a “public entity” within the meaning of Title II of the ADA, as that term is defined under 42 U.S.C. § 12131(l) and 28 C.F.R. § 35.104. MTA also
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qualifies as a “government body or agency with the meaning of the NYCHRL. N.Y.C. Admin. Code § 8-102 (1).
61. Defendant MTA is a recipient of federal financial assistance to operate its transportation program and services within the meaning of Section 504 of the Rehabilitation Act.
62. MTA is the largest transportation network in North America, serving a population of 15.3 million people in the 5,000 square mile area covering New York City, Long Island, southeastern New York State, and Connecticut. As of February 24, 2016, the MTA had an operating budget of $15.1 billion.
63. Defendant Veronique Hakim, sued in her official capacity, is the Interim Executive Director of the MTA.
64. Defendant NYC Transit is a public benefit corporation that operates as MTA’s subsidiary pursuant to N.Y. Pub. Auth. Law § 1200 et seq. Accordingly, NYC Transit qualifies as a “public entity” within the meaning of Title II of the ADA, as that term is defined under 42 U.S.C. § 12131(l) and 28 C.F.R. § 35.104. NYC Transit also qualifies as a “government body or agency with the meaning of the NYCHRL. N.Y.C. Admin. Code § 8-102 (1).
65. NYC Transit administers twenty-five subway service lines with 472 service line stations within Manhattan, the Bronx, Brooklyn, and Queens, as well as the Staten Island Railway and the New York City buses. As of February 24, 2016, NYC Transit had an operating budget of $10.9 billion.
66. Defendant Darryl C. Irick, sued in his official capacity, is the Acting President of NYC Transit.
67. Defendant NYC Transit is a recipient of federal financial assistance to operate its transportation program and services within the meaning of Section 504 of the Rehabilitation Act.
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68. Defendant City of New York, as defined by the laws of the City of New York, is a government entity. As such, Defendant qualifies as a “public entity” within the meaning of Title II of the ADA, as that term is defined under 42 U.S.C. § 12131(1) and 28 C.F.R. § 35.104.
69. Defendant City of New York is a recipient of federal financial assistance to operate its transportation program and services within the meaning of Section 504 of the Rehabilitation Act.
70. Defendant City of New York owns the New York City subway system. FACTUAL ALLEGATIONS
71. Defendants own and operate the largest and most traveled subway system in the United States. New York City’s subway system covers an 846-mile long network of tracks throughout all five New York City boroughs and operates twenty-four hours a day, 365 days a year.
72. On any given day, the subway system’s ridership totals nearly 6 million; in any given year, the ridership exceeds 1.7 billion.
73. Despite its status as the largest and most traveled subway system in the country, it lags far behind every other major urban rail system in accessibility for people with mobility disabilities such as wheelchair users.
74. Almost 80% of the 472 subway service line stations in New York City do not provide elevator access for riders with mobility disabilities.
75. In contrast, Boston, another old, densely populated, city on the East Coast, has now achieved station accessibility to the point that only 26% of stations are inaccessible. Moreover, Chicago has planned for and committed to making all of its stations accessible within the next twenty years.
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76. Nonetheless, the exclusion of people with disabilities caused by the low number of accessible subway stations in New York City is made worse by Defendants’ failure to maintain the few elevators it does operate in functional condition. Defendants’ own data shows that 4,117 unplanned elevator outages occurred between July 1, 2014 and June 30, 2015 alone. On average, more than 12% of elevators were out of service on any given day in this time period.
77. Defendants’ data show that elevator outages at its subway stations are lengthy as well as frequent. In a system with only 112 accessible service line stations, there are approximately 25 elevator outages per day.
78. Defendants’ data shows that on 58 occasions between July 1, 2014 and June 30, 2015, outages due to repairs to subway elevators lasted at least 72 hours. On 21 occasions, outages due to repairs lasted at least 120 hours. The station with the lengthiest outages for the year, 161st Street-Yankee Stadium Station, which serves two subway service line stations, experienced a total of 321 outages spanning a total of 2,664 hours during that year.
79. Elevator outages were particularly frequent in the stations that have the highest levels of ridership and often provide critical juncture points for the system. For example, seven of the top ten stations with the highest level of ridership had the following numbers of elevator outages in the one-year period ending on June 30, 2015:
A. Times Square – 42nd Street Station had a total of 196 outages, lasting 1,183 hours and 22 minutes.
B. Grand Central – 42nd Street Station had a total of 275 outages, lasting 1,157 hours and 12 minutes.
C. 34th Street – Herald Square Station had a total of 241 outages, lasting 1,231 hours and 31 minutes.
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D. 14th Street – Union Square Station had a total of 108 outages, lasting 605 hours and 26 minutes.
E. 34th Street – Penn Station on the 8th Avenue Line had a total of 161 outages, lasting 864 hours and 25 minutes.
F. 59th Street Station – Columbus Circle had a total of 264 outages, lasting 1,632 hours.
G. Fulton Street Station had a total of 347 outages lasting 1,683 hours and 38 minutes.
80. Further, some outage statistics expressed herein are drawn from publicly reported data and are likely underreported. For instance, requested outage information provided by MTA for a one year period failed to include any reported outages at 16 stations with elevators, which is unlikely.
81. The hardships riders with mobility disabilities face due to these frequent, unplanned, and lengthy outages are created and exacerbated by Defendants’ failure to maintain and implement system-wide policies to (1) inform the public of elevator outages in a timely manner, (2) provide well-publicized information to riders with disabilities regarding alternate, accessible routes, (3) ensure that staff are adequately trained and available to assist riders with mobility disabilities during outages, and (4) provide appropriate emergency procedures when riders with disabilities are stranded during outages.
82. Riders who use wheelchairs, scooters, or walkers and who rely on elevator access, such as Mr. Blair-Goldensohn, Mr. Pangilinan, Mr. Jones, and the members and constituents of the organizational Plaintiffs, routinely encounter elevator outages without any notice at all. As a result, in some cases, they are trapped on platforms and cannot safely exit stations. In some
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cases, riders who use wheelchairs have had to rely on strangers to physically lift them up or down stairs in order to exit the station.
83. MTA staff have either been unavailable, unwilling to assist, or not properly trained in assisting riders who use wheelchairs during outages.
84. Riders who use wheelchairs, scooters, or walkers often receive no information from the MTA and NYC Transit about alternate accessible routes to use during elevator breakdowns. MTA and NYC Transit do not provide such riders alternate transportation options during elevator outages, such as transport to the nearest accessible station with a functioning elevator.
85. Even when subway elevators are in working order, Defendants’ failure to maintain and implement proper inspection and cleaning procedures at subway elevators has limited their usability for riders with mobility disabilities. Named Plaintiffs and members and constituents of the organizational Plaintiffs consistently encounter subway elevators that are strewn with trash or human waste. These riders are faced with the disturbing choice of having to roll into waste or miss appointments or other obligations due to the delays caused by having to go to another station with an elevator in the hope that the elevator at that station may be cleaner.
86. Other large, urban transit providers, such as the Massachusetts Bay Transit Authority (“MBTA”), which covers the Boston area, have successfully implemented elevator inspection, maintenance, and contingency procedures to reduce the numbers of elevator outages; provide notice of outages and announcements and signage indicating alternate accessible routes during outages; provide alternate forms of transportation to people with disabilities during elevator outages; and have implemented training for staff on assisting people with disabilities
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during outages as well as improved procedures to ensure routine inspection and cleaning of elevators.
87. Defendants have had and continue to have ample resources to maintain and implement such procedures, yet have failed to do so. In the time period since Defendants’ first capital program in 1982, they have spent $100 billion on improvements to the subway system and have a current revised capital budget of $29 billion.
88. The combination of (1) having 360 New York subway service line stations that exclude people with disabilities because they have no elevator and (2) Defendants’ failure to maintain those few elevators that do exist, as well as (3) Defendants’ failure to alert riders to outages or provide alternate transportation, makes the subway system, as a practical matter, unusable as transportation for people with mobility disabilities.
89. The harm to people with disabilities caused by Defendants’ failure to maintain the limited number of elevators in the subway system is worsened by the fact that none of the City’s alternate modes of transportation, including buses and paratransit services, offer meaningful, reliable substitutes for riders with mobility disabilities.
90. The City’s bus system is significantly slower than the subway, runs less frequently, and is more geographically limited. Bus service is also subject to delays involving traffic and weather, including hazardous street conditions caused by snow and rain impeding traffic and accessible routes to bus stops.
91. The City’s paratransit service for people with disabilities, Access-A-Ride, is unreliable, subject to long delays and missed pickups. It also requires up to twenty-four hours advance notice, and fails to provide riders with disabilities the freedom of rapid, convenient subway travel that is such a vital part of living in, working in, and visiting New York City.
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92. Defendants’ exclusionary policies create social isolation and barriers to employment, education, civic, social, and cultural life for hundreds of thousands of New Yorkers and visitors to the City with disabilities.
93. Defendants’ exclusionary policies do not merely harm people with disabilities; they hurt everyone and create grave harm to the seniors, tourists, parents, working people, and others who benefit from safe, functioning, and clean elevators in the subway system.
EXPERIENCES OF THE NAMED PLAINTIFFS A. Mr. Blair-Goldensohn
94. Plaintiff Sasha Blair-Goldensohn is a wheelchair user who attempts to rely on the subway to commute to and from work, travel to other transit centers, attend sporting events, and accomplish a number of daily tasks.
95. Mr. Blair-Goldensohn generally prefers the subway to all other modes of transportation. However, repeated out-of-service elevators have forced him to reroute his travel plans, delay his arrival times, or give up on traveling altogether on a number of occasions. He has experienced outages lasting for months at a time, including at stations located at South Ferry & Cortlandt Street. He is likewise accustomed to encountering urine, feces, and trash when using subway elevators.
96. On repeated occasions, Mr. Blair-Goldensohn has been stranded without elevator access during outages and has had to ask strangers to carry him and his wheelchair up or down stairs so that he could exit subway stations. On each such occasion, MTA staff was either unable or unwilling to assist Mr. Blair-Goldensohn to exit the station safely.
97. Mr. Blair-Goldensohn has particularly struggled with broken down elevators when commuting to and from work. His commute route involves traveling from his home on the Upper West Side to his employer’s office in Chelsea. Because the closest accessible station to
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Mr. Blair-Goldensohn’s home is the 72nd Street Station on the 2/3 line, Mr. Blair-Goldensohn ordinarily takes the 2/3 line to the 59th Street-Columbus Circle station, then transfers to the A/C line to travel to the 14th Street-8th Avenue station. He must use four elevators in total in the course of his commute.
98. Whenever the 72nd Street station elevator is out of service, Mr. Blair-Goldensohn must detour to the nearest accessible station at 66th Street-Lincoln Center, lengthening his commute by half a mile.
99. Upon arriving at the 14th Street-8th Avenue station, if either the mezzanine-level or the street level elevator is out of service, Mr. Blair-Goldensohn must travel to the West 4th Street Station and take a cab or travel by chair to his office. This detour costs him extra money and extends his subway commute by 0.6 miles.
100. Mr. Blair-Goldensohn’s commute back is often even more arduous because the elevator on the front end of the platform at the 59th Street-Columbus Circle station is regularly out of service and unusable. Mr. Blair-Goldensohn is frequently forced to travel all the way to the other end of the station, take an elevator to the mezzanine, ride another elevator to the street, travel across an intersection, and take an elevator from the street to the mezzanine of the Uptown 1 train. This alternative route lacks signage, further extending the overall detour. Moreover, he often has to purchase an additional fare to re-enter the gated area unless he is able to convince the station agent to let him enter.
101. Mr. Blair-Goldensohn’s commute back is also frequently complicated by elevator outages at the 72nd Street Station. If the elevator there is out of service, Mr. Blair-Goldensohn is forced to exit at the 96th Street Station and travel an additional ten blocks in order to arrive back home.
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B. Mr. Pangilinan 102. Mr. Pangilinan is a wheelchair user who attempts to rely on the subway system
for a variety of purposes, including attending social and cultural events, visiting friends, and participating in work-related activities. Mr. Pangilinan most frequently uses the subway to commute between his home in Downtown Brooklyn and his lower Manhattan office.
103. When Mr. Pangilinan moved to the City, he searched for an apartment within walking distance of at least two wheelchair-accessible stations to ensure that he could access the subway if an elevator at one station was out of service.
104. However, Mr. Pangilinan has consistently faced elevator outages, making his commute, trips to social engagements, and what would otherwise be routine aspects of life in New York City exceedingly difficult. From November 24, 2014 to March 15, 2017, Mr. Pangilinan recorded over 200 elevator outages that forced him to either alter or cancel trips.
105. When commuting to his office, Mr. Pangilinan typically travels on the 4/5 line from Borough Hall to Bowling Green. Because the elevator at Borough Hall is broken about once a week, while the one at Bowling Green is out of service around once every two weeks, he frequently experiences obstacles that render the subway inaccessible to him.
106. Moreover, because of the inaccessibility of the southbound 4/5 line at the Borough Hall station, he must take a detour each time he commutes back home. In particular, he must take the 4/5 line from Bowling Green to Fulton Street, then transfer to the A/C line at Fulton Street and travel to Jay Street-MetroTech to arrive back home. Even this alternative route is frequently rendered inaccessible by elevator outages at Fulton Street.
107. Mr. Pangilinan has likewise struggled to use the 4/5/6 line at the 125th Street Station. He visits the area regularly in order to work on a project at City College, but has frequently found the travel difficult due to frequent and unannounced elevator outages. Despite
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the fact that the elevators at the 125th Street 4/5/6 station were recently out of service for several months for repairs, elevator outages at that station persist, prolonging the inaccessibility of that station.
108. Other stations with frequent elevator outages that Mr. Pangilinan has struggled with include the 34th Street-Herald Square Station, the 42nd Street-Grand Central Station, and the 34th Street-Penn Station. Outages like these significantly aggravate Mr. Pangilinan’s general struggles with gaps in accessible subway service. C. Mr. Jones
109. Mr. Jones has regularly attempted to rely on the subway system, especially the Union Square station, to attend CIDNY board meetings, medical appointments at Beth Israel, and various social activities. He has consistently found stations’ elevators to be in exceedingly poor condition and has had to struggle to move around the City as a result.
110. As just one example, on January 25, 2017, Mr. Jones encountered two broken elevators while traveling from his home in the Bronx to CIDNY’s offices near Union Square for a meeting. Because Union Square Station is inaccessible for the 4/5/6 lines, Mr. Jones was unable to take the 5 train directly from his home to the meeting. Instead, he had to take the 2 train to Times Square-42nd Street, then transfer to a train on the N/Q/R/W line to go downtown.
111. When Mr. Jones reached Union Square station, he discovered that the elevator from the platform to the mezzanine was broken and not usable. In an attempt to get assistance, he located a subway worker to ask when the elevator would be back in service, only to be told that he should go to the next station and then turn around. When he informed the worker that the next station on the line was not wheelchair-accessible and was therefore impossible for him to use, the worker responded with “what do you want me to do?” and turned his back, offering no assistance and leaving Mr. Jones feeling humiliated.
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112. Mr. Jones’ only alternative in this situation was to take the downtown Q train to the next accessible station – which was not until Brooklyn – and then turn around and go back to 42nd Street, from where he could return to 14th Street by bus. Because this alternative was extremely time-consuming, Mr. Jones could not utilize it without missing his meeting. He was consequently forced to flag down a bystander to carry his wheelchair to the upstairs mezzanine elevator leading out into the street while he hopped up the stairs on his foot, feeling embarrassed.
113. Further heightening his humiliation, he struggled to find a bystander who would help him until he finally stopped directly in front of someone and said: “Excuse me, sir, I’m not asking for money. I need your help.” Once he was at the top, other passengers again had to help him so that he could get back into his wheelchair.
114. Mr. Jones’ struggles did not end there. Instead, he discovered upon reaching the elevator that it had broken down. He reported the problem to the ticket agent and noted that it was the second broken elevator he had encountered in three minutes. In response, the agent exasperatedly asked what he expected her to “do about it.” Mr. Jones found that her indifference and lack of interest in offering any kind of assistance further aggravated the sense of frustration and despair he was already feeling about the entire situation.
115. To avoid being stranded in the mezzanine, Mr. Jones again had to ask strangers to carry his wheelchair up the stairs while he hopped on one foot. All the while, not one of the nearby station employees showed any interest in the situation.
116. This unpleasant experience mirrored an earlier incident that also took place at the 14th Street-Union Square station on or around January 4, 2017. That day, Mr. Jones was traveling uptown to meet a friend at 14th Street and Second Avenue. Once he realized the
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mezzanine-to-street elevator was not working, he had to ask a bystander to help him get upstairs by carrying his wheelchair as he hopped on one foot.
117. Mr. Jones has struggled at other subway stations as well. For instance, between September 2016 and January 2017, Mr. Jones experienced four elevator outages at the 125th Street on the A/B/C/D line as he was traveling to Harlem to visit friends.
118. One of these instances took place on January 21, 2017 when he went to the station to meet a friend with whom he planned to attend the Women’s March. He took the 4/5/6 line to arrive at the 125th Street station, then crossed town and met his friend above ground to jointly head to the Women’s March using the A/B/C/D line.
119. However, when he pressed the button to call the elevator, he discovered that it was not working properly. He waited for twenty minutes until it arrived, and maintenance took it out of service once it transported his friend and him down to the mezzanine. The maintenance team noted that this was the second time the 125th Street A/B/C/D elevator had broken down that week.
120. Some additional elevator outage-related incidents include an October 2016 incident, during which Mr. Jones got trapped at the Grand Central station and required police assistance to get out onto the street, and a November 2016 incident, during which Mr. Jones could not get out of the Wall Street 4/5 station and had to instead travel back to Fulton Street, then walk several blocks back to attend his meeting at City Hall.
121. Mr. Jones also is worried that, in case of an emergency, he might get trapped in a subway station. He regularly avoids a number of stations because he is accustomed to their elevators being out and cannot rely on MTA to accurately post timely warnings. Since few
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stations have elevators to begin with, this poses significant additional burdens on Mr. Jones’ ability to rely on the subway system to get around the City in which he lives.
CLASS ACTION ALLEGATIONS 122. Pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure, Plaintiffs bring this action for injunctive and declaratory relief, on their own behalf and on behalf of all people similarly situated. 123. The class that Plaintiffs seek to represent consists of all people with mobility disabilities who use, or seek to use, the City’s subway system. The claims asserted herein are solely for injunctive and declaratory relief for the class; damage claims are not included in this Complaint. 124. The people in the class are so numerous that joinder of all such people is impracticable. The disposition of their claims in a class action is a benefit to the parties and to the Court. Indeed, data from the United States Census American Community Survey conducted in 2014 indicates that more than 500,000 non-institutionalized New York City residents have a mobility-related disability. Hundreds of thousands of people with disabilities, moreover, visit the City each year. 125. Proposed class members share a well-defined community of interest with respect to both questions of law and fact involved because they are all being denied, or will be denied, access to the City’s subway system due to frequent and continuous elevator outages. 126. A common question of law and fact involves Plaintiffs’ allegations that Defendants have violated Title II of the ADA and Section 504 of the Rehabilitation Act by failing to provide equal access to the City’s subway system for people with mobility disabilities through their failure to maintain the elevators in operative and sanitary condition, provide adequate notice of elevator outages, and provide alternate accommodations during outages.
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Common questions also include whether the disability-related provisions of the New York City Human Rights Law require elevator maintenance at subway stations, as well as what remedial scheme should be implemented to rectify the regular barriers to access. Such common questions clearly predominate over any questions affecting individual class members.
127. Plaintiffs are adequate class representatives because they, or the people they serve, are directly impacted by Defendants’ failure to provide equal access to the City’s subway system through proper elevator maintenance. Moreover, Plaintiffs’ claims are typical of the claims of the class as a whole because Plaintiffs and other class members are similarly affected by the Defendants’ failure to provide equal access to the City’s subway system for people with mobility disabilities through their failure to maintain the elevators in operative and sanitary condition, provide adequate notice of elevator outages, and provide alternate accommodations during outages.
128. Plaintiffs’ interests are not antagonistic, or in conflict with, the interests of the class as a whole. The attorneys representing the class are highly trained, duly qualified, and very experienced in representing plaintiffs in civil rights class actions for injunctive relief.
129. By failing to ensure the accessibility of the subway system for people with mobility disabilities through proper maintenance and policies related to the stations’ elevators, consistent with federal disability access laws, Defendants have acted and/or failed to act on grounds generally applicable to the class as a whole. Accordingly, an award of appropriate final declaratory and injunctive relief with respect to the class as a whole is warranted in this case.
130. References to Plaintiffs shall include each Plaintiff and each member of the class, unless otherwise indicated.
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FIRST CAUSE OF ACTION Violation of Title II of the Americans with Disabilities Act
42 U.S.C. § 12131, et seq. 131. Plaintiffs re-allege and incorporate herein all previously alleged paragraphs in this Complaint. 132. Title II of the ADA seeks to eradicate disability-based discrimination perpetrated by public entities. In pertinent part, it 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. 133. Public entities must provide their programs, services, and activities in such a way that each program, service, or activity, “when viewed in its entirety, is readily accessible to and useable by individuals with disabilities.” 28 C.F.R. § 35.150; see also 28 C.F.R. §§ 35.149, 35.151. This obligation is commonly referred to as the program access requirement. 134. The obligation to provide program access expressly includes public transportation programs, services, and activities. Under 42 U.S.C. § 12148, it is unlawful “for a public entity to fail to operate a designated public transportation program or activity” conducted in existing facilities so that, “when viewed in its entirety, the program or activity is readily accessible to and usable by individuals with disabilities.” 42 U.S.C. § 12148; see also 49 C.F.R. § 37.61. 135. Regulations promulgated pursuant to this provision clarify that the “readily accessible” standard encompasses maintaining accessible features at each existing facility in operable condition so that they can be readily used by people with disabilities. This obligation entails promptly repairing accessibility features that are damaged and out of order, as well as taking reasonable steps to accommodate individuals with disabilities who would otherwise use
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that feature, while such repairs are being made. See 49 C.F.R. §§ 37.161(a)-(b) (providing that “[p]ublic and private entities providing transportation services shall maintain in operative condition those features of facilities . . . that are required to make the . . . facilities readily accessible to and usable by individuals with disabilities” and that “these features include, but are not limited to elevators, signage, and systems to facilitate communication”). Id.
136. At all times relevant to this action, Defendants have provided public transportation services, programs, and activities, including owning and/or operating a fixed route system of designated public transportation covered under 42 U.S.C. § 12148 and 49 C.F.R. § 37.61. Accordingly, Defendants qualify as public entities within the meaning of Title II, see 42 U.S.C. § 12141(3), and are subject to each of the mandates articulated under 42 U.S.C. § 12132, 42 U.S.C. § 12148, and 49 C.F.R. § 37.61.
137. Further, each of the organizational Plaintiffs has constituents and staff who are qualified individuals with disabilities within the meaning of Title II of the ADA. See 42 U.S.C. § 12131(2).
138. Likewise, each of the individual Plaintiffs is a "qualified individual with a disability" under the meaning of Title II of the ADA. See 42 U.S.C. § 12131(2).
139. Defendants have breached their duties towards the Plaintiffs as articulated under each and every one of the provisions cited above. In particular, Defendants have failed to ensure that the services they provide at New York City subway stations are readily accessible and usable by people with mobility disabilities by failing to maintain the elevators in the New York City subway system in functional and useable condition and by failing to provide adequate notice or alternate accommodations for people with mobility disabilities when outages occur.
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140. Defendants have also failed to maintain in operative condition those features of facilities, including elevators, that are required to make New York City subway stations readily accessible to and usable by individuals with disabilities in violation of 49 C.F.R. § 37.161.
141. Defendants have further failed to address Plaintiffs’ request to “make reasonable modifications in policies, practices, or procedures, when the modifications are necessary to avoid discrimination on the basis of disability, or provide program access to their services,” as mandated by 49 C.F.R. § 37.5(i)(3) and 49 C.F.R. § 37.169. See 49 C.F.R. § 37.5(i)(3); 49 C.F.R. § 37.169. This failure has involved refusal to make reasonable modifications to Defendants’ policies and practices regarding the maintenance of elevators and the provision of adequate alternate accommodations during elevator outages as necessary to avoid discrimination on the basis of disability or provide program access to their transportation services.
142. As a direct and proximate result of Defendants’ aforementioned acts and omissions, Plaintiffs have suffered, and continue to suffer, injuries for which they have no adequate remedy at law. This ongoing discriminatory conduct warrants both declaratory and injunctive relief, as well as reasonable attorneys’ fees, expert expenses, and costs incurred in bringing this action. See 42 U.S.C. § 12133.
143. WHEREFORE, Plaintiffs request relief as set forth below. SECOND CAUSE OF ACTION
Violation of Section 504 of the Rehabilitation Act 29 U.S.C. § 794
144. Plaintiffs re-allege and incorporate herein all previously alleged paragraphs in this Complaint.
145. Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, provides that “no otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability,
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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.
146. Implementing regulations further reinforce this mandate by requiring public entities to institute policies and practices regarding the maintenance of crucial accessible features. See 49 C.F.R. §§ 27.7(b)(4)(i). 49 C.F.R. §§ 27.7(b)(4)(i)
147. As recipients of federal funds that are used to operate its programs and services, Defendants are obliged to comply with this mandate. Further, each organizational and individual Plaintiff has a disability that entitles them to the protections of 29 U.S.C. § 794 and its implementing regulations.
148. However, Defendants have continuously violated these protections by failing to ensure that the subway stations are readily accessible to people with disabilities. Those violations have included continuous and systemic failures to ensure that stations’ elevators are maintained in operative, sanitary, and usable condition or provide adequate notice or alternate accommodations during outages.
149. Because of those omissions, people with mobility disabilities have been, and continue to be, deprived of “an opportunity to participate in or benefit from” Defendants’ services on an equal basis with “people who are not disabled,” in violation of 49 C.F.R. § 27.7(b)(1)(ii). Indeed, given that the benefits or services available as the result of these omissions are “not as effective in affording equal opportunity to obtain the same result or to gain the same benefit” as the benefits and services available to people who are not disabled, Defendants’ conduct amounts to a provision of “different or separate aids, benefits, or services” to the class of people with mobility disabilities. See 49 C.F.R. §§ 27.7(b)(1)(iii)-(iv), (vii). Accordingly, Defendants’ conduct clearly limits disabled people’s enjoyment of the “rights,
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privileges, advantages, and opportunities enjoyed by others” who use New York City’s subway system. Id.
150. The resulting unequal access to the programs, services, and activities provided by Defendants constitutes disability-based discrimination in violation of 29 U.S.C. § 794, and 49 C.F.R. §§ 27.7(b)(4)(i).
151. Defendants’ conduct additionally violates implementing regulations that require recipients of federal funding to “make reasonable accommodations in policies, practices, or procedures when such accommodations are necessary to avoid discrimination on the basis of disability.” 49 C.F.R. § 27.7(e).
152. Defendants have violated this requirement in several ways, including by failing to modify their policies and practices regarding elevator maintenance. Their lack of compliance amounts to a violation of 49 C.F.R. § 27.7(e).
153. Finally, Defendants’ violations of 42 U.S.C. §§ 12146, 12147(b)(1), and § 12148, as described above, also constitute violations of 29 U.S.C. § 794.
154. As a direct and proximate result of each of these acts and omissions, Plaintiffs have suffered, and continue to suffer, injuries for which they have no adequate remedy at law. Defendants’ ongoing discriminatory conduct warrants both declaratory and injunctive relief, as well as reasonable attorneys’ fees and costs incurred in bringing this action. See 29 U.S.C. § 794(a).
WHEREFORE, Plaintiffs request relief as set forth below.
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THIRD CAUSE OF ACTION Violation of the New York City Human Rights Law
(N.Y.C. Admin. Code § 8-101 et seq.) 155. Plaintiffs re-allege and incorporate herein all previously alleged paragraphs in this Complaint. 156. The New York City Human Rights Law 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 . . . .” N.Y.C. Admin. Code § 8-107(4)(a). Persons include all “natural persons, proprietorship, partnerships, associations, group associations, organizations, governmental bodies or agencies, corporations [and] legal representatives . . .” N.Y.C. Admin. Code § 8-102(1). 157. Further, the term “place or provider of public accommodation” encompasses “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). 158. Public transportation services clearly constitute a service, accommodation, advantage, or privilege that is offered to the general public within the meaning of N.Y.C. Admin. Code § 8-102(9). Defendants MTA and New York City Transit act as “managers” of this system in their role as a public benefits corporation created by the City. Further, the City is the owner of
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the subway system. Accordingly, Defendants are plainly “persons” within N.Y.C. Admin. Code § 8-102(1).
159. Because frequent and continuous elevator outages, poor maintenance and inspection of elevators, and lack of notice or alternative accommodations during outages render the subway system inaccessible to people with mobility disabilities, Defendants, in their role as the system’s managers, violate § 8-107(4)(a) by denying to people with mobility disabilities access to a service, accommodation, privilege, or advantage that is otherwise available to the general public.
160. In addition, Defendants violate N.Y.C. Admin. Code § 8-107(15). This provision mandates that covered entities must “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). Because this provision applies to all entities that must comply with N.Y.C. Admin Code § 8-107, Defendants are bound by it.
161. The functionality of elevators at each and every station is vital to enable people with mobility disabilities to access the system on equal terms with the general public. Moreover, Defendants are aware, or should be aware, that people with mobility disabilities constitute a portion of the population wishing to use the City’s subway system. Defendants’ failure to ensure elevators’ functionality is thus a violation of the § 8-107(15) reasonable accommodation mandate.
162. Defendants’ conduct also violates N.Y.C. Admin. Code § 8-107 (17), which states that “an unlawful discriminatory practice . . . is established . . . [when plaintiff] demonstrates that a policy or practice of a covered entity or a group of policies or practices of a covered entity
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results in a disparate impact to the detriment of any group protected by the provisions of this chapter.”
163. Defendants’ violation of this section is evident from their systemic failure to ensure elevators’ functionality and thereby meaningful access to the subway program in its entirety for people with mobility disabilities. By failing to operate this program so that it is readily accessible and usable by people with mobility disabilities when viewed in its entirety, Defendants have demonstrated a policy or practice that has a disproportionately negative impact on people with mobility disabilities, a group that is protected under the provisions of the NYCHRL.
164. These violations are particularly grave in light of the “uniquely remedial” purpose behind the NYCHRL. The construction provision of this law expressly provides that each section must 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 this title, have been so construed.” N.Y.C. Admin. Code § 8-130. Accordingly, Defendants’ conduct is subject to a much stricter standard than under state or federal law, and its liability under these provisions must be determined separately and independently from its liability under the disability provisions of either state or federal civil rights law.
165. As a direct and proximate result of Defendants’ violations of the NYCHRL, Plaintiffs have been injured as set forth herein.
166. Defendants’ conduct constitutes an ongoing and continuous violation of the NYCHRL. Unless Defendants are enjoined from further violations, Plaintiffs will continue to suffer injuries for which there is no adequate remedy at law. In particular, Plaintiffs will suffer
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irreparable harm in that they will continue to be discriminated against and denied the accommodations, advantages, facilities, or privileges of the subway program as a whole, as well as reasonable accommodations that would provide them the opportunity to benefit from it. Plaintiffs are accordingly 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
167. Plaintiffs re-allege and incorporate herein all previously alleged paragraphs in this Complaint.
168. Plaintiffs contend that Defendants have failed and are failing to comply with applicable laws prohibiting discrimination against people with mobility 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; and the NYCHRL, N.Y.C. Admin. Code § 8-101 et seq.
169. Defendants disagree with Plaintiffs’ contention. 170. 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, Plaintiffs pray for relief as set forth below.
PRAYER FOR RELIEF Wherefore, Plaintiffs, on their own behalf and on behalf of the class, pray for the following relief against Defendants: 171. That this matter be certified as a class action with the class defined as set forth above, that Plaintiffs be appointed class representatives, and their attorneys be appointed class counsel;
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172. For an order and judgment enjoining Defendants from violating the Title II of the ADA, 42 U.S.C. § 12131 et seq.; Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, and the NYCHRL, N.Y.C. Admin. Code § 8-101 et seq.;
173. For an order and judgment declaring that Defendants’ acts and omissions as challenged herein are unlawful;
174. For an order requiring Defendants to institute system-wide policies and practices necessary to ensure the subway system elevators regularly operate in a useable and sanitary condition, and provide adequate notice and alternative accommodations when outages occur, all as necessary to ensure that the subway system as a whole is readily accessible to people with mobility disabilities;
175. For an award of Plaintiffs’ reasonable attorneys’ fees and costs; and 176. For such other relief that the Court may deem just and proper.

Dated: April 25, 2017 New York, New York

Respectfully submitted,
_____________________________________
Michelle Caiola (MC2110) Rebecca Rodgers (RR1349) DISABILITY RIGHTS ADVOCATES 675 Third Avenue, Suite 2216 New York, NY 10017 Tel: (212) 644-8644 Fax: (212) 644-8636 mcaiola@dralegal.org rrodgers@dralegal.org
Jelena Kolic (JK1985) DISABILITY RIGHTS ADVOCATES 10 South LaSalle Street, 18th Floor Chicago, IL 60613 Tel: (312) 559-4660
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Fax: (212) 644-8636 jkolic@dralegal.org Sidney Wolinsky (CA Bar No. 33716) * Stuart Seaborn (CA Bar No. 198590) * DISABILITY RIGHTS ADVOCATES 2001 Center Street, 4th Floor Berkeley, CA 94704 Tel: (510) 665-8644 Fax: (510) 665-8511 Daniel Brown SHEPPARD MULLIN RICHTER & HAMPTON LLP 30 Rockefeller Plaza New York, NY 10112 Tel: (212) 653-8700 Fax: (212) 653-8701 Attorneys for Plaintiffs * motions for pro hac vice admission to be filed
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 Case 1:17-cv-02990-KBF Document 53 Filed 09/06/17 Page 1 of 2

UNITED STATES DlSTRICT COURT SOUTHERN DISTRICT OF NEW YORK
---------------------·------------------------------X
CENTER FOR INDEPENDENCE OF THE, DISABLED, NEW YORK, et al.,

17 CV 2990 (KBF)(DCF)

Plaintiffs,

-against-

METROPOLITAN TRANSPORTATION AUTHORITY, eta!.,
Defendants.
----···---------------------------------------------X

STIPULATION OF DISMISSAL WITHOUT PRE.JUDICE

WHEREAS, this action was commenced on or about April 25, 20 17;

WHEREAS, Defendant City ofNew York ("City") denies any and all liability arising out of the

allegations set forth in the Complaint;

WHEREAS, the City bases its position on the following: "AGREEMENT OF LEASE

BETWEEN THE CITY OF NEW YORK AND NEW YORK CITY TRANSIT AUTHORITY Dated,

June 1, 1953; Amended April19, 1960 and March 6, 1962; Supplemented by Agreement dated March

20, 1962; Amended and Renewed by Agreement dated October 5, 1962; Amended April 7, 1965;

Amended by Agreement dated March 31, 1982" ("Lease") the New York City Transit Authority ("TA")

(1) maintains full "jurisdiction, control, possession and supervision of [New York City] transit facilities,

materials, supplies and properly ...", see Lease § 2.1; (2) theTA has full "title and ownership to the

materials and supplies incidental to or necessary for the operation of the transit facilities which were []

leased to the [TA] ...", id.; and (3) the City's sole right ofreentry to the leased transit facilities for repair

is limited to repair of "sewers, water mains, sludge lines, tanks, power lines, telephone lines and other

service facilities of the City used for other than transit purposes ... ", id. § 7.6 (emphasis in original);

Case 1:17-cv-02990-KBF Document 53 Filed 09/06/17 Page 2 of 2

WHEREAS execution of this Stipulation by the other patties hereto shall not be construed as agreement with the position of the City of New York expressed above, and all parties reserve all rights

with respect thereto; WHEREAS, the Parties seek to avoid incutTing the cost of litigation and burdening the Court

with litigation as against the City at this time;
WHEREAS, if during discovery Plaintiffs or co-defendants detennine that the assistnnee of the City is needed to obtain relevant discovery not obtainable from the co-defendants, the party seeking that discovery will present that request to the City whereupon the City will in good faith consider that

request and provide a response within thirty (30) days; and WHEREAS, the City agrees to toll any applicable statute of limitations pending Plaintiffs'

refiling the Complaint, if at all, as against the City; NOW, THEREFORE, with the agreement of all Parties, this action is dismissed without

prejudice as against the City of New York.

August 31, 2017
Michelle Anne Caiola Disability Rights Advocates 675 Third Avenue, Suite 2216 New York, NY 10017 (212) 644-8644

~~A-~-- Ira J. i~(j_i

Hoguct cwmnn Regal & Kenney, LLP

I0 East 40111 Street

·

'(L;J New York, NY 10016
(212) 689-,

SO ORDERED:
(cfS. ?tv -
Hon. Katherine B. Forrest

Assistant Cor rntionVC':,c•
100 Church Street New York, NY 10007 (212) 356-0894

 
 Case 1:17-cv-02990-KBF Document 63 Filed 11/03/17 Page 1 of 4

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
CENTER FOR INDEPENDENCE OF THE DISABLED, NEW YORK, a nonprofit organization, BROOKLYN CENTER FOR .INDEPENDENCE OF THE DISABLED, a nonprofit organization, BRONX INDEPENDENT LIVING SERVICES, a nonprofit organization, HARLEM INDEPENDENT LIVING CENTER, a nonprofit organization, DISABLED IN ACTION OF METROPOLITAN NEW YORK, a nonprofit organization, NEW YORK STATEWIDE SENIOR ACTION COUNCIL, a nonprofit organization, SASHA BLAIR-GOLDENSOHN, an individual, CHRIS PANGILINAN, an individual, and DUSTIN JONES, an individual, on behalf of themselves and all others similarly situated,
Plaintiffs,
-against-

17 Civ. 2990 (KBF)
STIPULATION AND ORDER CERTIFYING CLASS

METROPOLITAN TRANSPORTATION AUTHORITY, a public benefit corporation, VERON IQUE HAKIM, in her official capacity as interim executive director of the Metropolitan Transp01tation Authority, NEW YORK CITY TRANSIT AUTHORITY, a public benefit corporation, DARRYL C. IRICK, in his official capacity as acting president of the New York City Transit Authority, and THE CITY OF NEW YORK,
Defendants.

WHEREAS, on April 25, 2017, the individual plaintiffs in the above-captioned action (the "Proposed Class Representatives") filed a Complaint, on behalf of themselves and a putative class consisting of all persons who use or seek to use the New York City subway system, and

Case 1:17-cv-02990-KBF Document 63 Filed 11/03/17 Page 2 of 4
have a disability that requires them to use an elevator to access lhe subway system, alleging that Defendants' elevator maintenance practices violate lhc Americans with Disabilities Act, the Rehabilitation Act, and the New York City Human Rights Law;
WHEREAS, the Parties have conferred regarding class ccrtitication and have agreed, subject to the approval of the Court, to the terms and conditions set forth in this Stipulation;
WHEREAS, the Parties agree and stipulate that the number of persons who use or seek to use the New York City subway system, and have a disability that requires them to use an elevator to access the subway system, is so numerous that joinder of all class members is impracticable;
WHEREAS, the Parties agree and stipulate that the allegations in the Complaint raise issues of law and fact that are common to the class, including whether Defendants' elevator maintenance practices are in violation of Federal and/or New York City law;
WHEREAS, each of the Proposed Class Representatives alleges that he is a person who seeks to use the New York City subway system, and has a disability that requires him to use an elevator to access the subway system, the Parties agree and stipulate that the claims or defenses of the Proposed Class Representatives are typical of the claims or defenses of the class;
WHEREAS, the Proposed Class Representatives represent that, as persons who use or seek to use the New York City subway system, and have a disability that requires them to use an elevator to access the subway system, the Proposed Class Representatives and class members have a common interest in showing that Defendants' elevator maintenance practices violate Federal and/or New York City law;
2

Case 1:17-cv-02990-KBF Document 63 Filed 11/03/17 Page 3 of 4

WHEREAS, the Proposed Class Representatives represent, that they are informed about the progress of this litigation, have assisted their counsel in prosecuting this action, and stand

ready to give deposition and trial testimony as necessary; WHEREAS, the Proposed Class Representatives have retained experienced counsel,
Disability Rights Advocates and Sheppard Mullin Richter & Hampton LLP, that have significant experience representing plaintiffs in disability-related litigation, as well as the resources

necessary to properly prosecute this action; WHEREAS, the Parties agree and stipulate that the allegations in the complaint, if
proven, sufficiently show that Defendants acted or rell!sed to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate

respecting the class as a whole; WHEREAS, nothing contained herein shall be construed as an admission on the part of

Defendants as to the truth of any of the allegations in the Complaint; WHEREAS, Plaintiffs aclmowledge that Defendants deny the substantive allegations of
the class, including, without limitation, that Defendants' elevator maintenance practices violate

Federal and/or New York City law; and WHEREAS, Defendants resetve the right to contest any factual representation made by

any of the Proposed Class Representatives, or any other class member;

NOW, THEREFORE, IT IS STIPULATED AND SO ORDERED THAT:

1.

The requirements of Rule 23(a) and 23(b)(2) of the Federal Rules of Civil

Procedure having been met, this action is certified to proceed as a class action on behalf of all

persons who use or seek to use the New York City subway system, and have a disability that

requires them to use an elevator lo access the subway system (the "Class").

3

Case 1:17-cv-02990-KBF Document 63 Filed 11/03/17 Page 4 of 4

2.

Sasha Blair-Cio!dcnsolm. Chris Pangilinan. and Dustin Jones arc appointed

representatives for the Class.

3.

Disability Rights Advocates and Sheppard Mullin Richter & Hampton LLP are

appointed counsel for the Class.

Dated: Novemb$_. 2017 New York, New York ·

DISABILITY RIGHTS ADVOCATES
By:
Maia Goodell Michelle Caiola Jclcna KoJic Sid Wolinsky* 675 Third Avenue, Suite 2216 New York, NY I0017 Tel: (212) 644-8644 Fax: (212) 644-8636
SHEPPARD MULLIN RICHTER & !-lAMPTON LLP
Daniel Brown 30 Rockefeller Plaza NewYork,NY 10112 Tel: (212) 653-8700 Fax: (212) 65:l-~701
Atlorneys.fhr P/ail1 r({li,'
* Admitted pro hac l'icc

The Honorable Katherine B. Forrest United States District Judge
HOGUET NEWMAN REGAL & KENNEY. LLP
By ~C-~~'<:'·1?.~1/L-.. ~ Ira J. Lipton Helene R. 1-lcchtkopf Miriam J. Manbcr Steven M. Silverberg I0 East 40'" Street, 35'" Floor New York, New York 10016 Tel: (212) 689-8808 Fax: (212) 689-5101
AttOrii(\'S./(Jr rnmsit /)t_}(,ndanls

4

 
 Case 1:17-cv-02990-GBD-DCF Document 143 Filed 08/09/19 Page 1 of 30

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

CENTER FOR INDEPENDENCE OF THE DISABLED, NEW YORK, a nonprofit organization, BROOKLYN CENTER FOR INDEPENDENCE OF THE DISABLED, a nonprofit organization, BRONX INDEPENDENT LIVING SERVICES, a nonprofit organization, HARLEM INDEPENDENT LIVING CENTER, a nonprofit organization, DISABLED IN ACTION OF METROPOLITAN NEW YORK, a nonprofit organization, NEW YORK STATEWIDE SENIOR ACTION COUNCIL, a nonprofit organization, SASHA BLAIRGOLDENSOHN, an individual, CHRIS PANGILINAN, an individual, and DUSTIN JONES, an individual, on behalf of themselves and all others similarly situated,

No. 17-cv-2990 (GBD)

Plaintiffs,

-against-

METROPOLITAN TRANSPORTATION AUTHORITY, a public benefit corporation, VERONIQUE HAKIM, in her official capacity as interim executive director of the Metropolitan Transportation Authority, NEW YORK CITY TRANSIT AUTHORITY, a public benefit corporation, DARRYL C. IRICK, in his official capacity as acting president of the New York City Transit Authority, and THE CITY OF NEW YORK,

Defendants.

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

Case 1:17-cv-02990-GBD-DCF Document 143 Filed 08/09/19 Page 2 of 30
TABLE OF CONTENTS I. INTRODUCTION .............................................................................................................. 1 II. PROCEDURAL HISTORY................................................................................................ 3 III. STATEMENT OF FACTS ................................................................................................. 3
A. The Subway Is Crucial to New Yorkers’ Everyday Lives...................................... 3 B. Station Elevators Are in an Alarmingly Poor Condition, Causing
Pervasive Unplanned and Unnecessary Outages that Deprive Persons with Disabilities of Access to the Subway System ................................... 5 1. The MTA’s Inadequate Maintenance of Elevators..................................... 5 2. The MTA Has Made Much Greater Efforts to Maintain
Non-Accessibility Elevators ..................................................................... 10 C. Poor Maintenance Leads to Unpredictable and Pervasive Outages,
Preventing Access for Passengers who Rely on Elevators ................................... 12 IV. LEGAL STANDARD....................................................................................................... 16 V. LEGAL ARGUMENT...................................................................................................... 17
A. The MTA’s Poorly Maintained Elevators and Non-Existent Backup Procedures Bar Access to the New York City Subway System in Violation of the ADA and Section 504 ................................................ 17 1. Federal Law Requires the MTA to Maintain Elevators and Backup Procedures Sufficiently to Provide Meaningful Access to the New York City Subway System to People with Disabilities Who Rely on Elevators.................................................. 17 2. The MTA’s Pervasive Neglect of Subway Elevators Results in Frequent, Unpredictable Outages and Unusable Elevators, Barring Meaningful Access to the Subway System....................................................................................................... 20
B. The MTA’s Systemic Exclusion of People with Disabilities from its Subway System Violates the NYCHRL .......................................................... 23
VI. CONCLUSION................................................................................................................. 25
i

Case 1:17-cv-02990-GBD-DCF Document 143 Filed 08/09/19 Page 3 of 30
TABLE OF AUTHORITIES Cases Alexander v. Choate, 469 U.S. 287 (1985) ................................................................................... 18 Brooklyn Ctr. for Indep. of the Disabled v. Bloomberg, ..................................................................
980 F. Supp. 2d 588, (S.D.N.Y. 2013) ............................................................................... 18, 22 Cupolo v. Bay Area Rapid Transit, 5 F. Supp. 2d 1078, 1083–84 (N.D. Cal. 1997) ....... 19, 21, 22 Disabled in Action v. Bd. of Elections in City of New York,
752 F.3d 189 (2d Cir. 2014) ................................................................................... 16, 18, 20, 22 Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003)......................................... 17, 18, 25 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)............................ 16 Mihalik v. Credit Agricole Cheuvreux N. Am., Inc.,
715 F.3d 102 (2d Cir. 2013) ..................................................................................................... 24 PGA Tour, Inc. v. Martin, 532 U.S. 661, 674–75 ......................................................................... 17 Phillips v. City of New York, 884 N.Y.S.2d 369, 378 (1st Dep't 2009) ........................................ 25 Tennessee v. Lane, 541 U.S. 509, 531 (2004)............................................................................... 18 Ya Chen Chen v. City Univ. of N.Y., 805 F.3d 59, 75 (2d Cir. 2015) ........................................... 23 Statutes 29 U.S.C. § 701(b)(1) ................................................................................................................... 22 29 U.S.C. § 794............................................................................................................................... 3 29 U.S.C. § 794(a) ........................................................................................................................ 17 42 U.S.C. § 12131........................................................................................................................... 3 42 U.S.C. § 12132......................................................................................................................... 17 New York City Administrative Code § 8-101 ................................................................................ 3 New York City Administrative Code § 8-102 .............................................................................. 24 New York City Administrative Code § 8-107(2)(a) ..................................................................... 25 New York City Administrative Code § 8-107(4)(a) ............................................................... 24, 25
ii

Case 1:17-cv-02990-GBD-DCF Document 143 Filed 08/09/19 Page 4 of 30 New York City Administrative § 8-107(15)................................................................................. 24 Rules Fed. R. Civ. P. 56(a) ..................................................................................................................... 16 Regulations 49 C.F.R. § 37.161 .......................................................................................................................... 3 49 C.F.R. § 37.161(a).................................................................................................................... 19 49 C.F.R. § 37.161(c).............................................................................................................. 19, 20 49 C.F.R. 37.161(b) ................................................................................................................ 19, 22
iii

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I. INTRODUCTION This case challenges the Metropolitan Transportation Authority’s (“MTA’s”) failure to maintain the elevators that provide access to the subway system, resulting in frequent, unexpected outages and other access barriers that have the effect of excluding passengers with disabilities. The New York City (the “City”) subway system has long been called the lifeblood of the City. Yet, every year, millions of New Yorkers and visitors whose disabilities prevent them from using stairs are cut off from that lifeblood because of the near-constant disrepair that renders subway station elevators—which are too few in number to begin with—unpredictably and frequently unusable. Compounded by the MTA’s failure to provide adequate accommodations in the all-too-frequent case of elevator dysfunction, this systemic disrepair of elevators effectively excludes people with disabilities from meaningful access to the subway system, undoubtedly one of the most important services the MTA offers. The significance of the MTA’s subway system to New Yorkers’ everyday lives is virtually impossible to overstate. Totaling up to six million rides daily and nearly 1.8 billion rides annually, the New York City subway system completely dominates all other transportation options and is the most frequently used metropolitan transit system in the entire Western world. Its unparalleled popularity among the City’s residents is the direct result of the efficiency and reliability with which it covers hundreds of locations across the City. Without the subway, millions of people would struggle to accomplish such vital everyday tasks as commuting to work, attending school, accessing healthcare and other services, and taking part in social, civic and cultural events. The sheer fact that 76 percent of subway stations are entirely inaccessible is by itself a monumental barrier for the hundreds of thousands of New Yorkers whose disabilities prevent them from using stairs. This already limited access makes proper programmatic maintenance of
1

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the elevators at the remaining 24 percent of stations that provide the sole points of access to the subway for class members especially crucial.
The MTA’s failure to merely follow its own elevator maintenance program is reflected in a wide variety of undisputed evidence. This evidence includes a 2017 New York City Comptroller study finding that 80 percent of the elevators and escalators failed to receive all scheduled preventative maintenance. Three other studies, two commissioned by the MTA, bolster the Comptroller’s finding that the MTA’s elevator maintenance practices are patently inadequate, causing frequent and unnecessary outages. And the MTA admits that it fails to replace elevators at the rate necessary to keep them functioning in a state of good repair and that it fails to employ enough staff to adequately maintain them. The result is to be expected: a high frequency of unplanned elevator outages and elevator entrapments, chronically broken accessibility and safety features, and unsanitary elevator conditions.
These failures are particularly glaring when contrasted with the “special concern” with which MTA views its “Non-Accessibility elevators.” These elevators serve MTA’s non-disabled customers in deep underground stations, where they provide necessary access to an intermediate mezzanine, after which passengers must take at least one additional flight of stairs in order to reach the subway platform. Tellingly, the MTA prioritizes the operability and condition of these Non-Accessibility elevators by engaging outside contractors for their maintenance, prioritizing them for capital replacement, and assigning full-time operators to ensure their continuous cleanliness. Their failure to demonstrate similar care and concern for Accessibility Elevators demonstrates the MTA’s blatant disregard for, and discrimination against, elevator-dependent passengers. The impact is immense: As Plaintiffs’ experiences uniformly reflect, poorly maintained subway elevators impede their ability to make it to their jobs, socialize with friends,
2

Case 1:17-cv-02990-GBD-DCF Document 143 Filed 08/09/19 Page 7 of 30
effectively care for their children, obtain necessary services, and to generally conduct their daily activities without considerable stress, frustration and even fear for their safety.
This exclusion from one of the City’s most vital services violates class members’ rights under both federal and New York City civil rights laws. This programmatic failure violates the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq. (“ADA”) and its implementing regulations, specifically the requirement to maintain “those features of facilities … that are required to make … facilities readily accessible” in “operative condition” with only “isolated or temporary interruptions” permitted, 49 C.F.R. § 37.161. It likewise violates Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq. (“Section 504”), and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-101 et seq. (“NYCHRL”), making a grant of partial summary judgment declaring the MTA liable eminently warranted.
II. PROCEDURAL HISTORY Plaintiffs, individuals and organizations of individuals with disabilities, filed this case on April 25, 2017. Complaint, ECF No. 1. Judge Forrest certified the class on November 3, 2017, by stipulation of the parties; the class definition is “all persons who use or seek to use the New York City subway system, and have a disability that requires them to use an elevator to access the subway system.” Stipulation and Order, ECF No. 63. Fact discovery ended in September 2018, and expert discovery closed on July 5, 2019. At a court conference on May 2, 2019 Judge Daniels ordered dispositive motions to be filed by August 9, with oppositions due September 13 and replies September 30.
III. STATEMENT OF FACTS A. The Subway Is Crucial to New Yorkers’ Everyday Lives
The high ridership figures for the New York City subway attest to its central role in the everyday lives of millions of New Yorkers. In 2017 alone, the MTA provided 2.5 billion trips
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over 13 billion miles. Pls.’ Statement of Undisputed Facts (hereinafter “SOF”) ¶ 2. The subway’s popularity is easily traced to the vital benefits it provides to its riders, including travel at speeds up to 50 miles per hour; efficient and extensive coverage of many parts of the City; the ability to carry a very large number of riders at once; frequency of service, which is often spaced out by mere minutes; availability twenty-four hours a day and seven days a week; relatively low fares; and freedom from surface obstructions such as traffic jams or hazardous weather conditions. It would indeed be impossible to imagine life in the City without this iconic service that millions of people depend on for all facets of their lives.
For all New Yorkers, including class members, there is no true substitute for the New York City subway. The MTA itself admits that its bus service, drastically reduced in recent years, cannot replace the rapid-inter borough transit the subway offers: New York City’s buses are the slowest in the nation, average speeds of just 7.4 miles per hour, and generally do not offer 24/7 service. ¶¶ 15–16. The difference between the two is particularly acute for passengers who use wheelchairs, as they must be strapped and secured by a driver whenever they take the bus, resulting both in additional delays and loss of independence. SOF ¶ 17. The segregated Access-aRide (“AAR”) program is arguably even more inadequate. Not only does the program require reservations “one to two days in advance,” but it also lists maximum ride times of more than an hour for a three to six mile trip and considers a wait up to 30 minutes following a scheduled pickup as “on-time.” SOF ¶ 11. AAR’s constraints—of which the MTA is well aware—make it a patently insufficient replacement for a service as efficient as the subway. SOF ¶¶ 12–14.
Unfortunately, class members are unable to access fully 76% in most of subway stations because those stations completely lack elevators or other stair-free pathways. SOF ¶ 3. The distance between accessible stations can exceed 30 blocks and several miles. SOF ¶ 4. Of the 122 NYC neighborhoods that are served by the subway system, 62 do not have a single accessible
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subway stop. SOF ¶ 5. Further, all but a handful of the 24% of stations that do offer accessibility require passengers who cannot climb stairs to use an elevator to access the trains—in most cases two or three elevators per station. SOF ¶¶ 7–8. Because the majority of these elevators are not redundant, a single inoperable elevator will typically render the entire station inaccessible to class members. SOF ¶ 9. The subway system is thus as inaccessible as it is popular, making the impact of additional access barriers in the form of frequent and unpredictable elevator outages, without alternative backup measures, that much more devastating. B. Station Elevators Are in an Alarmingly Poor Condition, Causing Pervasive
Unplanned and Unnecessary Outages that Deprive Persons with Disabilities of Access to the Subway System 1. The MTA’s Inadequate Maintenance of Elevators
a. The MTA Fails to Follow Its Own Preventative Maintenance Program, Leaving the Elevators in a Shocking State of Disrepair
Four separate studies—including two commissioned by the MTA itself—have identified significant deficiencies in the MTA’s preventative elevator maintenance practices, negatively impacting reliable service. SOF ¶¶ 34; 42; 46–47. A May 2017 report by the New York City Comptroller found that only approximately one-fifth of the elevators and escalators in the audit sample received all of their scheduled preventative maintenance; that 34% of the 849 scheduled preventative maintenance assignments were not completed timely or at all; moreover in 31% of the instances where preventative maintenance service assignments for sampled machines were canceled, the basis for the cancellations were either not supported or were otherwise not in compliance with the MTA’s own Elevator and Escalator (“E&E”) policy. SOF ¶¶ 34–37. These findings led the Comptroller to conclude that “[a]s a result of these deficiencies NYCT cannot ensure that its 407 elevators and escalators are presently, and will continue to be, in good operating condition.” SOF ¶ 34.
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The second MTA-commissioned study, conducted by Vertical Systems Analysis (“VSA”), likewise concluded that key aspects of the MTA’s practices implementing its preventative maintenance protocol were lacking and in need of significant improvement to increase elevator reliability. SOF ¶ 42. In particular, VSA urged that “when a problem is found during the monthly maintenance it should be corrected immediately” since “it would increase the reliability if [the problem] was addressed at the time of service.” SOF ¶¶ 42–44 (also noting that parts and manuals required for proper preventative maintenance were missing from the majority of job sites). As VSA noted, adequate preventative maintenance corresponds with elevator reliability. SOF ¶ 42. Another MTA-commissioned study, conducted by KPMG, echoed these findings. Emphasizing that “[a] significant proportion of [the MTA’s elevator and escalator equipment] have a high probability of experiencing a corrective maintenance event within the next 2 weeks,” the KPMG study reinforced the main conclusion of both the Comptroller’s and the VSA study: MTA’s elevator maintenance program is patently inadequate. SOF ¶ 46.
The findings of the Plaintiffs’ expert, Amicus Elevator Consultant (“AEC”), are in line with the conclusions of these three studies. In particular, AEC conducted comprehensive inspections of four MTA subway elevators and documented a multitude of deficiencies at each one. Because these deficiencies would “not exist if proper maintenance [wa]s being performed in accordance with the E&E procedures,” AEC concluded that elevator maintenance problems are widespread throughout the system. SOF ¶¶ 47–48.
AEC’s elevator inspections and review of accompanying maintenance records revealed that recurring issues at each elevator were addressed solely with stopgap measures, if at all, during routine preventative maintenance—such as E&E maintainers pouring in gallon after gallon of hydraulic fluid rather than fixing leaks. SOF ¶ 51. Indeed, these inspections revealed between 25-53 deficiencies per elevator. SOF ¶ 50. An examination of each machine’s
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maintenance history and records further revealed that the deficiencies were leading to continual entrapments and breakdowns of each of the four machines surveyed. SOF ¶¶ 50; 53; 56; 60 (“Items identified are clearly not being rectified as part of preventative maintenance.”). A number of the deficiencies constitute serious safety hazards—such as the inappropriate installation of a jumper cable to circumvent an important safety feature. SOF ¶ 57; see also SOF ¶ 55 (describing how an MTA mechanic inadvertently caused an elevator to crash into the elevator pit because he was unaware it was storing a 2,000 pound test weight due to unreliable record keeping). Overall, the maintenance records for all four machines indicated that there would be fewer shutdowns if the MTA followed proper preventative maintenance procedures, including conducting higher-quality maintenance, because problems “w[ould] be caught before they turn into emergencies.” SOF ¶ 61. As is, the system is poorly maintained, resulting in perpetual disrepair and chronic unexpected outages. SOF ¶¶ 48–61.
b. The MTA Does Not Replace Elevators at the Rate Necessary to Keep These Machines in Good Repair
The MTA’s failure to conduct sufficient preventative maintenance is further exacerbated by its practice of not replacing elevators at the rate required to keep the machines in a state of good repair. In fact, Mr. Antonio Suarez, the MTA’s Elevator and Escalator division chief, has admitted that “[w]e continue to add equipment and fail to acknowledge the need to replace it at the end of its useful life.” SOF ¶ 72. Another MTA executive echoed this admission, acknowledging that there “has not been the investment to maintain and reach a state of good repair for all the assets categories” including elevators. SOF ¶ 73. This lack of investment is especially apparent from the MTA’s current 2015-2019 Capital Plan, which contemplates merely replacing 16 Accessibility elevators even though Mr. Suarez’s 2020-2039 20-year needs assessment recommended that no fewer than 66 such elevators be replaced. SOF ¶¶ 65–66.
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KPMG’s assessment, discussed in the previous section, sheds additional light on MTA’s subpar replacement practices. After examining the MTA’s elevator availability data and capital replacement program, KPMG concluded that “under the current operational and asset replacement program … it appears there may be adverse impact on both availability and operational cost performance of MTA.” SOF ¶ 71. As KPMG noted, operational availability is lower for older elevators, while operational expenses are higher, in part because “[i]n addition to the impact to increased corrective maintenance and increasing breakdowns, a significant risk is the impact of obsolescence and lack of replacement parts for repair of older machines.” SOF ¶¶ 68–69. It is accordingly apparent that the MTA compounds its preventative maintenance struggles by failing to replace outdated elevators at appropriate intervals.
c. The E&E Department Has A Long-Standing, Undisputed Shortage of Necessary Elevator Maintenance Personnel
A large contributor to the problem of chronic elevator disrepair is the MTA’s longstanding and ongoing shortage of Elevator and Escalator (“E&E” ) Maintainers. SOF ¶¶ 19–24. There is no dispute that, at least over the last eight years, the MTA’s E&E Maintainer division has never been fully staffed and has operated with as many as 40 vacancies, in large part because the MTA has historically failed to offer maintainers a competitive salary as compared to other public agencies such as the New York City Housing Authority. SOF ¶¶ 20–22. Despite recent, post-filing efforts, the MTA acknowledges that it remains short more than 30 maintainers in their E&E Division. SOF ¶¶ 23–24. As MTA E&E Division Chief Antonio Suarez admits, “[t]he primary reason for elevators and escalators being observed out of service is that NYCT is unable to hire all the authorized maintainers in its budget.” SOF ¶ 25. Even when it is able to fill some of these positions, MTA maintainers “rare[ly] have the required skill or training.” SOF ¶ 26. The end result is damning: “[a]s a consequence of this difficulty in recruiting and retaining skilled
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maintainers […], 80% of our equipment fails within two weeks of our maintainers doing preventative maintenance on that equipment.” SOF ¶ 25.
The E&E division’s failure to recruit qualified personnel extends to supervisory staff. In 2015, Mr. Suarez made a budget request for more E&E supervisors, noting that the lack of direct managerial oversight during certain shifts was negatively impacting the productivity of field personnel and consequently the availability of elevator equipment during those hours. SOF ¶¶ 28–29. His request for additional supervisors was denied, SOF ¶ 30, and there is no evidence that the problem has since been rectified. By MTA’s own admission, the culture resulting from this shortage is that of neglect: In the words of Mr. Suarez himself, “the culture [of the E&E division] is: if you missed the problem during maintenance, or ignore the defect, or maybe break something and keep quiet about it, nothing will ever come of it. We need to change that.” SOF ¶ 27. In sum, there is no dispute that the MTA’s failure to adequately staff its maintenance program has contributed to the lack of adequate elevator maintenance.
d. MTA Accessibility Elevators Routinely Lack Required Accessibility Features or Are Unusably Dirty
Even when the elevators are technically operable, the MTA further impedes access by neglecting to maintain elevators’ key features – such as elevator lights and sounds, emergency communication intercoms, and door signaling devices — consistent with the mandates of the ADA Accessibility Guidelines (“ADAAG”) as adopted by the United States Department of Transportation. 36 C.F.R. pt. 1191, apps. B & D. An examination of 61 inspection reports, issued by the MTA’s own ADA Compliance Unit, has revealed that, on average, elevators exhibit 2.19 such deficiencies. SOF ¶¶ 79; 88–89. As a result, class members are often unable to determine if a subway elevator is even functioning due to faulty elevator lights, or to call for assistance in the event they find themselves stranded in an inoperable elevator. SOF ¶¶ 153, 160. These
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breakdowns pose safety hazards to class members and even deter many passengers with disabilities from even attempting to use the subway.
Nor does the MTA do what is needed to keep elevators from being unusably dirty— including with human excrement. In fact, the MTA considered increasing the number of station cleaners to allow each elevator to be cleaned twice, as opposed to the current once per tour, in response to this lawsuit, but failed to do so. SOF ¶¶ 96–97. Indeed, the MTA openly admits that “for the most part the elevators are not staffed so there is no way to prevent somebody from, you know, urinating in the elevator.” SOF ¶ 95. The direct consequence of this neglectful attitude is that class members must routinely choose between rolling into an elevator containing human waste or being functionally stranded at a subway station, a situation that is degrading and discriminatory in itself. See, e.g. SOF ¶¶ 136 (Mr. Jones describing repeated instances of cleanliness issues in subway elevators, including one situation where he was delayed for 30 minutes due to the presence of human waste in an elevator); SOF ¶ 161 (class member April Coughlin encountering cleanliness issues at virtually every elevator she rides, including “[f]eces, urine, garbage, lots of dirt”); SOF ¶ 151 (Monica Bartley, the community outreach specialist for the Center for Independence of the Disabled in New York (“CIDNY”), describing a recent encounter with an unsanitary elevator in which she had to roll through feces to avoid being trapped inside the subway system); see also SOF ¶ 98 (MTA official admitting that an elevator containing human feces is technically operational but probably not usable by customers).
2. The MTA Has Made Much Greater Efforts to Maintain Non-Accessibility Elevators
The MTA’s negligent treatment of the elevators that provide class members with access to the subway system stands in sharp contrast to the MTA’s care and concern for elevators that serve customers who can take stairs. These Non-Accessibility Elevators, which are part of the necessary path of travel through deeply underground stations, do not serve class members
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because customers must also take one or more flights of stairs to get to the train. SOF ¶ 79. By the admission of NYCT’s director of the Office of Management and Budget Aaron Stern, the MTA views Non-Accessibility Elevators with “special concern” because “an outage of those elevators has a greater impact on riders since the elevator is the primary means of entrance and egress from the station.” SOF ¶ 82 (emphasis added). In other words, the Non-Accessibility Elevators are openly prioritized because “you have to use an elevator to physically get out of that particular station.” SOF ¶ 86. It is telling, to say the least, that no such concern is extended to Accessibility Elevators even though they are the primary means of entrance and egress to all subway stations for passengers who cannot use stairs.
The MTA demonstrates its practice of prioritizing Non-Accessibility Elevators in a wide variety of ways. For one, it awarded a $12 million contract to outsource the maintenance of 18 of these elevators in December 2017. SOF ¶ 83. Further, it is replacing all 18 Washington Heights Non-Accessibility Elevators on an expedited basis, and is indeed replaing 26 of the subway system’s 44 Non-Accessibility Elevators as part of its 2015-2019 Capital Plan, a rate in sharp contrast with the Accessibility Elevators’ replacement rate of 16 in the same 5-year period. SOF ¶¶ 67, 87. No less significantly, as discussed above, the MTA employs elevator operators, who remain in the elevator at all times, for many of their Non-Accessibility Elevators. SOF ¶¶ 84–85.
The MTA’s discriminatory focus on Non-Accessibility Elevators is especially evident from the fact that, unlike Accessibility Elevators, they are all redundant, meaning more than one elevator serves the same path of travel. SOF ¶ 80. In other words, if an Accessibility Elevator fails a class member seldom has other options, whereas passengers who rely on NonAccessibility Elevators can simply use an alternate elevator at that same station to reach their same destination. SOF ¶ 9. Yet the MTA prioritizes replacements, maintainers and elevator operators for their redundant Non-Accessibility Elevators without ensuring similar resources for
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Accessibility Elevators, even though the latter provide the sole access to the system for class members. Thus, the MTA’s “special concern” for Non-Accessibility Elevators highlights its neglect of Accessibility Elevators. C. Poor Maintenance Leads to Unpredictable and Pervasive Outages, Preventing
Access for Passengers who Rely on Elevators The inevitable consequence of MTA’s wholly deficient maintenance program is frequent, unpredictable outages which results in the regular denial of access for people who rely on elevators. Even the MTA’s own expert, Dr. Salzberg, admits that 80% of elevator outages are unplanned. SOF ¶ 33. (“[A]pproximately 20% of the time elevators are out of service is attributable to planned preventative maintenance or planned inspections”). Indeed, in the threeyear period covered by the MTA data Dr. Salzberg examined, every single accessible stop in the system experienced a quarter of low elevator availability, well below the median. SOF ¶ 76.1 Further compounding the problem, there is up to a 45-minute lag time between when an elevator stops working and when the MTA notifies the public about that outage. SOF ¶ 100. Nor can the MTA claim they are unaware of the general disrepair of subway elevators and the everyday impact of this disrepair. In 2017, the number of complaints the MTA received on the issue of elevator dysfunction totaled 393, up from 371 the prior year. SOF ¶ 91. The MTA admits that the “[m]ajority of these complaints are due to the fact that the elevator . . . has not
1 The MTA is likely to lean heavily on Dr. Salzberg’s claim that the median quarterly elevator reliability is 98%. Caiola Dec. Ex. 1. This meaningless statistic is generated from LiftNet data, yet LiftNet, the MTA’s remote elevator monitoring system is so badly outdated that the MTA cannot rely on it. SOF ¶¶ 99–103. Instead, the MTA instructs control desk workers to independently verify each elevator outage before informing the public. SOF ¶¶ 100–01. This antiquated process is so time-consuming and fraught with human error, it routinely fails to produce up-to-date, accurate data or information. SOF ¶ 100. Setting aside Plaintiffs’ position that the 98% figure is both faulty and deceptive, it is particularly meaningless for purposes of this motion which focuses on the access barriers caused by MTA’s indisputably deficient elevator maintenance program.
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been fixed promptly or [the outage] occurs frequently.” SOF ¶ 93. Further, “[m]any times the customer complaint notes that the elevator has been out of service for more than 2 weeks (sometimes months),” while “[o]ther complaints note that the customer has gone to another station close by only to find that this elevator too, is out of service as well as the website not being current with which elevators are out of service.” Id. It is accordingly abundantly clear that the MTA is on ample notice of the many issues besetting its elevator maintenance program.
The result is an elevator system that is so highly unpredictable, delayed, frustrating, and even dangerous as to be frequently unusable for people who rely on elevators. Plaintiff Chris Pangilinan, for example, has kept a detailed log of every elevator outage he has encountered since moving to the City in November 2014, and it shows he has been impacted by an unexpected elevator outage during 14.9% of his trips on the subway system. SOF ¶ 105-106. Other class members are routinely forced to rely on strangers to avoid being stranded within the subway system. Plaintiff Dustin Jones has repeatedly been carried out of stations by the fire department as well as by perfect strangers when outages have made it impossible for him to get out of stations on his own. SOF ¶¶ 132–134.2 Similarly, Plaintiff Sasha Blair-Goldensohn recalls an instance when, while on his way to pick up his kids from school, he encountered a handwritten note next to a station elevator advising him that both of the elevators needed to reach the street were out-of-service. SOF ¶ 125. On that occasion, Mr. Blair-Goldensohn had to
2 On one especially humiliating occasion, Mr. Jones approached an MTA station agent for assistance after becoming stranded at the station due to an unexpected outage and was merely told to get back on the subway and travel to the next station. When Mr. Jones informed the station agent that the next station was not accessible, the agent replied “what do you want me to do?” and walked away. Mr. Jones ultimately had to plead with fellow passengers for assistance, facing the indignity of having to assure them that he was not begging for money, but merely seeking help out of the station so he could go to a meeting. SOF ¶¶ 133–134.
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threaten to call 911 in order to receive assistance with exiting the station from the in-station MTA police officer. Id.
Plaintiffs routinely experience significant delays in their travels. On numerous occasions, Mr. Jones has wasted hours of his time because he was forced into long detours on account of elevator outages. SOF ¶ 131. As just one example, Mr. Jones recently experienced an unexpected outage while attempting to travel from the Fulton St Subway Station to 14 St-Union Square Station. He ultimately had to wheel .7 miles in the cold to complete what would have been an eight-minute subway trip for an able-bodied passenger. Id.: see also SOF ¶ 139 (Plaintiff Chris Pangilinan describing an incident where an unexpected elevator outage resulted in a 45-minute wasted round trip after attempting to run a routine errand).
The risk of becoming stranded and/or expending significant time on detours is heightened by the frequently inaccurate and delayed elevator status information the MTA provides. Although she typically checks the MTA’s elevator status information before each trip, Ms. Bartley routinely encounters malfunctioning elevators. SOF ¶ 151. And because her motorized wheelchair cannot be carried up subway stairs, Ms. Bartley endures long, circuitous detours whenever she is stranded by an out-of-service elevator. Id. For example, she once encountered an unexpected outage causing her to be unable to exit the system at the end of what should have been a 10-minute subway trip; because of this, Ms. Bartley had to re-board the subway, travel back to her original station, and then board a bus, eventually arriving at her destination two hours later. Id. Experiences of Christina Curry and the Harlem-based residents with disabilities she assists through her organization Harlem Independent Living Center (“HILC”), are no different. SOF ¶¶ 140–43. The MTA’s inaccurate reporting of elevator status has even deterred some class members from attempting to rely on the MTA’s notification system at all. SOF ¶ 107.
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Lastly, subway elevators are not only unreliable and unpredictable, but unsafe. According to the MTA’s own data, in 1,574 days from December 19, 2013 through April 10, 2018, there were 4,812 entrapments—an average of more than three daily instances of passengers being trapped in MTA elevators. SOF ¶ 78. Class members’ experiences reflect this data. Plaintiff Christina Curry, the HILC director, testified about several constituents who were stuck in Accessibility Elevators within the past year alone. SOF ¶¶ 140, 143 (stating that she was also temporarily entrapped inside a subway elevator and was assisted by fellow passengers who managed to pry the door open). Plaintiff Sasha Blair-Goldensohn worries about the possibility of entrapment every time he enters a subway elevator given their poor condition; experiences like watching a group of people, including several children, have to be rescued by emergency personnel from a stuck elevator further heighten concerns. SOF ¶ 124. The barriers regularly encountered by class members in the subway system is, in short, ongoing and severe.
In fact, many class members are deterred from riding the subway altogether solely because of the condition of subway elevators. Although she would greatly prefer to use the subway, Ms. Bartley relies on the significantly more time-consuming AAR to commute from her home in Brooklyn to CIDNY’s offices near Union Square because the subway elevators break down too frequently to allow her to get to work on time on a consistent basis. SOF ¶ 150 (also explaining the limited flexibility stemming from AAR’s advance requirements for ride reservations). Class member Grace Agalo-Os initially took the subway daily to John Jay College; however, because she soon grew tired of being late for class, spending money on taxis due to outages, and having to beg strangers for assistance when stranded and subsequently switched to AAR as well. SOF ¶ 152. Class member Karin Willison, a power wheelchair user from Indiana, relies on an expensive rental car whenever she visits New York because she cannot afford to waste her limited time in the City on detours caused by elevator outages. SOF ¶¶ 154–57
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(recalling her first trip to the City when she attempted to take the subway to Battery Park but ultimately had to travel back to her origin station and then take an hour-long bus to reach her destination thanks to an elevator outage).
Other subway systems, such as the Washington Metropolitan Area Transit Authority (“WMATA”) and Massachusetts Bay Transportation Authority (“MBTA”) make greater efforts to accommodate passengers when impacted by elevator outages, such as by providing shuttle service for passengers with disabilities who are inconvenienced by an elevator outage. SOF ¶ 111. The MTA, however, has never even considered routinely providing alternative transportation to customers who are stranded by sudden outages, or even making announcements about out-of-service Accessibility Elevators. SOF ¶¶ 108–10.
Overall, the MTA’s policy of indifference results in frequent and unexpected outages; hazardous situations in which passengers have to beg strangers to help them out of stations; significant losses of time due to unplanned-for detours; elevator status information that is delayed and often incorrect; station agents that sit in high booths and are unable to assist or even direct stranded passengers; and signs that are confusing, wrong, posted too high for wheelchair users, or absent altogether. As such, the MTA’s failure to maintain its elevators and other policies, acts, and omissions, are virtually guaranteed to, and indeed do, exclude passengers with disabilities from meaningful access to the subway system, making their daily lives immeasurably more challenging than they would otherwise be.
IV. LEGAL STANDARD Summary judgment is appropriate where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (noting that “the nonmoving party must come forward with ‘specific facts showing that
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there is a genuine issue for trial” in order to survive a motion for summary judgment) (quoting Fed. R. Civ. P. 56(e) (italics in original). When a plaintiff demonstrates that there is no genuine issue of material fact as to the defendant’s liability, the court may grant partial summary judgment on liability and later address remedies. See, e.g., Disabled in Action v. Bd. of Elections in City of New York, 752 F.3d 189 (2d Cir. 2014) (affirming grant of summary judgment on liability followed by subsequent order of remedial plan for systematic barriers to poll site access for voters with mobility and vision disabilities).
V. LEGAL ARGUMENT A. The MTA’s Poorly Maintained Elevators and Non-Existent Backup Procedures Bar
Access to the New York City Subway System in Violation of the ADA and Section 504 Despite repeated pleas from the disability community, the MTA has neglected and continues to neglect maintenance of the scarce Accessibility Elevators that provide hundreds of thousands of passengers critical access to the subway. Moreover, the MTA does virtually nothing to assist passengers stranded by the resulting frequent and unpredictable outages. The result is the unlawful, systemic exclusion of passengers with disabilities from the subway system, in violation of the ADA and Section 504. 1. Federal Law Requires the MTA to Maintain Elevators and Backup Procedures
Sufficiently to Provide Meaningful Access to the New York City Subway System to People with Disabilities Who Rely on Elevators. Passed to “remedy widespread discrimination against disabled individuals,” and combat the historical tendency to “isolate and segregate individuals with disabilities,” PGA Tour, Inc. v. Martin, 532 U.S. 661, 674–75 (quoting 42 U.S.C. § 12101(a)(2)), the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Section 504 likewise
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prohibits programs and activities receiving federal financial assistance from excluding, denying benefits to, or discriminating against “otherwise qualified” individuals with a disability. 29 U.S.C. § 794(a). Courts consider the merits of these claims together as they have nearly identical standards. See Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003) (internal citations and quotations omitted).
There can be no material dispute that (1) Plaintiffs and the class are qualified individuals with disabilities; (2) the MTA is subject to the ADA Title II and Section 504; and (3) Plaintiffs and the class have been and are being denied the opportunity to participate in or benefit from the MTA’s services, programs, or activities—the subway system—or are otherwise discriminated against by the MTA because of their disability. See Disabled in Action, 752 F.3d at 196–97. Indeed the MTA has admitted that the first two prongs of this test are met. Declaration of Michelle Caiola (“Caiola Decl.”) Ex. 57.
Discrimination under these laws includes not only action, but failure to act: [r]ecognizing 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 architectural and other barriers to accessibility.” Tennessee v. Lane, 541 U.S. 509, 531 (2004) (citing 42 U.S.C. § 12131(2)). Further, the ADA requires not only that people with disabilities be provided with access to public services, but that they be provided with meaningful access. Alexander v. Choate, 469 U.S. 287, 301 (1985); see Brooklyn Ctr. for Indep. of the Disabled v. Bloomberg, 980 F. Supp. 2d 588, 640-41 (S.D.N.Y. 2013). “Individuals may be deprived of meaningful access to public programs due to architectural barriers or a public entity's failure to modify existing facilities and practices.” Disabled in Action, 752 F.3d at 197. Moreover, in this Circuit, plaintiffs need only “suggest the existence of a plausible accommodation, the costs of which, facially, do not clearly exceed its benefits” to shift the burden to defendant to show that
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the accommodation is unreasonable. Henrietta D., 331 F.3d at 280 (quoting Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 138 (2d Cir. 1995)).
The ADA’s implementing regulations make clear that one of the accommodations that must be offered is adequate maintenance of accessible features—including elevators. Entities providing transportation services must maintain “those features of facilities . . . that are required to make . . . facilities readily accessible” in “operative condition,” see 49 C.F.R. § 37.161(a). To comply, “[a]ccessibility features shall be repaired promptly” and individuals with disabilities are entitled to reasonable accommodation while the repairs are ongoing. 49 C.F.R. 37.161(b). Any pattern of unreliable elevator service, including regular unscheduled outages unrelated to maintenance or repair, constitutes an ADA violation. See 49 C.F.R. § 37.161(c) (only “isolated or temporary interruptions in service or access due to maintenance or repairs” are permissible).
In a case strikingly similar to this one, Cupolo v. Bay Area Rapid Transit, 5 F. Supp. 2d 1078, 1083–84 (N.D. Cal. 1997), the court emphasized: “The only limitation on liability specified in the regulations is the exception for temporary or isolated interruptions due to maintenance or repairs.” Id. at 1084 (citing 49 C.F.R. § 37.161(c)). The court ruled that plaintiffs were thus likely to prevail in their claim that the transit authority was discriminating in violation of disability law, notwithstanding the elevators’ reported overall reliability rate of 97 percent: Evidence showed that there were “pervasive problems with [those] elevators,” limiting everyday access for people with disabilities to an unacceptable degree. Cupolo, 5 F. Supp. at 1085 (granting preliminary injection based on “pervasive pattern of neglected maintenance”).
Plaintiffs and the class are people with disabilities who are entitled to meaningful access to the New York City subway system. Because the MTA does not maintain its accessible features—the elevators—the MTA is liable for violating the ADA and Section 504.
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2. The MTA’s Pervasive Neglect of Subway Elevators Results in Frequent, Unpredictable Outages and Unusable Elevators, Barring Meaningful Access to the Subway System

The MTA’s failure to ensure appropriate maintenance of Accessibility Elevators violates

the implementing regulations’ mandate to ensure “operative condition” of “those features of

facilities … that are required to make … facilities readily accessible,” see 49 C.F.R. § 37.161(a).

The pattern of pervasive neglect is strikingly similar to the one in Cupolo, 5 F. Supp. 2d at 1085.

In particular, the undisputed evidence shows that Defendants do not perform scheduled

preventative maintenance the majority of the time—failing to follow their own program. SOF

¶¶ 35-36. They do not have the personnel they admit they need, at least in part because they do

not pay a competitive salary. SOF ¶¶ 19-25. They do not replace Accessibility Elevators at

anything remotely approaching the rate needed to maintain them in a state of good repair. SOF

¶¶ 65–66. They do not take easily available steps to prevent these elevators from becoming

unusably dirty. SOF ¶¶ 94–97. The resulting access barriers are accordingly a clear consequence

of the MTA’s “failure to modify existing … practices” as required under the meaningful access

standard. Disabled in Action, 752 F.3d 189, at 197. Such failure contrasts sharply with the effort

and investment made for Non-Accessibility Elevators, demonstrating that the MTA knows how

to and is quite able to maintain subway system elevators when it so chooses. SOF ¶¶ 82–87.

The resulting state of disrepair of Accessibility Elevators cannot be disputed. There is

indeed an accumulation of corroborating evidence that this disrepair extends far beyond “isolated

or temporary interruptions in service or access due to maintenance or repair.” 49 C.F.R.

§ 37.161(c). The evidence, among others, encompasses:

•

The MTA’s own expert’s admission that unplanned outages, rather than

preventative maintenance or planned inspections, account for 80% of the

Accessibility Elevator downtime for the MTA. SOF ¶ 33.

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•

The MTA’s own data revealing an average of over three entrapments per day in

the period between December 2013 and April 2018, SOF ¶ 78.

•

The MTA’s own ADA compliance inspections’ finding that there are, on average,

2.19 ADA-related deficiencies per elevator. SOF ¶ 89.

•

The fact that nearly 400 customer complaints, the vast majority of which

concerned improperly functioning elevators, were filed in 2017 alone. SOF ¶¶ 91-

93 .

•

The 2017 New York City Comptroller study’s finding that only 20% of elevators

and escalators received all preventative maintenance, while no more than 34% of

the 849 scheduled preventative maintenance assignments were completed timely

or indeed at all. SOF ¶¶ 32-36.

These facts, taken together with class members’ real life experiences, amply attest to MTA’s

“pattern of pervasive neglect” even stronger than the pattern the court condemned in Cupolo.

It is especially telling that the results of the Comptroller’s study, discussed above, are

corroborated by several additional studies, two of which were commissioned by the MTA itself,

and that there is no contrary evidence in the record. In particular, the New York City

Comptroller’s finding that the MTA failed to comply with its own preventative maintenance

program for 80% of audited elevators is supported by the findings of the VSA, KPMG, and AEC

reports. SOF ¶¶ 34; 42; 46; 48. The record contains no admissible evidence to dispute these

studies’ conclusions because the MTA’s proffered elevator expert failed to inspect MTA

elevators or review any maintenance records. Mem. of Law in Supp. of Pls’ Mot. to Exclude

Expert Test. of Dennis W. Olson, filed herewith.

Perhaps most importantly, Plaintiffs’ own experiences powerfully demonstrate the

ongoing exclusion they suffer thanks to MTA’s neglect of Accessibility Elevators. Each

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member’s experience is indeed a key testament to the everyday realities of trying to access a system whose elevators, scarce in number to begin with, are so frequently either out of order without prior warning or otherwise essentially inoperable thanks to key components’ high failure rate. Among other things, class members have experienced being trapped inside stations and having to rely on complete strangers to carry them and their wheelchairs out into the streets; not being able to call for help while stuck inside elevators thanks to accessible features’ inoperability; having to give up on using elevators that were supposedly in service because a feature such as the doors was not functioning properly; and having to wait on assistance because the elevator was so soiled as to be effectively unusable. SOF ¶¶ 124-26, 132–136, 140, 142–43; 153. In short, when class members attempt to take advantage of the subway service, they can frequently only do so with the assistance of other people. Partial access with the help of outside assistance is not meaningful program access. See Disabled in Action, 752 F.3d at 199-200 (noting that although the plaintiffs were able to vote with the “fortuitous assistance of others, the purpose of the Rehabilitation Act is ‘to empower individuals with disabilities to maximize employment, economic self-sufficiency, independence, and inclusion and integration into society”) citing 29 U.S.C. § 701(b)(1).
Contrary to its obligation to give priority to ways of offering services “in the most integrated setting appropriate,” Disabled in Action, 752 F.3d at 198 (quoting 28 C.F.R. § 35.150(b)(1)), the MTA spends $450 million per year—about $70 per trip—on the inferior and segregated AAR program. SOF ¶ 11. Relegating passengers to this expensive and sub-par system because of disabilities that inhibit their use of stairs, rather than providing an accessible subway, is a clear act of discrimination. See Cupolo, 5 F. Supp. 2d at 1084. Thus, as in Brooklyn Center for Independence of the Disabled v. Bloomberg, the MTA fails to do what is needed to ensure meaningful access to people with disabilities.
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Finally, compounding the barriers caused by MTA’s patently deficient elevator maintenance program, the MTA fails to comport with the mandate to ensure reasonable accommodation while elevator repairs are ongoing. see 49 C.F.R. 37.161(b), not even taking simple measures other systems offer like on-demand shuttles during elevator outages. SOF ¶¶ 109–11. Indeed, MTA has not even bothered to upgrade its aged and faulty LiftNet system to ensure the provision of timely information regarding outages, currently resulting in confusing, unreliable information about the 80% of outages that are unplanned. SOF ¶¶ 33; 99–101. The MTA’s refusal to provide even the most basic of alternative accommodations during the frequent, unpredictable outages in the subway system is in itself a violation of the ADA and Section 504—a violation that exacerbates the exclusionary effects of its underlying failure to maintain the elevators.
Altogether, “the pervasive pattern of neglect” — as reflected by the lack of programmatic maintenance combined with the complete absence of accommodation in the all-too-frequent case where an elevator is either out of order or effectively unusable — clearly attests to MTA’s blatant violation of the meaningful access standard. That the subway system -- replete with these unnecessary and correctable barriers3 -- offers few elevators to begin with only underscores the grim realities faced by elevator-dependent passengers. The totality of these objective facts compels a finding of liability. B. The MTA’s Systemic Exclusion of People with Disabilities from its Subway System
Violates the NYCHRL It is well established that the New York City Human Rights Law (“NYCHRL”) is broader than its federal counterparts. See, e.g., Ya Chen Chen v. City Univ. of N.Y., 805 F.3d 59,
3 As demonstrated by the “special-care” applied to Non-Accessibility elevators, MTA demonstrates that it is fully aware and capable of remedying the barriers faced by riders with disabilities.
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75 (2d Cir. 2015) (“[I]nterpretations of state and federal civil rights statutes can serve only as a floor below which the [NYCHRL] cannot fall.”) (quoting The Local Civil Rights Restoration Act of 2005, N.Y.C. Local Law No. 85, § 1 (2005) (“Restoration Act”)). Courts must conduct a separate analysis from federal law and give the NYCHRL liberal construction “for the accomplishment of the uniquely broad and remedial purposes” of the law. Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013) (quoting Restoration Act § 7).
Accordingly, even if the MTA was not liable under the federal law – and it is – it would still be obligated to remove the barriers in question under the NYCHRL.4 It would indeed be fundamentally at odds with the local law’s expressly articulated “uniquely broad and remedial purposes” to hold that the MTA has no obligation to safeguard access to one of its most vital services for passengers with disabilities.
Here, the MTA’s conduct violates NYCHRL’s mandate to provide full and equal access to public accommodations on the basis of disability. See N.Y.C. Admin. Code § 8-107(4)(a) (making it “an unlawful discriminatory practice“ to deny “full and equal enjoyment, on equal terms and conditions, of any of the accommodations, advantages, services, facilities or privileges of the place or provider of public accommodation” on the basis of “actual or perceived . . . disability,” whether the denial is done “directly or indirectly”). This provision reaches both defendants as providers of a public accommodation and subway stations as places of public
4 The MTA is subject to the requirements of the NYCHRL, including with respect to subway access, as the New York State Supreme Court just affirmed. See Decision and Order, Ctr. for Independence of the Disabled, N.Y. v. Metro. Transp. Auth., No. 153765/2017 (N.Y. Sup. Ct. June 5, 2019) (attached as Caiola Dec. Ex. 80), notice of appeal filed (Jun. 28, 2019); see also Levy v. Comm’n on Human Rights, 85 N.Y.2d 740 (1995) (holding New York City Transit subject to the NYCHRL in employment discrimination case); Bumpus v. New York City Transit Auth., N.Y.S.2d 99, 109–10 (2d Dep’t 2009) (same, in public accommodation discrimination case).
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accommodation. N.Y.C. Admin. Code § 8-102. In addition, the MTA’s lack of proper elevator maintenance violates NYCHRL’s reasonable accommodation provision. See id. § 8-107(15) (mandating reasonable accommodations unless doing so would pose undue hardship).
The NYCHRL requirement to ensure equal access to the subway system, including through reasonable accommodations, cannot be limited by federal law. For example, the definition of reasonable accommodation is broader under the NYCHRL that it is under the ADA and Section 504, and the showing required to shift the burden onto the defendant to demonstrate undue hardship is even lower than the analogous requirement under federal law. Phillips v. City of New York, 884 N.Y.S.2d 369, 378 (1st Dep't 2009). Further, the NYCHRL requires “full and equal access, on equal terms and conditions,” § 8-107(4)(a)(2)(a), a mandate that is broader than the already expansive federal “meaningful access” standard. See Henrietta D., 331 F.3d at 27778 (discussing federal meaningful access standard). Accordingly, even in the event that the MTA’s abysmal maintenance program passes muster under federal law—and it does not — summary judgment on liability would be warranted under the broader NYCHRL.
VI. CONCLUSION Rampant access barriers caused by the MTA’s longstanding, systemic failure to implement programmatic maintenance and provide help when a station elevator is unavailable, effectively exclude customers whose disabilities prevent them from using stairs from meaningful access to the MTA’s subway program. Because both federal and city law obligate defendants to provide such access for each of the programs they run, the MTA’s conduct is in clear violation of ADA, Section 504 and the NYCHRL. Plaintiffs accordingly respectfully request that this Court grant their application for a partial summary judgment on liability under each of the enumerated statutes.
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Dated: August 9, 2019 New York, New York

Respectfully submitted, DISABILITY RIGHTS ADVOCATES

_____________________________________ Michelle Caiola Maia Goodell Emily Seelenfreund DISABILITY RIGHTS ADVOCATES 655 Third Avenue, 14th Floor New York, NY 10117-5621 Tel: (212) 644-8644 Fax: (212) 644-8636
Jelena Kolic DISABILITY RIGHTS ADVOCATES 10 South LaSalle Street, 18th Floor Chicago, IL 60613 www.dralegal.org 312-559-4660 Ext. 7560 (Tel) 212 644 8636 (Fax)
SHEPPARD, MULLIN, RICHTER & HAMPTON, LLP Daniel L. Brown 30 Rockefeller Plaza, 39th Floor New York, NY 10112 Tel: (212) 653-8700 Fax: (212) 653-8701 dlbrown@sheppardmullin.com
Attorneys for Plaintiffs

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 Case 1:17-cv-02990-GBD-DCF Document 162 Filed 08/09/19 Page 1 of 29

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
CENTER FOR INDEPENDENCE OF THE DISABLED, NEW YORK, a nonprofit organization, BROOKLYN CENTER FOR INDEPENDENCE OF THE DISABLED, a nonprofit organization, BRONX INDEPENDENT LIVING SERVICES, a nonprofit organization, HARLEM INDEPENDENT LIVING CENTER, a nonprofit organization, DISABLED IN ACTION OF METROPOLITAN NEW YORK, a nonprofit organization, NEW YORK STATEWIDE SENIOR ACTION COUNCIL, a nonprofit organization, SASHA BLAIR-GOLDENSOHN, an individual, CHRIS PANGILINAN, an individual, and DUSTIN JONES, an individual, on behalf of themselves and all others similarly situated,
Plaintiffs,
-against-
METROPOLITAN TRANSPORTATION AUTHORITY, a public benefit corporation, VERONIQUE HAKIM, in her official capacity as interim executive director of the Metropolitan Transportation Authority, NEW YORK CITY TRANSIT AUTHORITY, a public benefit corporation, DARRYL C. IRICK, in his official capacity as acting president of the New York City Transit Authority, and THE CITY OF NEW YORK,
Defendants.

17 Civ. 2990 (GBD)
TRANSIT DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT

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Table of Contents Table of Contents ........................................................................................................................... i Table of Authorities ...................................................................................................................... ii I. PRELIMINARY STATEMENT .......................................................................................... 1 II. FACTUAL BACKGROUND ............................................................................................... 2
A. New York City’s Transportation System ........................................................... 2 B. NYCT’s Elevator and Escalator Maintenance Department ............................. 3
i. The Equipment.......................................................................................... 3 ii. E&E’s Maintenance and Repair Protocol .............................................. 4 iii. Recent Changes in E&E ......................................................................... 4 C. Elevator Performance........................................................................................... 5 D. How NYCT Handles Elevator Outages .............................................................. 7 i. Unanticipated Outages.............................................................................. 7 i. Outage Notifications to Customers .......................................................... 8 i. Anticipated Outages .................................................................................. 9 E. Options for Customers When There Are Elevator Outages ........................... 10 F. NYCT’s Dedication to the Station Environment ............................................. 11 III. SUMMARY JUDGMENT STANDARD........................................................................... 11 IV. ARGUMENT ....................................................................................................................... 12 A. Statutory and Regulatory Framework.............................................................. 12 B. NYCT Is In Compliance With the ADA and its Regulations.......................... 15 C. The Program or Activity Provided by New York City Transit is Compliant with the ADA as a Whole.................................................................................... 18 D. “Operative Condition” and Alternative Means of Travel............................... 19 E. NYCT Appropriately Cleans Its Elevators....................................................... 22 F. The New York City Human Rights Law Does Not Apply to NYCT .............. 23 G. Defendants Are In Compliance With the NYCHRL ....................................... 24 V. CONCLUSION .................................................................................................................... 25
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Table of Authorities
Cases Anderson v. Liberty Lobby, Inc.,
477 U.S. 242 (1986) ............................................................................................................... 11 Brooklyn Ctr. for Indep. of the Disabled v. Bloomberg,
980 F. Supp. 2d 588 (S.D.N.Y. 2013) .................................................................................... 15 CBS Outdoor, Inc. v. City of New York,
50 Misc. 3d 283 (Sup. Ct. N.Y. Cnty. 2015) .......................................................................... 24 Daubert v. Lindsay Unified Sch. Dist.,
760 F.3d 982 (9th Cir. 2014) .................................................................................................. 19 DiCarlo v. Walgreens Boot All., Inc., No. 15-CV-2919(JPO), 2016 WL 482982 (S.D.N.Y. Feb. 5, 2016) ........................................... 15 Disabled in Action v. Bd. of Elections.
752 F.3d 189 (2d Cir. 2014) ................................................................................................... 12
Foley v. City of Lafayette, 359 F.3d 925 (7th Cir. 2004) ................................................................................................. 20
Gonzalez v. Wright, 665 F. Supp. 2d 334 (S.D.N.Y. 2009) .................................................................................... 11
Greer v. Richardson Indep. Sch. Dist., 472 F. App’x 287 (5th Cir. 2012) ........................................................................................... 19
Henrietta D. v. Bloomberg, 331 F.3d 261 (2d Cir. 2003) ................................................................................................... 12
Kirola v. City & Cnty. of San Francisco, 860 F.3d 1164 (9th Cir. 2017) .......................................................................................... 18, 19
Lowell v. Lyft, Inc., 352 F. Supp. 3d 248 (S.D.N.Y. 2018) .............................................................................. 24, 25
Martin v. Metropolitan Atlanta Rapid Transit Authority, 225 F. Supp. 2d 1362 (N.D. Ga. 2002) ................................................................................... 21
Martinelli v. Bridgeport Roman Catholic Diocesan Corp., 196 F.3d 409, 428 ....................................................................................................................11
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) ............................................................................................................... 11
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Parker v. Universidad de P.R., 225 F.3d 1 (1st Cir. 2000) ...................................................................................................... 19
People v. Metro-North Commuter R.R. Co., 132 Misc. 2d 1072 (Crim. Ct. Bronx Cnty. 1986) .................................................................. 24
Stewart v. New York City Transit Auth., No. 03 Civ. 10329 (RWS), 2007 WL 656993 (S.D.N.Y Feb, 27. 2007) .............................................................. 16
Williams v. Chicago Transit Auth., No. 16 C 9072, 2017 WL 4467456 (N.D. Ill. Sept. 30 2017) .......................................................................... 21
Williams v. N.Y.C. Hous. Auth., 872 N.Y.S.2d (1st Dep’t 2009) ............................................................................................... 15
Statutes 29 U.S.C. § 794 ............................................................................................................................ 12 42 U.S.C. § 12132 ........................................................................................................................ 12 42 U.S.C. § 12134 ........................................................................................................................ 13 42 U.S.C. § 12141 ........................................................................................................................ 13 42 U.S.C. § 12148 .................................................................................................................. 12, 18 42 U.S.C. § 12149..........................................................................................................................12 N.Y.C. Admin. Code § 8-107 ...................................................................................................... 15 N.Y. Public Authorities Law § 1202(1) ....................................................................................... 19 N.Y. Public Authorities Law § 1204(15) ..................................................................................... 23 N.Y. Public Authorities Law § 1261 ........................................................................................... 23 N.Y. Public Authorities Law § 1266 ........................................................................................... 23
Rules Federal Rule of Evidence 702 ........................................................................................................ 1
Regulations 28 C.F.R. § 35 ...................................................................................................................... passim. 49 C.F.R. § 27.7 ........................................................................................................................... 14 49 C.F.R. § 37 ..................................................................................................................... passim.
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I. PRELIMINARY STATEMENT Plaintiffs, five non-profit disability rights organizations and four individuals, brought this
class action suit claiming that elevators in the New York City subway system are too often out of service (or “unavailable”) and that this violates their rights under the Americans with Disabilities Act (“ADA”), the Rehabilitation Act of 1973 (“Rehab Act”) and the New York City Human Rights Law (“NYCHRL”). Defendants are the Metropolitan Transportation Authority (“MTA”) and the New York City Transit Authority (“NYCT’), the operator of the subway system. Plaintiffs also name Veronique Hakim, former interim director of the MTA, and Darryl C. Irick, former acting president of NYCT, both in their official capacities.1
In any case, the indisputable evidence shows that NYCT’s subway elevators on the ADA “path of travel” are in service 96.5% of the time, and 97% of the time during the 6 a.m. to 10 p.m. timeframe. While there are occasional elevator outages, NYCT’s subway elevators are operable almost all of the time. Moreover, the ADA and its implementing regulations explicitly acknowledge that elevators will be out of service from time to time. Accordingly, the law focuses on the need for prompt repair and alternative means of travel in the event that access is impeded due to an elevator breakdown. NYCT has a robust elevator maintenance department that makes prompt repairs and has procedures for maintaining and repairing the elevators in the system. Additionally, to mitigate the impact of elevator outages, NYCT notifies passengers (in advance, where possible) of elevator outages by email and text message, signs posted in stations, and other methods. Moreover, within NYCT’s extensive transportation network, there are ample alternative means of travel in the event of an elevator outage, including alternative subway routes and a bus system, which is designed to cover – and exceed – the scope of the subway system.
1 Plaintiffs also sued the City of New York, which was dismissed without prejudice. (Docket No. 53)
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Plaintiffs are unable to meet their burden of proof in this case. While they offer up a dubious metric relating to the availability of NYCT’s elevators through their own “expert”2, they completely fail to establish that there is an elevator availability percentage that is required by the ADA, its implementing regulations, or any other law; nor have they provided any evidence of an industry standard for elevator availability in a public mass transit system. They have not produced expert testimony that elucidates the required level of elevator availability that the MTA fails to meet. They simply toss out a statistic that is not tethered to any legal standard.
Plaintiffs also claim that the elevators are sometimes allowed to become dirty or smelly to a point at which they violate the ADA. NYCT has in place an extensive elevator cleaning program. Again, Plaintiffs provide no metric by which their claim can be measured under the ADA or Rehab Act; nor have they provided any evidence of an industry standard for elevator cleanliness that they say NYCT has failed to meet.
Finally, Plaintiffs’ New York City Human Rights Law claim fails for the same reasons described above, and regardless, the NYCHRL does not apply to NYCT.
II. FACTUAL BACKGROUND A. New York City’s Transportation System Originally opened in 1904, the New York City subway system is extensive. It operates
24 hours per day, 7 days per week. It is one of the busiest rapid transit networks in the world, handling over 7.7 million rides on an average weekday on its buses and subways, and over 2.3 billion rides each year. The subway network covers 665 miles of track, served by 472 stations. 98 of those stations are ADA accessible, and another 15 provide accessible transfer
2 Defendants simultaneously move to preclude this expert, David Rishel. See Defendants’ Motion Pursuant to Rule 702 of the Federal Rules of Evidence.
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points. NYCT’s bus fleet is entirely accessible, and the bus network goes everywhere the subway goes and more. (56.1 ¶¶ 1-4.)
B. NYCT’s Elevator and Escalator Maintenance Department NYCT’s elevators are maintained (with some exceptions) by the Elevator and Escalator Maintenance Department (“E&E”). E&E is divided into Operations Support and Field Operations. (56.1 ¶ 5.) The Field Operations unit’s 218 elevator and escalator Maintainers, 40 Helpers, and 36 Apprentices are responsible for maintenance and repair of elevators and ancillary equipment across the subway system. (56.1 ¶ 7.) The E&E Division is staffed 24 hours per day, seven days per week, 365 days a year. (56.1 ¶ 8.) i. The Equipment E&E is responsible for 235 “ADA Elevators,” meaning that they are on an accessible route of travel and can be used by individuals who use a wheelchair. (56.1 ¶ 9.) The Subway system is also served by 53 elevators which were not built by NYCT and are neither owned nor maintained by NYCT, 37 of which are on the ADA path of travel. (56.1 ¶¶ 10, 11.) Third-party entities are required to maintain these elevators for customer use under contractual agreements with either NYCT or the MTA. (56.1 ¶ 11.) All NYCT-maintained ADA Elevators are equipped with a remote monitoring system called Lift-Net that provides data to a control center (the Control Desk) regarding the operational status of the elevator, as well as diagnostic messages such as, for example, a problem with doors. (56.1 ¶ 30.) E&E uses a database known as the Elevator and Escalator Reporting and Maintenance System or “EERMS” to collect information about the elevators. Information enters EERMS through both LiftNet and by employees at the Control Desk, who receive information from station personnel and customers about the elevators maintained by NYCT as well as those that
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are privately owned. EERMS records, among other things, the time of notification of the need for service, the source of the notification, the cause of an elevator outage, the response time following notification, and the date and time of return to service. (56.1 ¶¶ 13-15.)
ii. E&E’s Maintenance and Repair Protocol As with any piece of complex machinery, elevators must be maintained periodically. NYCT has a preventative maintenance protocol for all of its elevators, which is outlined in the E&E Maintenance and Inspection Procedures and Checklists (hereinafter the “E&E Manual”). The E&E Manual provides step by step instructions of how preventative maintenance should be completed, and states that preventive maintenance of revenue elevators is carried out in three different cycles of four weeks, six weeks and eight weeks, depending on the condition, usage and performance history of the equipment. (56.1 ¶¶ 16-17.) iii. Recent Changes in E&E In October 2018, NYCT instituted new elevator maintenance protocols. Each elevator is scheduled for preventative maintenance at least twelve times per year, requiring that each be removed from service for approximately five hours each time. Therefore, even without a single elevator breakdown, they could never be available more than 99.2% of the time. (56.1 ¶ 19.) NYCT has also made other changes to improve E&E processes in the past few years: E&E Supervisors are conducting site checks in the field with greater frequency, to ensure maintenance and repair work is done timely, and correctly. (56.1 ¶ 20.) E&E has instituted an apprenticeship program and an “E&E Specialist” title to retain more qualified maintenance employees. (56.1 ¶ 21.) NYCT has also worked with the elevator maintainer’s labor union and negotiated wage increases to make the position more appealing and competitive with similar private sector jobs. (56.1 ¶ 22.) E&E has issued new tool bags to Maintainers to ensure that at
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all times they have all equipment necessary to complete repairs in a timely manner rather than needing to leave the station to get the necessary tools before making the repair. (56.1 ¶ 23.) The department has also placed cleaning supplies in elevator machine rooms at each station, to enable elevators to be returned to service more quickly. (56.1 ¶ 24.) NYCT has also enhanced training provided to elevator Maintainers. (56.1 ¶ 25.)
E&E is also piloting a device that monitors the movement of elevators at 59th Street – Columbus Circle. If the elevator does not move for a pre-set period, an email notification will be sent to the Control Desk. This technology also tracks elevator usage data, which can be used to inform decision-making preventative maintenance and component replacement. A further rollout has been approved to monitor both NYCT and third-party owned elevators. (56.1 ¶ 26.)
NYCT is also augmenting its ability to service the elevators by entering into contracts with outside elevator maintenance contractors. Contractors are currently engaged in maintaining and repairing elevators at subway stations in Washington Heights, and in the new Second Avenue Subway stations. NYCT has also awarded a contract to an outside firm to perform targeted repairs on elevators throughout the system. By contracting out specific elevators and specific targeted repairs, NYCT’s internal E&E workforce has more time and resources to spend performing maintenance and responding to unexpected outages. (56.1 ¶ 27-29.)
C. Elevator Performance NYCT’s expert statistician, Alan Salzberg, analyzed the data kept in the EERMS database. His findings as to elevator availability are summarized as follows: For the period January 1, 2014, through June 30, 2018, the median weekday availability for all ADA Elevators was 98.7%. This availability figure is higher than the median figure on a 24/7 basis (98.0%) because planned preventive maintenance and inspections almost always occur
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late at night or on weekends. The mean figures for weekdays and on a 24/7 basis for this period are 97% and 96.5% respectively. (56.1 ¶¶ 30-32.)
Dr. Salzberg also calculated the availability of each accessible subway stop. A subway stop refers to a stop on a particular platform within a station in a particular direction. A stop may be for one particular line or more than one line or for express or local service only. Thus, a station may consist of multiple stops. In the aggregate, median 24-hour stop availability between January 2014 and June 2018 was 96.4%. When considering only the weekday hours of 6:00 a.m. to 10:00 p.m., median stop availability rises to 97.5%. (56.1 ¶¶ 33-34.)
Finally, when looking at whether a person who requires an elevator can use a station, Dr. Salzberg calculated station availability. He found that median 24-hour station availability for the 2014 through June 30, 2018 period was 98.5% and when considering only the weekday hours of 6:00 a.m. to 10:00 p.m., station availability increases to 99.2%. (56.1 ¶¶ 35-36.)
Dr. Salzberg calculated the frequency with which a hypothetical disabled subway commuter would encounter an interrupted trip, using the (incorrect) assumptions in Plaintiffs’ expert Dr. Andrew Schwarz’s report. Dr. Salzberg found that because there are often alternative itineraries available when a station stop is unavailable due to an outage – a fact Dr. Schwarz overlooked – the probability of having an intended trip interrupted on a round trip basis due to an elevator outage in the Schwarz commutation scenario would be once every seven to eight weeks. (56.1 ¶¶ 37-38.) Using Plaintiffs’ expert’s data, Dr. Salzberg calculated that the typical delay encountered as a result of a commuter’s having to resort to an alternative itinerary would be about 10 minutes. (56.1 ¶ 39.)
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D. How NYCT Handles Elevator Outages NYCT strives to provide elevator outage information as close to real-time as possible, across as many different communication platforms as possible. Before beginning a trip, customers may check elevator status on the MTA website and in the “MYmta” smartphone app. (56.1 ¶ 40.) Customers may also sign up to receive customizable alerts by e-mail or text message when an elevator at the customer’s chosen station or stations goes out of service or is returned to service. (56.1 ¶ 41.) All of these sources of elevator outage information are drawn from the EERMS database maintained by E&E, which is updated in real time, 24 hours per day, as reports of outages and repairs arrive at the E&E control desk. (56.1 ¶ 42.)
i. Unanticipated Outages There are two primary methods through which E&E learns of an unanticipated elevator outage: Sometimes, a customer or NYCT station personnel will report an elevator out of service. In other instances, the LiftNet remote monitoring system reports a “trouble” alert, which means the elevator has gone out of service. (56.1 ¶¶ 43-45.) Regardless of the source of the information, the Control Desk is notified of a suspected elevator outage. Upon notification, someone working at the Control Desk will attempt to remotely access the elevator and mimic an elevator call (pressing the button) from one of the floors. If the elevator is not running, or if the Control Desk cannot determine whether the elevator is moving, an approved elevator outage is opened in EERMS, which automatically notifies the supervisor in charge of the zone responsible for the station at which the outage occurred. The supervisor will then dispatch a crew of Maintainers to the station to investigate the outage, and return the elevator to service as quickly as possible. (56.1 ¶¶ 46-48.)
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Sometimes, Maintainers find the elevator is actually in service when they get to the station. This can happen for many reasons. For example, trash may have temporarily gotten stuck in the elevator door track, preventing the doors from closing. When the trash becomes dislodged, the elevator begins working normally again. Sometimes, customers hold the elevator doors open for too long, which might cause LiftNet to report a door-close alert. (56.1 ¶ 49.)
If the elevator is out of service when the Maintainers arrive, they will try to make the necessary repairs and return the elevator to service. If a repair cannot be made immediately, the reason for the elevator outage and an anticipated repair time is reported back to the Control Desk and Maintainers put up signage at both landings of the inoperable elevator advising customers of the temporary outage and the estimated return to service time. As soon as possible thereafter, Maintainers make the necessary repairs and return it to service. (56.1 ¶¶ 50-51.)
For the period from January 1, 2014 through June 30, 2018, Dr. Salzberg determined that median response time for an elevator repair crew was just under an hour, and typically about three hours pass between the time an unplanned outage is reported and when the elevator is returned to operation. Those three hours include the response time, i.e., the time it takes for the Maintainer or crew to arrive at the elevator for repairs. About 95% of repairs are completed in less than 24 hours. (56.1 ¶ 51.)
i. Outage Notifications to Customers When the existence of an outage has been confirmed to the Control Desk, information is automatically and instantaneously fed to the MTA’s website from the EERMS database, to inform customers that the elevator is out of service. Until a maintainer arrives on scene and diagnoses the problem, or determines the elevator is running, the website shows the elevator as being “Under Investigation.” The website also provides an estimated time when the elevator will
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be returned to service. If an elevator cannot be returned to service during the initial visit, the website status will be changed to “Repair.” The estimated return time may also be updated. When the elevator is returned to service, the website is updated to reflect that. (56.1 ¶¶ 53-55.)
The MTA elevator website also shows elevators that are or will be out of service for planned work, such as preventative maintenance, scheduled repairs, and capital replacement. When these activities are planned, the MTA website also reports upcoming scheduled outages and provides an anticipated return to service date and time. (56.1 ¶¶ 56-57.)
Elevator status information is also available through the MTA’s cell phone application, MYmta. Through either the MTA website or MYmta, customers can register to receive notifications of elevator outages through email or text message. (56.1 ¶¶ 58-59.)
i. Anticipated Outages When it is known and anticipated that an elevator will need to be taken out of service, this information is available on the MTA website and MYmta app. (56.1 ¶ 60.) NYCT also makes efforts to avoid outages that might interfere with customers’ use of an elevator to the greatest extent possible. When an elevator outage is proposed, the Office of ADA Compliance meets to discuss the impact of the proposed outage on subway customers, and to evaluate what communications channels should be deployed to notify subway customers of the planned outage and what, if any, actions should be taken to mitigate the effects of the outage. (56.1 ¶¶ 61-62.) At least two weeks in advance, posters about the outage are placed in prominent locations in the affected station, as well as in other stations along the same subway line. The posters give alternative accessible routings to bypass the outage. These alternatives may include the use of other nearby accessible stations or the use of nearby buses. The poster also states how to contact NYCT for help with travel directions. Depending on the nature and length of the planned
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outage, announcements may also be made over the public address system in affected subway stations, or on board trains on affected subway lines. (56.1 ¶¶ 63-64.)
E. Options for Customers When There Are Elevator Outages Customers can use the TripPlanner+ tool on the MTA website or MYmta app to check elevator status before beginning a trip, to find an accessible route to their destination. TripPlanner+ incorporates current real-time elevator outage information into its routing function so that customers are not directed to stations where an elevator is inoperable. A customer can also call 511, the MTA’s customer assistance line, before beginning a trip to check on elevator status and request help in planning an accessible itinerary. (56.1 ¶¶ 65-66.) If a customer encounters an elevator outage during a trip, the customer has several options. If the customer has a cell phone, they can use the MTA website, MYmta app, or call 511 to get re-routing information. Customers can also use the Help Point intercoms located on every platform to reach the same customer service representatives who staff the 511 call center, in order to receive re-routing information. (56.1 ¶ 67.) NYCT is also installing permanent signage at each elevator which identifies alternative accessible routes that are available in the event of an outage, as well as how to contact NYCT for assistance. (56.1 ¶ 68.) Customers can also seek out station personnel for assistance and directions to reach their destination in the event of an outage. Station personnel have been trained on how to courteously interact with all customers, how to help them re-route their trip to the next accessible station, and on the specific NYCT policy regarding wheelchair users who require assistance to exit a station. (56.1 ¶¶ 69-70.) The alternative travel directions often include using NYCT’s bus network, which is fully accessible, to reach the customer’s destination. (56.1 ¶ 71.)
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F. NYCT’s Dedication to the Station Environment Operating protocols call for each NYCT-operated elevator to be visited by a station supervisor at least once during each 8-hour tour, and for the station supervisors to visit each privately-operated elevator twice per tour. (56.1 ¶¶ 72-73.) If a report is received that an elevator has been fouled or is otherwise unclean, a station cleaner will be dispatched to that elevator as soon as possible, regardless of when the elevator was next scheduled to be cleaned. Station cleaners are also trained to immediately notify supervision if they encounter an elevator that is out of service. (56.1 ¶¶ 74-75.) III. SUMMARY JUDGMENT STANDARD Summary judgment is appropriate where there is no genuine issue of material fact and the undisputed facts warrant judgment for the moving party as a matter of law. F.R.C.P. 56(c). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Finally, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “To withstand a summary judgment motion, sufficient evidence must exist upon which a reasonable jury could return a verdict for the nonmovant.” Gonzalez v. Wright, 665 F. Supp. 2d 334, 346 (S.D.N.Y. 2009) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Moreover, the burden is on the Plaintiffs to prove that NYCT has violated their rights under the ADA. See Martinelli v. Bridgeport Roman Catholic Diocesan Corp., 196 F.3d 409, 428 (“In general, the law places the burden of proof on the party that asserts a contention and seeks to benefit from it.”).
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IV. ARGUMENT A. Statutory and Regulatory Framework 1. The Americans with Disabilities Act and Its Enacting Regulations Title II of the ADA provides that “no qualified individual with a disability shall, by
reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. In order to sue under this statute, a plaintiff must show that a public entity has failed to provide “meaningful access” to its benefits, programs, or services. Disabled in Action v. Bd. of Elections. 752 F.3d 189, 198-99 (2d Cir. 2014).
Part A of Title II applies to public entities generally, while Part B applies to entities providing public transportation specifically. With respect to existing transportation facilities, Part B provides that “it shall be considered discrimination . . . for a public entity to fail to operate a designated public transportation program or activity conducted in such facilities so that, when viewed in the entirety, the program or activity is readily accessible to and usable by individuals with disabilities.” 42 U.S.C. § 12148(a)(1).
Plaintiffs have also brought claims under the Rehab Act, which provides in relevant part: “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.” 29 U.S.C. § 794(a). Rehab Act claims are treated as coextensive with ADA claims, and we will treat them as such in this brief. See, Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003).
2. The ADA Regulations: DOT vs. DOJ Both the Department of Justice (“DOJ”) and the Department of Transportation (“DOT”) have promulgated regulations pursuant to the ADA: the DOJ has authority to regulate Part A of
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Title II, pertaining to public entities generally, and the DOT has authority to regulate Part B, pertaining to public transportation. See 42 U.S.C. §§ 12134 (Part A, regulated by the Attorney General); 12149 (Part B, regulated by the Secretary of Transportation).
The DOT implementing regulations, set forth at 49 C.F.R. Part 37, apply specifically to transportation services for individuals with disabilities. The DOJ’s implementing regulations, at 28 C.F.R. Part 35, apply more generally to public entities, and have an explicit carve-out for public transportation: “To the extent that public transportation services, programs, and activities of public entities are covered by subtitle B of title II of the ADA (42 U.S.C. 12141), they are not subject to the requirements of this part.” 28 C.F.R. § 35.102; see also 42 U.S.C. § 12134(a) (specifically prohibiting the DOJ from regulating “any matter within the scope of the authority of the Secretary of Transportation”). The DOT regulations recognize that there may be some overlap between the two sets of regulations, and instruct that the DOT regulations take priority. See, 49 C.F.R. § 37.21(c). (“Entities to which this part applies also may be subject to ADA regulations of the Department of Justice . . . The provisions of this part shall be interpreted in a manner that will make them consistent with applicable Department of Justice regulations. In any case of apparent inconsistency, the provisions of this part shall prevail.”)
3. The ADA Regulations: General Obligation of Accessibility Both sets of regulations impose a general obligation on public entities to ensure accessibility for persons with disabilities. The DOJ regulation provides: “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). The analogous DOT regulation similarly provides: “A public entity shall operate a designated public transportation program or activity conducted in an existing facility so that,
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when viewed in its entirety, the program or activity is readily accessible to and usable by individuals with disabilities.” 49 C.F.R. § 37.61(a).
4. The ADA Regulations: Obligation to Maintain and Repair Both sets of regulations address the obligation to maintain and repair “accessible features,” such as elevators and bus lifts, while contemplating that a certain number of outages are to be expected as a matter of course. The DOJ regulations provide: “A public entity shall maintain in operable working condition those features of facilities and equipment that are required to be readily accessible to and usable by persons with disabilities by the Act or this part,” and further, that “[t]his section does not prohibit isolated or temporary interruptions in service or access due to maintenance or repairs.” 28 C.F.R. § 35.133(a)-(b). The DOT regulations go further: in addition to requiring that accessibility features be maintained in “operative condition,” there is a requirement that they be “repaired promptly if they are damaged or out of order,” and that in the event of an outage, “the entity shall take reasonable steps to accommodate individuals with disabilities who would otherwise use the feature.” 49 C.F.R. § 37.161(a)-(b). Appendix D to Part 37 illustrates this “accommodation” requirement: “For example, when a rail system discovers that an elevator is out of order, blocking access to one of its stations, it could accommodate users of the station by announcing the problem at other stations to alert passengers and offer accessible shuttle bus service around the temporarily inaccessible station.” 49 C.F.R. § Pt. 37.161, App. D.
5. The Rehabilitation Act and its Enacting Regulations Plaintiffs also cite the DOT regulations promulgated pursuant to the Rehab Act, which provide: “No qualified person with a disability shall, solely by reason of his disability, be excluded from participation in, be denied the benefits of, or otherwise be subjected to
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discrimination under any program or activity that receives Federal financial assistance administered by the Department of Transportation.” 49 C.F.R. § 27.7(a).
6. The New York City Human Rights Law The New York City Human Rights Law (“NYCHRL”), which as explained below does not even apply to NYCT, prohibits an owner of a public accommodation to “refuse, withhold from or deny to such person the full and equal enjoyment, on equal terms and conditions, of any of the accommodations, advantages, services, facilities or privileges of the place or provider of public accommodation.” N.Y.C. Admin. Code § 8-107(4)(a)(1)(a). The NYCHRL requires that the court conduct “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). Where, however, there is no difference between the analysis required by the NYCHRL and the analysis required by the federal anti-discrimination laws, the result under the federal and city laws may be the same. See, e.g., Brooklyn Ctr. for Indep. of the Disabled v. Bloomberg, 980 F. Supp. 2d 588, 642 (S.D.N.Y. 2013); DiCarlo v. Walgreens Boot All., Inc., No. 15-CV-2919 (JPO), 2016 WL 482982, at *2 (S.D.N.Y. Feb. 5, 2016). B. NYCT Is In Compliance With the ADA and its Regulations
1. NYCT’s Elevator Availability is Sufficient to Comply with the ADA While the ADA does not dictate a particular percentage of the time that an accessibility feature must be in service, compliance levels lower than that experienced by riders in connection with NYCT elevators have been deemed adequate under DOT regulations. In Stewart v. New York City Transit Auth., No. 03 Civ. 10329 (RWS), 2007 WL 656993 (S.D.N.Y Feb, 27. 2007), the court was satisfied when NYCT made audible stop announcements for visually-impaired bus riders 70% of the time (improved from 52-55%), especially in light of a commitment by NYCT
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to perform compliance monitoring to bring the rate up to 90%, as well as a commitment to implement automated technology to make stop announcements.
NYCT is in compliance with the ADA and its implementing regulations concerning elevator availability and maintenance. As mentioned above, neither the statute nor regulations prescribe a particular level of availability. NYCT’s 96.5% availability (with over 97% availability for the morning and evening rush hour periods) is sufficient to meet the requirement that accessible features be maintained in “operable working condition” (28 C.F.R. § 35.133(a)), or “operative condition” (49 C.F.R. § 37.161(a)).3 While these numbers do not reach the 100% availability figure demanded by the Plaintiffs, the regulations do not require perfection – and with the preventative maintenance required to keep the elevators operating, which Plaintiffs agree is necessary, NYCT could never reach more than about 99% availability.
2. NYCT’s Mitigation Efforts When Elevators Go Out of Service Meet the Requirements of the ADA
The DOT regulations require that “[w]hen an accessibility feature is out of order, the entity shall take reasonable steps to accommodate individuals with disabilities who would otherwise use the feature.” 49 C.F.R. § 37.161(b). Examples of accommodations provided in the DOT’s Appendix D include “announcing the problem at other stations to alert passengers” and “accessible shuttle bus service around the temporarily inaccessible station.” 49 C.F.R. § Pt. 37, App. D. NYCT provides these accommodations in a number of ways. NYCT announces elevator outages on its website and app, Help Points and on signage at stations (and, depending on the outage, at other stations as well). It also provides information to allow customers to identify alternative subway routes if an unexpected outage occurs, through the above methods as
3 Nor do Plaintiffs provide any basis on which the Court could conclude that the 94.9% elevator availability observed by their expert, David Rishel, is insufficient to comply with NYCT’s obligation under the ADA to provide meaningful access to NYCT’s transportation services.
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well as through permanent signage on each elevator and from station personnel and the 511 call center. NYCT takes proactive steps to mitigate the effect of necessary maintenance and inspections on riders, performing 97% of preventative maintenance and inspections between the hours of 10 p.m. and 6 a.m., when ridership is much lower.
Significantly, due to the extensive and interconnected nature of the subway system, an elevator outage does not necessarily mean that a customer who requires elevators cannot complete a trip in the event of an elevator outage. There is often more than one route available to get the customer from one point to another. For example, many stations have multiple platforms serving different lines. This enables a customer dependent on an elevator to one platform to access an alternative platform serving a different line which may go to the desired destination station or a nearby station. Customers may also ride past a station with an out-ofservice elevator to the next ADA station and loop back to the unaffected platform at the desired destination station. While this imposes an inconvenience, Dr. Salzberg found that, on average, having to take an alternative itinerary would add 10 minutes to a trip. Additionally, the entire NYCT bus fleet is accessible and can be utilized when elevators are out of service. (56.1 ¶¶ 4, 76-78.)
Interruptions in service due to non-working elevators occur because elevators are complex machines and the NYCT environment is particularly harsh, given its 24-hour schedule, extreme temperature fluctuations, and heavy usage. The actual outage data, which shows that the elevators are available 96.5% of the time on average (97% on weekdays) with a median availability of 98% (and 98.7% during weekdays), provides the important context in which to understand the Plaintiffs’ anecdotal evidence. But when an elevator is out, NYCT has a
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maintenance program that results in prompt repairs, so that most elevators will back in service within a few hours, and the vast majority by the next day.
3. NYCT Promptly Repairs Elevators When They Go Out of Service The DOT regulation requires that “[a]ccessibility features shall be repaired promptly if they are damaged or out of order.” 49 C.F.R. § 37.161(b). There is no definition of “promptly” in the regulation, but NYCT’s repairs certainly qualify as prompt. On average, elevator Maintainers arrive at the elevator within approximately 1.5-2 hours after the outage is first opened. The median response time is approximately one hour. The median repair time for an unexpected outage is about three hours after the initial report is logged. C. The Program or Activity Provided by New York City Transit is Compliant with
the ADA as a Whole The ADA and its implementing regulations require that a “program or activity” be “viewed in the entirety” when analyzing whether it is “readily accessible to and usable by individuals with disabilities.” 42 U.S.C. § 12148(a)(1); see also 28 C.F.R. § 35.150(a) The Ninth Circuit recently explained that the DOJ’s regulatory language “when viewed in its entirety” encompasses more than any one given facility, in a suit over the accessibility of municipal libraries, parks, pools, and public rights-of-way. In Kirola v. City & Cnty. of San Francisco, 860 F.3d 1164 (9th Cir. 2017) the plaintiff class challenged the adequacy of curb ramps on public sidewalks, and the physical accessibility of the city’s 28 public libraries, nine public swimming pools, and 220 public parks. The Ninth Circuit explained that program access under the DOJ regulations was more sweeping than any one particular facility: Under 28 C.F.R. § 35.150, the City is obligated to operate each existing facility so as to ensure ‘program access.’ Program access does not require that each existing facility be disability accessible. Rather, it requires that each ‘program’ offered by the City, when viewed in its entirety, be ‘readily accessible to and usable by individuals with disabilities.’
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Id. at 1173-74 (citations omitted). Applying this broad view of accessible programming, the court ruled that missing or damaged curb ramps on a sidewalk did not constitute programmatic inaccessibility because the city also provided public transportation and paratransit services along the same right-of-way. Id. at 1183. It applied the same logic to complaints about inaccessible parks, i.e, that one particular park is not accessible does not mean that the entire park system is inaccessible when viewed as a whole, because “program access does not operate at such a narrow level of review,” and other parks in the system were accessible. Id. at 1184.
Other courts have employed similar logic in broadly defining what constitutes program accessibility “in its entirety.” See, e.g., Daubert v. Lindsay Unified Sch. Dist., 760 F.3d 982 (9th Cir. 2014) (accessible seating area at school stadium provided sufficient program accessibility despite bleachers being inaccessible); Greer v. Richardson Indep. Sch. Dist., 472 F. App’x 287 (5th Cir. 2012) (same); Parker v. Universidad de P.R., 225 F.3d 1, 6-7 (1st Cir. 2000) (ADA requires only one route to an event venue to be accessible, rather than every possible route).
The proper system against which the subway elevator service must be judged is the entire system, inclusive of subways, buses, and paratransit, not merely the subway system. In fact, the statutory purpose of NYCT is “ . . . the operation of transit facilities in accordance with the provisions of [the Public Authorities Law] . . . .” N.Y. Pub. Auth. L. § 1202(1). Transit facilities include both the subways and buses. Id. Looking at the NYCT transportation system as a whole, the outage of elevators at the rate shown by the data is not enough to prove that the system is in violation of the ADA.
D. “Operative Condition” and Alternative Means of Travel Courts have taken a holistic view when assessing what it means to keep accessibility features in “operative condition,” looking at whether an outage is “isolated,” as dictated by the
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DOJ and DOT regulations, or whether the problem is more wide-spread. And in reaching a determination as to whether the elevators are systemically in operative condition, courts may also weigh the alternatives to travel that may be necessitated by an out of service elevator.
For example, in Foley v. City of Lafayette, a passenger who used a wheelchair was unable to leave a train station after disembarking from a train due to an elevator outage caused by very cold weather. The Plaintiff alleged violations of the ADA, Rehab Act, and DOT regulations stemming from the failure to maintain the station’s elevators in operative condition or promptly repair them. 359 F.3d 925 (7th Cir. 2004). The Seventh Circuit interpreted the DOT regulations to allow the operating agency considerable leeway in applying them:
[T]he only way to apply 49 C.F.R. § 37.161 is to consider the unique circumstances inherent in any particular transportation service site. In other words, there are no universal definitions in the regulations for what is required to “maintain in operative condition” the accessibility features, to repair “promptly” such features, or to take “reasonable steps” to accommodate when the features are not accessible. The extent of inaccessibility covered by the terms “isolated or temporary” in 49 C.F.R. § 37.161 is likewise unclear and only determinable by considering the unique circumstances of the case. Id. at 929. The court dismissed the claim, because all appropriate measures had been taken by the public operator of the train station. The court was satisfied that “[n]othing in the record indicates frequent denial of access to disabled persons or a policy that neglects elevator maintenance.” Id. at 929. NYCT’s subways run 24 hours per day. There is no “downtime” during which repairs and maintenance can be performed, although every effort is made to conduct planned maintenance overnight. Unlike other systems, NYCT’s elevator availability is measured on a 24 hour basis. Any attempt by Plaintiffs’ to compare NYCT’s data to other systems is inapposite. In most cases, where a subway stop is rendered inaccessible due to an elevator outage, a disabled customer may be able to proceed to the next ADA accessible station and loop back to
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his or her destination. There are also some areas in New York City where, if one station is inaccessible, there is another accessible station in the vicinity. NYCT also takes “reasonable steps” in the form of parallel accessible bus service. Some stations have elevator redundancy (i.e., more than one elevator to get to a platform or mezzanine). NYCT’s subway system is extraordinarily extensive, so that an elevator failure does not necessarily prevent the disabled customer from using the system to get to his or her destination. Some stations have multiple lines with different platforms separately served by different elevators.
This widespread availability of alternative routes to accommodate customers warrants the dismissal of Plaintiffs suit. See Williams v. Chicago Transit Auth., No. 16 C 9072, 2017 WL 4467456 (N.D. Ill. Sept. 30 2017). In Williams, the court considered the case of a wheelchair user who encountered an out of service elevator at one train station, and was forced to travel to the next station and loop back so that he could use the functioning elevator on the other side of the platform. The court ruled that the plaintiff had failed to state a claim because an isolated outage, which was easily circumvented by riding to the next stop and looping back, did not constitute a violation of the ADA. Id. at *3. This is a feature characteristic of NYCT’s subway system. Although a passenger might be inconvenienced by the delay in having to modify his or her route by proceeding to another station and looping back, with that scenario available, the Plaintiffs cannot show that the occasional occurrence of isolated elevator outages renders the entire system not in “operative condition.” Indeed, the Williams court specifically characterized the extra ride time as “a reasonable response to an isolated elevator outage.” Id.
The plaintiffs in Martin v. Metropolitan Atlanta Rapid Transit Authority, 225 F. Supp. 2d 1362 (N.D. Ga. 2002), like the plaintiffs in this case, alleged widespread elevator outages in the MARTA train system. The court, applying the DOT’s regulation at 49 C.F.R. § 37.161
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regarding maintenance of accessible features, found that MARTA’s elevator service complied with the ADA. MARTA provided evidence that repairs were typically made within two hours of a service call, and that overall elevator availability was 99%. Id. at 1370. The court ruled that although “a pattern of unreliable elevator service constitutes a violation of the ADA,” the evidence presented was “insufficient to demonstrate a systemic problem . . . . It is simply a fact of life that elevators will break down on occasion.” Id. at 1380. The court also found that MARTA’s maintenance policies were adequate, and that there had not been “a wholesale or systemic failure to follow its own policies and procedures.” Id. NYCT’s system measures up well against MARTA’s. NYCT has an entire division devoted to elevators and escalators, and an extensive preventive maintenance and repair program. NYCT’s median repair time for an unexpected outage is about three hours – and on average, elevator Maintainers arrive at the elevator within 1.5 to 2 hours after the outage is first opened in EERMS. Further, unlike MARTA, NYCT provides a robust set of tools for travelers to access outage information in realtime by internet, smartphone app, notifications, telephone, Help Points, and in person, allowing travelers to reroute their trip, sometimes even before they encounter the outage in person.
E. NYCT Appropriately Cleans Its Elevators While Plaintiffs allege that “[e]ven when subway elevators are in working order, Defendants’ failure to maintain and implement proper inspection and cleaning procedures at subway elevators has limited their usability for riders with mobility disabilities” (Compl. at ¶ 85), the evidence is the opposite. NYCT has an inspection and cleaning schedule for its elevators, which includes multiple visits per day by NYCT station cleaners. If an elevator is reported to need additional cleaning, a cleaner is sent to that elevator as soon as possible, regardless of when the elevator is next scheduled to be cleaned. There is no evidence that NYCT
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neglects the elevators, which are open to the public 24 hours a day, seven days a week. It is unfortunate that elevators sometimes become soiled by users, but NYCT has procedures in place that result in the elevators being cleaned regularly and as soon as possible after NYCT discovers they are in need of cleaning.
Defendants are entitled to summary judgment on Plaintiffs’ federal claims for the simple reason that Plaintiffs have no evidence to establish that Transit Defendants are not in compliance with the ADA or Rehab Act.
F. The New York City Human Rights Law Does Not Apply to NYCT Plaintiffs’ NYCHRL claim fails because Public Authorities Law § 1266(8) preempts the application of the NYCHRL here. Under the Public Authorities Law, the NYCT has plenary control over the subway system, including the power to “exercise all requisite and necessary authority to manage, control and direct the maintenance and operation of transit facilities.” Pub. Auth. § 1204(15). Section 1266(8) expressly (i) bars any municipality, including New York City, from asserting “jurisdiction” over any facilities of the MTA or NYCT, and (ii) preempts any local law “conflicting” with the Public Authorities Law, unless those laws relate to facilities that are devoted to “purposes other than transportation or transit purposes.” See also Pub. Auth. §§ 1261(1), 1263 (defining “authority” as the MTA).
The subway stations at issue in this case are facilities devoted to “transportation or transit purposes”. Moreover, Plaintiffs seek to use the NYCHRL to regulate the manner in which NYCT maintains and operates the elevators at its transit facilities, which undoubtedly interferes with its statutory mandate to “manage, control and direct the maintenance and operation of [its] facilities.” Where, as here, plaintiffs have attempted to apply local laws in such a way as to interfere with Defendants’ core transportation functions, courts have interpreted §
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1266(8) to bar suit. Accordingly, Plaintiffs’ NYCHRL claim is preempted. See, e.g., Penny Port, N.Y.L.J., Sept. 27, 1999 at 30 (City smoking regulations could not be applied within Grand Central restaurant); CBS Outdoor, Inc. v. City of New York, 50 Misc. 3d 283, 290-95 (Sup. Ct. N.Y. Cnty. 2015) (City zoning laws did not apply to revenue-producing billboards on MTA property because doing so would interfere with one of MTA’s statutory purposes: generating revenue for transit); People v. Metro-North Commuter R.R. Co., 132 Misc. 2d 1072, 1073 (Crim. Ct. Bronx Cnty. 1986) (City code provisions regulating fuel truck operations on City streets conflicted with MTA subsidiary’s statutory power to control and direct the operation of transportation facilities and equipment).
G. Defendants Are In Compliance With the NYCHRL Even assuming the NYCHRL applies to Defendants, the NYCHRL claim must be dismissed. Plaintiffs’ claims under the NYCHRL are the same as their claims under the federal anti-discrimination laws: that Defendants are discriminating against the class by failing to make reasonable accommodations (i.e. working elevators) at subway stations, thereby preventing the Plaintiffs from using the subway. Their NYCHRL claim, however, fails for the same reasons their federal antidiscrimination claims: The elevators in the subway system work nearly all of the time, and when they are out of service for planned maintenance or repair, alternate accommodations are available to passengers. In a recent case, Judge Román held that plaintiffs failed to state a NYCHRL claim when they alleged that the ride-sharing service Lyft offered insufficient wheelchair accessible vehicles in New York City, creating long wait times for individuals requiring such vehicles. Lowell v. Lyft, Inc., 352 F. Supp. 3d 248, 262-263 (S.D.N.Y. 2018). The court dismissed the claim, finding that plaintiffs had not plausibly alleged a NYCHRL violation because
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“[t]here is no case law to indicate that extended wait times for a public accommodation is a NYCHRL violation. While it is a NYCHRL violation to entirely exclude a person with a disability from accessing a public accommodation . . . that is not the situation before the Court. Defendant offers, albeit in a small number, [wheelchair accessible vehicles] in New York City.”

Id. at 263 (citation omitted).

Applying Judge Román’s analysis to this case, there is no NYCHRL violation. While a

customer with a mobility disability may need to wait for an elevator to come back to service, or

travel to a nearby station to take a different elevator, or use a bus instead of a subway to get to

the customer’s destination, customers with mobility disabilities are not precluded from using

NYCT’s public accommodation (i.e. transportation services in the NYC metropolitan region).

Moreover, in the vast majority of instances, a customer encountering an elevator outage – even

an unexpected outage – would be able to reroute their trip. While this is certainly an

inconvenience, which NYCT tries to minimize, this is not a violation of the NYCHRL.

V. CONCLUSION

For the reasons stated above, Defendants respectfully request that this Court dismiss the

claims against them in their entirety, and that the Court grant such other and further relief as it

deems just and proper.

Dated: New York, New York

August 9, 2019

By:

Ira J. Lipton (IL-4835) Helene R. Hechtkopf (HH-7402) Steven M. Silverberg (SS-5064) Miriam J. Manber (MM-0263)

HOGUET NEWMAN
REGAL & KENNEY, LLP 60 East 42nd Street, 48th Floor
New York, NY 10165
Phone: 212-689-8808

Attorneys for Transit Defendants
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 Case 1:17-cv-02990-GBD-DCF Document 193 Filed 11/14/19 Page 1 of 13

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

CENTER FOR INDEPENDENCE OF THE DISABLED, NEW YORK, et al.,

Plaintiffs,

-against-

METROPOLITAN TRANSPORTATION AUTHORITY, et al.,

No. 17-cv-02990 (GBD)
PLAINTIFFS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW

Defendants.

FINDINGS OF FACT A. New York City Subway System Elevators Break Down Frequently and
Unexpectedly. 1. By the Metropolitan Transportation Authority’s own data and admission, the elevators that provide access to the New York City (“the City”) subway system for the certified class in this civil-rights lawsuit are unavailable, on average, at least 3.5% of the time.1 Defendants’ Statement of Material Undisputed Facts Pursuant to Local rule 56.1, ECF. No. 161 (“Defs. SOF”) at ¶ 32. 2. Furthermore, in order to successfully complete one subway trip in the system, elevator-dependent passengers will typically require four or more elevators, and because the vast majority of Accessibility Elevators are not redundant, any one inoperable elevator will result in a failed trip. Pls.’ Local Rule 56.1 Statement of Undisputed Facts, ECF. No. 150 (“Pl. SOF”) ¶¶ 8– 10.

1 The accuracy of the MTA’s statistical elevator data is disputed by Plaintiffs. Because the data reporting system is old and outdated, the MTA’s outage recording system relies on control desk workers to input every outage into its outage database which necessarily introduces a lag time and the possibility of human error with every recorded elevator outage. Plaintiffs’ Local Rule 56.1 Statement of Undisputed Facts, ECF No. 150, at ¶¶ 99–107.
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3. As such, and assuming arguendo that MTA’s 96.5% average uptime percentage is accurate, it still must be understood in the context by which an elevator-dependent passenger riding from point A to point B would be impacted.
4. Plaintiffs’ Expert Andrew Schwarz undertook such a statistical analysis using one year of recent MTA data collected from swipes through accessible fare gates from routes between Manhattan and the outer boroughs during time periods typically considered rush hour. Decl. Michelle Caiola in Support of Plaintiffs’ Opposition to Defendants’ Motion for Summary Judgment, ECF No. 173 (“Caiola Opp. Decl.”), Ex. 27 ¶¶ 7–9.
5. The results indicated that a typical daily commuter reliant on elevators would experience a failed trip about 8-15% of the time. Plaintiffs’ Response to Defendants’ Local Rule 56.1 Statement and Additional Material Facts, ECF No. 177, (“Pl. 56.1 Resp.”) ¶ 93.
6. Moreover, many of the trips analyzed by Mr. Schwarz failed at far higher rates; in some cases, failed trips comprised more than 50% of hypothetical morning or evening commutes. Caiola Opp. Decl., Ex. 27 ¶ 4.
7. Commuter impact can also be surmised from considering 2014-2015 MTA elevator availability data from its Elevator and Escalator Reporting and Maintenance System (“EERMS”) database which shows that on average, more than 12% of elevators were out of service on any given day in this time period and roughly 25 elevator outages per day systemwide. Declaration of Sasha Blair-Goldensohn in Support of Plaintiffs’ Opposition to Defendants’ Summary Judgment Motion, ECF No. 175 (“Blair-Goldensohn Opp. Decl.”) ¶ 8.
8. More recent snapshots of the MTA’s elevator outage status webpage also reveal dozens of elevators out-of-service at any given time. Blair-Goldensohn Opp. Decl. ¶¶ 15–16.
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9. Dr. Salzberg, the MTA’s expert statistician, found that any given elevator in the system had availability of less than 80% in at least one month during the 4.5 years of data he examined. Declaration of Michelle Caiola in Support of Plaintiffs’ Motion for Summary Judgment, ECF No. 163, (“Caiola Decl.”), Ex. 62 at 114:16–117:05.
10. Moreover, Dr. Salzberg also found that 80% of MTA elevator outages are due to unexpected breakdowns as opposed to planned maintenance or scheduled outages. Caiola Decl. Ex. 1 at 3.
11. Plaintiffs’ expert, David Rishel, a nationally recognized accessible transportation management expert, conducted an analysis of down-time for four MTA elevators that he inspected and found that for each elevator, “60% or more of the down-time recorded for these elevators was recorded as ‘Repair.’” Caiola Opp. Decl., Ex. 5 at 41 (noting also that “a high percentage of repair time on elevators is an indication that the elevator has not been well maintained.”).
12. Even when technically operable, MTA elevators are often in such a degraded condition, due to cleanliness issues or inoperable features, as to be functionally unusable. See Caiola Opp. Decl., Ex. 20 at 4 (2019 report by the Manhattan Borough President’s Office finding that 54.3% of surveyed subway elevators were visually unclean and 53.5% had odor problems); Pl. SOF ¶¶ 88–89 (analysis of the MTA ADA Compliance Unit’s inspection reports, finding an average of 2.19 ADA deficiencies per elevator).
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B. The MTA Fails to Take Necessary Action to Address Chronic Elevator Outages. 1. The MTA Has Deficient Maintenance Practices.
13. A May 2017 report by the New York City Comptroller found that only approximately one-fifth of the elevators and escalators in the audit sample received all their scheduled preventative maintenance leading to the conclusion that “[a]s a result of these deficiencies NYCT cannot ensure that its 407 elevators and escalators are presently, and will continue to be, in good operating condition.” Caiola Decl., Ex. 26 at D0001126038, D0001126044.
14. The Comptroller’s findings regarding the MTA’s deficient preventative elevator maintenance are reinforced by Mr. Rishel, who, after conducting comprehensive, hands-on inspections of four MTA subway elevators with an expert elevator mechanic, concluded that while “there is what appears to be a good maintenance program on paper, the extent of deficiencies we encountered and the severity of the deficiencies we identified in our inspections indicates that this maintenance program is not being effectively executed.” Caiola Opp. Decl., Ex. 5 at 7.
15. Defendants admit that if they performed all the preventative maintenance listed in their new, as of October 2018, maintenance protocol, their elevators would be unavailable due to planned maintenance a mere .8% of the time. Def. SOF at ¶ 19.
16. Rishel observed that the MTA addressed recurring issues at each elevator with stopgap measures, if at all, during routine preventative maintenance—such as Elevator and Escalator (“E&E”) maintainers apparently regularly replacing hydraulic fluid rather than fixing leaks. Pl. SOF ¶ 51.
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17. It follows then that an MTA-commissioned study emphasized that “[a] significant proportion of [the MTA’s elevator and escalator equipment] have a high probability of experiencing a corrective maintenance event within the next 2 weeks.” Pl. SOF ¶ 46.
2. The MTA Fails to Ensure Adequate Staffing of Elevator Maintainers. 18. The MTA cannot refute the fact that its elevator and escalator division is insufficiently staffed. As of June 2017, the MTA still had 30 maintainer vacancies in their E&E department, Pl. SOF ¶ 24, and the MTA has put forth no evidence showing this vacancy rate has narrowed. 19. As former MTA E&E Division Chief Antonio Suarez admits, “[t]he primary reason for elevators and escalators being observed out of service is that NYCT is unable to hire all the authorized maintainers in its budget.” Pl. SOF ¶ 24. 20. MTA also fails to ensure that its maintainers have the necessary training and skills needed to effectively maintain and repair elevators, leading to even more unnecessary breakdowns or extended outages. Caiola Decl., Ex. 21 at D0000573746 (February 2017 email from Antonio Suarez stating “[m]any of our maintainers are unable to troubleshoot the equipment and this results in us having to send people back to the equipment time and again”); Caiola Decl., Ex. 20 at D0000573523 (February 2017 email from Antonio Suarez stating “[s]ince we are unable to hire top candidates, repairs are not as effective, equipment breaks down more often and more visits to the equipment are necessary”).
3. The MTA Fails to Replace Outdated Elevators and Equipment such as its Remote Monitoring System.
21. As former MTA E&E Division Chief Antonio Suarez has admitted when discussing the MTA’s elevators, “[w]e continue to add equipment and fail to acknowledge the need to replace it at the end of its useful life.” Pl. SOF ¶ 72.
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22. This lack of investment is apparent from the MTA’s current 2015-2019 Capital Plan, which funds the replacement of just 16 Accessibility elevators2 even though the MTA’s former head of the E&E division recommended that no fewer than 66 such elevators be replaced. Pl. SOF ¶ 65-66.
23. It follows that consultants hired by the MTA concluded that “under the current operational and asset replacement program — it appears there may be adverse impact on both availability and operational cost performance of MTA[.]” Caiola Decl., Ex. 28 at D0000950826.
24. The MTA also cannot effectively utilize its remote monitoring system to accurately inform the public about elevator outages, because as MTA-hired consultant AECOM admitted, the “infrastructure backbone over which Lift-Net operates is in need of overhaul” and has not been modernized in 30 years. Caiola Decl., Ex. 34 at D0002077122–23.;
25. Instead of relying on its outdated monitoring software to automatically notify customers of outages, the MTA instead independently verifies each outage, causing a lag time of up to 45 minutes between when an elevator breaks down and when a passenger can receive notification of that fact. Caiola Decl., Ex. 59 at 80:25–81:04; Caiola Decl., Ex. 49 at 17–18.
2Accessibility elevators are elevators on the path of accessible travel through a station, as opposed to nonAccessibility elevators, which are part of the necessary path of travel through deeply underground stations but which require passengers to take at least one flight of stairs on their path of travel through a station. Pl. SOF ¶ 79.
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4. The MTA’s Preferential Treatment of Non-Accessibility Elevators Also Shows it Could Do Better.
26. In contrast to its neglect for the replacement of Accessibility elevators, supra ¶ 22, the MTA has committed extra funds for the capital replacement of 26 of its 44 nonAccessibility elevators in its 2015-2019 Capital Plan. Pl. SOF ¶ 67.
27. In 2017 the MTA awarded a $12 million contract to outsource the maintenance of 18 of these non-Accessibility elevators to third-party contractors thus circumventing the deficient staffing and training of its in-house maintainers. Supra ¶ ¶18–20; Caiola Decl., Ex. 42 at D113465; Caiola Decl., Ex. 59 at 124:02–12.
28. Moreover, the MTA employs full-time elevator operators in many of their nonAccessibility elevators, ensuring a higher level of cleanliness and operability. Pl. SOF ¶¶ 84–85.
C. The MTA Provides no Accommodations for Class Members Harmed by Routinely Inoperable Elevators.
29. The record reflects that the MTA does virtually nothing to assist passengers routinely stranded by outages.
30. The MTA instead relies on passengers to redirect themselves on alternate MTA Transit, ignoring the inequivalence of its bus system and the fact that in a subway system that is 76% inaccessible, a passenger may have to travel for hours merely to re-route themselves within the system. Pl. 56.1 Resp. ¶¶ 4, 78.
31. Unlike peer subway systems, the MTA has never considered providing shuttle service to customers who are stranded by outages. Pl. SOF ¶ 109, 111.
32. The MTA does not have a regular practice of making announcements about elevator outages on trains or in stations and only makes these announcements for outages scheduled to last longer than three months. Pl. SOF ¶ 108.
D. Class Members Are Harmed by the MTA’s Failures. 7

Case 1:17-cv-02990-GBD-DCF Document 193 Filed 11/14/19 Page 8 of 13
33. The MTA’s deficient elevator maintenance and nonexistent accommodations harm passengers with disabilities who must rely on elevators to access the subway system.
34. Since moving to the City in November 2014 Plaintiff Chris Pangilinan has kept a detailed log of every elevator outage he has encountered while attempting to use the subway to commute to work and for social engagements. Pl. SOF ¶ 105.
35. Despite checking the MTA website before nearly every trip, Mr. Pangilinan has been impacted by outages on 14.9% of all attempted subway trips. Pl. SOF ¶ 106.
36. Plaintiff Sasha Blair-Goldensohn attempts to ride the subway nearly every day to commute to work, pick up his kids from school, and to travel generally throughout the city, but describes the experience as “kind of like a bit of a torment every time you're going to any station and you're in a wheelchair,” due to the frequent and arbitrary outages he encounters at least weekly. Pl. SOF ¶¶ 122–25.
37. Some class members, such as power chair user Monica Bartley, have been deterred from regular reliance on the subway system at all. Pl. SOF ¶ 150.
38. To commute to work, Ms. Bartley instead uses the MTA’s significantly more time-consuming and inflexible paratransit program because after repeatedly encountering unexpectedly inoperable elevators (which can lead to a two-hour detour for her to exit the system) she concluded that she cannot use the subway to reliably travel to work in the same way New Yorkers without disabilities can. Pl. SOF ¶¶ 150–51.
8

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CONCLUSIONS OF LAW A. Federal and local disability law prohibit discrimination against people with
disabilities in public programs, services, and activities. 39. Plaintiffs bring this action for declaratory and injunctive relief pursuant to Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131 et seq.; Section 504 of the Rehabilitation Act of 1973 (“Section 504”), 29 U.S.C. § 794 et seq.; and the New York City Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code § 8-101 et seq. 40. Plaintiffs state a claim under the ADA and Section 504 if they show that (1) they are “qualified individuals” with a disability; (2) that Defendants are subject to these laws; and (3) that Plaintiffs were excluded from participation in or denied the benefits of the services, programs, or activities of the public entity, or were subjected to discrimination by the entity. 42 U.S.C. § 12132; Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003). 41. Discrimination under U.S.C. § 12132 includes the failure to take reasonable measures to eliminate accessibility barriers. Tennessee v. Lane, 541 U.S. 509, 531 (2004) (citing 42 U.S.C. § 12131(2)). 42. Further, people with disabilities must be provided with meaningful access to public services, Alexander v. Choate, 469 U.S. 287, 301 (1985), and they can be deprived of meaningful access due to a “public entity's failure to modify existing facilities and practices.” Disabled in Action v. Bd. of Elections in City of N.Y., 752 F.3d 197 (2d Cir. 2014). 43. Partial or impeded access is not sufficiently meaningful access. See Brooklyn Ctr. for Indep. of Disabled v. Bloomberg, 980 F. Supp. 2d 588, 648 (where a facility’s ramps are so steep that they become an impediment or its bathrooms are unfit for use by individuals with mobility disabilities, the facility is not “readily accessible” regardless of whether the individual manages to enter) (citation omitted)
9

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44. Furthermore, “[e]ach [access] barrier is a building block for a finding that the [program], viewed in its entirety, is not readily accessible. Brown v. Cnty. of Nassau, 736 F. Supp. 2d 602, 616-17 (E.D.N.Y. 2010),
45. The MTA’s liability is broader under the NYCHRL than its federal counterparts, as “state and federal civil rights statutes can serve only as a floor below which the [NYCHRL] cannot fall.” Ya Chen Chen v. City Univ. of N.Y., 805 F.3d 59, 75 (2d Cir. 2015).
46. It is undisputed that Plaintiffs are qualified individuals with disabilities. Caiola Decl., Ex. 57 at 3.
47. The MTA itself admits that its subway system is a relevant program subjecting Defendants to the ADA and Section 504. Caiola Decl. Ex. 57 at 3.
B. Defendants’ failure to maintain their elevators results in a denial of meaningful access.
48. Under the ADA’s implementing regulations a public transportation entity must maintain the elevators “that are required to make . . . facilities readily accessible” in “operative condition.” 49 C.F.R. § 37.161(a).
49. In addition to mandating that inoperable “[a]ccessibility features shall be repaired promptly,” ADA regulations further requires transportation entities to take “reasonable steps to accommodate individuals with disabilities who would otherwise use the [inoperable] feature.” 49 C.F.R. 37.161(b).
50. Any pattern of unreliable elevator service, meaning more than isolated or temporary interruptions in service, see 49 C.F.R. § 37.161(a)-(c), is evidence of ADA discrimination under 42 U.S.C. § 12132.
10

Case 1:17-cv-02990-GBD-DCF Document 193 Filed 11/14/19 Page 11 of 13
51. The MTA admits that its elevators are inoperable, on average, 3.5% of the time and, if it performed all its planned maintenance, that planned work would only account for .8% unavailability. Supra ¶¶ 1, 14.
52. Because trips typically require four or more elevators it is undisputed that class members will be impacted on far more than 3.5% of trips, as Mr. Schwarz concluded in finding that a typical daily commuter would experience a failed trip 8–15% of the time, or approximately once a week if only commuting. Supra ¶¶ 1, 4.
53. Undisputed evidence provides that the MTA could, and does not, do more to ensure that its elevators are sufficiently available to customers. The MTA does not follow its own maintenance protocol, replace outdated equipment, or even hire and train the staff as needed to provide adequate maintenance and service. Supra ¶¶ 12-15, 17-19, 20-23.
54. This is highlighted by the fact that the MTA does not provide its Accessibility elevators with the equal care and concern it affords non-Accessibility elevators. Supra ¶¶ 25-27.
55. The MTA’s “pattern of neglected maintenance” is the direct cause of pervasive problems with elevators, limiting everyday access for people with disabilities to an unacceptable degree. Cupolo v. Bay Area Rapid Transit, 5 F. Supp. 2d 1078, 1083–85.
56. Seemingly high uptime elevator percentages do not insulate a transit provider from liability if a pattern of neglect is found. See e.g., Cupolo, 5 F. Supp. at 1080–85 (granting plaintiffs’ preliminary injunction despite system-wide elevator availability of 97% because evidence of “pervasive problems” included 76 entrapments over 14 months, “elevators that pose a threat of catastrophic failure, [because of] pooling of hydraulic oil at the bottom of elevator shafts,” and “persistent problems in performing adequate maintenance on [BART’s] elevators”).
C. Defendants’ failure to provide any accommodations during the resulting frequent outages is a further denial of meaningful access to the class.
11

Case 1:17-cv-02990-GBD-DCF Document 193 Filed 11/14/19 Page 12 of 13
57. Rather than take “reasonable steps to accommodate individuals with disabilities who would otherwise use the [MTA’s inoperable] feature,” 49 C.F.R. 37.161(b), the MTA essentially does nothing to accommodate passengers who are routinely stranded by outages.
58. Far from meeting its requirement to provide accommodations that it knows “may be necessary” to afford plaintiff an equal opportunity to use its service, see Sinisgallo v. Town of Islip Hous. Auth., 865 F. Supp. 2d 307, 336 (E.D.N.Y. 2012), the MTA instead relies on impacted passengers to re-route themselves on the limited, and often inferior, forms of accessible NYCT transit.
59. However, “the opportunity to [participate in a public benefit] at some time and in some way—would render meaningless the mandate that public entities may not afford [] persons with disabilities services that are not equal to that afforded others.” Disabled in Action, 752 F.3d at 199. The MTA cannot rely on its bus system to shirk its duty to actively accommodate passengers who are routinely stranded by outages.
D. Class members are harmed by the MTA’s elevator maintenance failures. 60. When faced with the relevant question of “whether those with disabilities are as a practical matter able to access benefits to which they are legally entitled,” Henrietta D. v. Bloomberg, 331 F.3d 261, 273 (2d Cir. 2003), the undisputed record in this case establishes that Plaintiffs cannot meaningfully access the subway system in the way they are entitled to do so. 61. The undisputed evidence of every class member who provided testimony in this case, Pl. SOF ¶¶ 122–61, and Mr. Schwarz’s finding that a typical daily commuter on the examined routes would experience a failed trip 8–15% of the time or approximately once per week provide that class members are denied meaningful access as a direct result of Defendants’ failure to maintain elevators or provide accommodations during outages.
12

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E. Defendants’ post-litigation, halfhearted attempts at legal compliance cannot establish that they provide meaningful access.
62. Mere policy changes that can be reversed at any time do not deprive this Court from holding that Defendants deny meaningful access here. See City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982).
63. Courts are particularly reluctant to accept defendants’ arguments when they involve supposedly rectified accessibility barriers. See, e.g.,Cupolo, 5 F. Supp. 2d at 1084 (rejecting defendant’s argument that it had taken initiatives to rectify BART’s lacking elevator maintenance program because “the programs that BART is instituting now may improve the reliability of BART's elevators in the long run, but the record does not indicate that the problems with BART elevator service have already been solved”).
64. Most of the post-litigation efforts the MTA claims to now be taking directly address the Plaintiffs’ allegations, giving credence to Plaintiffs’ claims that the practices and policies in place at the time of filing were inadequate.
65. Moreover, recent policy changes do not moot this suit, as these policies could be reversed at any time and there is little proof here that these policies are being effectively implemented.

Dated:

IT IS SO ORDERED.

_____________________________________ Hon. George B. Daniels U.S. District Judge

13

 
 CASREF,ECF
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:17−cv−02990−GBD−DCF

Center for Independence of the Disabled, New York et al v. Metropolitan Transportation Authority et al Assigned to: Judge George B. Daniels Referred to: Magistrate Judge Debra C. Freeman Cause: 42:12131 Americans with Disabilities Act of 1990
Plaintiff

Date Filed: 04/25/2017 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question

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

represented by Maia Beth Goodell Disability Rights Advocates 655 Third Avenue, 14th Floor New York, NY 10017 (212) 644−8644 Fax: (212) 644−8636 Email: mgoodell@dralegal.org TERMINATED: 11/21/2019 LEAD ATTORNEY

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

Emily Seelenfreund Disability Rights Advocates (NYC) 655 Third Avenue, 14th Floor New York, NY 10017 (973)−986−2350 Email: eseelenfreund@dralegal.org ATTORNEY TO BE NOTICED

Jelena Kolic Disability Rights Advocates 10 South LaSalle Street, 18th Fl. Chicago, IL 60613 312−559−4660 Ext. 7560 Fax: 212−644−8636 Email: jkolic@dralegal.org ATTORNEY TO BE NOTICED

Rebecca Juliet Rodgers Disability Rights Advocates (NYC) 655 Third Avenue, 14th Floor New York, NY 10017 212−644−8644 Email: rrodgers@dralegal.org ATTORNEY TO BE NOTICED

Seth Emmanuel Packrone Disability Rights Advocates 655 Third Avenue 14th Floor New York, NY 10017 (212) 644−8644 Fax: 212−644−8636

Plaintiff
Brooklyn Center for Independence of the Disabled a nonprofit organization

Email: spackrone@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 ATTORNEY TO BE NOTICED
Stuart John Seaborn Disabilities Right Advocates 2001 Center Street, 4th Floor Berkely, CA 94704 (510) 665−8644 Fax: (510)−665−8511 Email: sseaborn@dralegal.org TERMINATED: 09/27/2017
Michelle Anne Caiola Disabilities Right Advocates 655 Third Avenue., 14th Floor New York, NY 10017 (212) 644−8644 Fax: (212) 644−8636 Email: mcaiola@dralegal.org ATTORNEY TO BE NOTICED
represented by Maia Beth Goodell (See above for address) TERMINATED: 11/21/2019 LEAD ATTORNEY
Daniel L. Brown (See above for address) ATTORNEY TO BE NOTICED
Emily Seelenfreund (See above for address) ATTORNEY TO BE NOTICED
Jelena Kolic (See above for address) ATTORNEY TO BE NOTICED
Rebecca Juliet Rodgers (See above for address) ATTORNEY TO BE NOTICED
Seth Emmanuel Packrone (See above for address) ATTORNEY TO BE NOTICED
Sid Wolinsky (See above for address) ATTORNEY TO BE NOTICED
Stuart John Seaborn (See above for address) TERMINATED: 09/27/2017

Plaintiff Bronx Independent Living Services a nonprofit organization
Plaintiff Harlem Independent Living Center a nonprofit organization

Michelle Anne Caiola (See above for address) ATTORNEY TO BE NOTICED
represented by Maia Beth Goodell (See above for address) TERMINATED: 11/21/2019 LEAD ATTORNEY
Daniel L. Brown (See above for address) ATTORNEY TO BE NOTICED
Emily Seelenfreund (See above for address) ATTORNEY TO BE NOTICED
Jelena Kolic (See above for address) ATTORNEY TO BE NOTICED
Rebecca Juliet Rodgers (See above for address) ATTORNEY TO BE NOTICED
Seth Emmanuel Packrone (See above for address) ATTORNEY TO BE NOTICED
Sid Wolinsky (See above for address) ATTORNEY TO BE NOTICED
Stuart John Seaborn (See above for address) TERMINATED: 09/27/2017
Michelle Anne Caiola (See above for address) ATTORNEY TO BE NOTICED
represented by Maia Beth Goodell (See above for address) TERMINATED: 11/21/2019 LEAD ATTORNEY
Daniel L. Brown (See above for address) ATTORNEY TO BE NOTICED
Emily Seelenfreund (See above for address) ATTORNEY TO BE NOTICED
Jelena Kolic (See above for address) ATTORNEY TO BE NOTICED
Rebecca Juliet Rodgers (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Disabled In Action of Metropolitan New York a nonprofit organization
Plaintiff New York Statewide Senior Action Council a nonprofit organization

Seth Emmanuel Packrone (See above for address) ATTORNEY TO BE NOTICED
Sid Wolinsky (See above for address) ATTORNEY TO BE NOTICED
Stuart John Seaborn (See above for address) TERMINATED: 09/27/2017
Michelle Anne Caiola (See above for address) ATTORNEY TO BE NOTICED
represented by Maia Beth Goodell (See above for address) TERMINATED: 11/21/2019 LEAD ATTORNEY
Daniel L. Brown (See above for address) ATTORNEY TO BE NOTICED
Emily Seelenfreund (See above for address) ATTORNEY TO BE NOTICED
Jelena Kolic (See above for address) ATTORNEY TO BE NOTICED
Rebecca Juliet Rodgers (See above for address) ATTORNEY TO BE NOTICED
Seth Emmanuel Packrone (See above for address) ATTORNEY TO BE NOTICED
Sid Wolinsky (See above for address) ATTORNEY TO BE NOTICED
Stuart John Seaborn (See above for address) TERMINATED: 09/27/2017
Michelle Anne Caiola (See above for address) ATTORNEY TO BE NOTICED
represented by Maia Beth Goodell (See above for address) TERMINATED: 11/21/2019 LEAD ATTORNEY
Daniel L. Brown (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Sasha Blair−Goldensohn an individual

Emily Seelenfreund (See above for address) ATTORNEY TO BE NOTICED
Jelena Kolic (See above for address) ATTORNEY TO BE NOTICED
Rebecca Juliet Rodgers (See above for address) ATTORNEY TO BE NOTICED
Seth Emmanuel Packrone (See above for address) ATTORNEY TO BE NOTICED
Sid Wolinsky (See above for address) ATTORNEY TO BE NOTICED
Stuart John Seaborn (See above for address) TERMINATED: 09/27/2017
Michelle Anne Caiola (See above for address) ATTORNEY TO BE NOTICED
represented by Maia Beth Goodell (See above for address) TERMINATED: 11/21/2019 LEAD ATTORNEY
Daniel L. Brown (See above for address) ATTORNEY TO BE NOTICED
Emily Seelenfreund (See above for address) ATTORNEY TO BE NOTICED
Jelena Kolic (See above for address) ATTORNEY TO BE NOTICED
Rebecca Juliet Rodgers (See above for address) ATTORNEY TO BE NOTICED
Seth Emmanuel Packrone (See above for address) ATTORNEY TO BE NOTICED
Sid Wolinsky (See above for address) ATTORNEY TO BE NOTICED
Stuart John Seaborn (See above for address) TERMINATED: 09/27/2017
Michelle Anne Caiola (See above for address)

Plaintiff Chris Pangilinan an individual
Plaintiff Dustin Jones an individual, on behalf of themselves and all others similarly situated

ATTORNEY TO BE NOTICED
represented by Maia Beth Goodell (See above for address) TERMINATED: 11/21/2019 LEAD ATTORNEY
Daniel L. Brown (See above for address) ATTORNEY TO BE NOTICED
Emily Seelenfreund (See above for address) ATTORNEY TO BE NOTICED
Jelena Kolic (See above for address) ATTORNEY TO BE NOTICED
Rebecca Juliet Rodgers (See above for address) ATTORNEY TO BE NOTICED
Seth Emmanuel Packrone (See above for address) ATTORNEY TO BE NOTICED
Sid Wolinsky (See above for address) ATTORNEY TO BE NOTICED
Stuart John Seaborn (See above for address) TERMINATED: 09/27/2017
Michelle Anne Caiola (See above for address) ATTORNEY TO BE NOTICED
represented by Maia Beth Goodell (See above for address) TERMINATED: 11/21/2019 LEAD ATTORNEY
Daniel L. Brown (See above for address) ATTORNEY TO BE NOTICED
Emily Seelenfreund (See above for address) ATTORNEY TO BE NOTICED
Rebecca Juliet Rodgers (See above for address) ATTORNEY TO BE NOTICED
Seth Emmanuel Packrone (See above for address) ATTORNEY TO BE NOTICED
Sid Wolinsky (See above for address)

V.
Defendant
Metropolitan Transportation Authority a public benefit corporation

ATTORNEY TO BE NOTICED
Stuart John Seaborn (See above for address) TERMINATED: 09/27/2017
Michelle Anne Caiola (See above for address) ATTORNEY TO BE NOTICED
represented by Eamonn F. Foley New York City Transit Authority 130 Livingston Street, Brooklyn, NY 11201 718−694−3905 Fax: 718−694−1070 Email: Eamonn.Foley@nyct.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Luke Kerwin New York City Transit Authority− Law Department 130 Livingston Street Brooklyn, NY 00000 718−694−3989 Fax: 718−694−1070 Email: james.kerwin@nyct.com TERMINATED: 07/17/2019 LEAD ATTORNEY
Helene Rachel Hechtkopf Hoguet Newman Regal & Kenney, LLP 60 East 42nd Street, 48th Floor New York, NY 10165 212−689−8808 Email: hhechtkopf@hnrklaw.com ATTORNEY TO BE NOTICED
Ira Jonathan Lipton Hoguet Newman Regal & Kenney One Grand Central Plaza 60 East 42nd Street, 48th Floor New York New York, NY 10165 212−689−8808 Fax: 212−689−5101 Email: ilipton@hnrlaw.com ATTORNEY TO BE NOTICED
Miriam Jerry Manber Hoguet Newman Regal & Kenney, LLP 60 East 42nd Street, 48th Floor New York, NY 10165 212−689−8808 Email: mmanber@hnrklaw.com ATTORNEY TO BE NOTICED
Steven Mark Silverberg Hoguet Newman Regal & Kenney, LLP 10 East 40th Street

Defendant Veronique Hakim in her official capacity as interim executive director of the Metropolitan Transportation Authority
Defendant New York City Transit Authority a public benefit corporation
Defendant Darryl C. Irick in his official capacity as acting president

New York, NY 10016 212−689−8808 Fax: 212−689−5101 Email: ssilverberg@hnrklaw.com ATTORNEY TO BE NOTICED
represented by Eamonn F. Foley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Luke Kerwin (See above for address) TERMINATED: 07/17/2019 LEAD ATTORNEY
Helene Rachel Hechtkopf (See above for address) ATTORNEY TO BE NOTICED
Ira Jonathan Lipton (See above for address) ATTORNEY TO BE NOTICED
Miriam Jerry Manber (See above for address) ATTORNEY TO BE NOTICED
Steven Mark Silverberg (See above for address) ATTORNEY TO BE NOTICED
represented by Eamonn F. Foley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Luke Kerwin (See above for address) TERMINATED: 07/17/2019 LEAD ATTORNEY
Helene Rachel Hechtkopf (See above for address) ATTORNEY TO BE NOTICED
Ira Jonathan Lipton (See above for address) ATTORNEY TO BE NOTICED
Miriam Jerry Manber (See above for address) ATTORNEY TO BE NOTICED
Steven Mark Silverberg (See above for address) ATTORNEY TO BE NOTICED
represented by Eamonn F. Foley (See above for address)

of the New York City Transit Authority
Defendant The City Of New York , TERMINATED: 09/06/2017
Miscellaneous TransitCenter

LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Luke Kerwin (See above for address) TERMINATED: 07/17/2019 LEAD ATTORNEY
Helene Rachel Hechtkopf (See above for address) ATTORNEY TO BE NOTICED
Ira Jonathan Lipton (See above for address) ATTORNEY TO BE NOTICED
Miriam Jerry Manber (See above for address) ATTORNEY TO BE NOTICED
Steven Mark Silverberg (See above for address) ATTORNEY TO BE NOTICED
represented by Martin John Bowe , Jr NYC Law Department 100 Church Street Room 3−212 New York, NY 10007 212 788−0878 Fax: 2127880940 Email: mbowe@law.nyc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
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 ATTORNEY TO BE NOTICED
represented by Lauren Kelley Ross Akin Gump Strauss Hauer & Feld LLP (NYC) One Bryant Park New York, NY 10036 212−872−7477 Fax: 212−872−1002 Email: lkross@akingump.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert James Boller Akin Gump Strauss Hauer & Feld LLP (NYC) One Bryant Park New York, NY 10036 (212) 872−8170 Fax: (212) 872−1002 Email: rboller@akingump.com

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 04/25/2017
04/25/2017 04/25/2017 04/25/2017 04/25/2017 04/25/2017 04/25/2017 04/25/2017 04/25/2017

# Docket Text
1 COMPLAINT against Veronique Hakim, Darryl C. Irick, Metropolitan Transportation Authority, New York City Transit Authority, The City Of New York,. (Filing Fee $ 400.00, Receipt Number 0208−13580030)Document filed by New York Statewide Senior Action Council, Bronx Independent Living Services, Sasha Blair−Goldensohn, Dustin Jones, Brooklyn Center for Independence of the Disabled, Chris Pangilinan, Center for Independence of the Disabled, New York, Harlem Independent Living Center, Disabled In Action of Metropolitan New York.(Caiola, Michelle) (Entered: 04/25/2017)
2 CIVIL COVER SHEET filed. (Caiola, Michelle) (Entered: 04/25/2017)
3 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan.(Caiola, Michelle) (Entered: 04/25/2017)
4 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan.(Caiola, Michelle) (Entered: 04/25/2017)
5 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan.(Caiola, Michelle) (Entered: 04/25/2017)
6 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan.(Caiola, Michelle) (Entered: 04/25/2017)
7 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan.(Caiola, Michelle) (Entered: 04/25/2017)
8 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan.(Caiola, Michelle) (Entered: 04/25/2017)
9 REQUEST FOR ISSUANCE OF SUMMONS as to Metropolitan Transportation Authority, re: 1 Complaint,,. Document filed by Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan. (Caiola, Michelle) (Entered: 04/25/2017)

04/25/2017 04/25/2017 04/25/2017 04/25/2017 04/25/2017 04/25/2017 04/26/2017
04/26/2017
04/26/2017 04/26/2017 04/26/2017

10 REQUEST FOR ISSUANCE OF SUMMONS as to New York City Transit Authority, re: 1 Complaint,,. Document filed by Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan. (Caiola, Michelle) (Entered: 04/25/2017)
11 REQUEST FOR ISSUANCE OF SUMMONS as to The City of New York, re: 1 Complaint,,. Document filed by Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan. (Caiola, Michelle) (Entered: 04/25/2017)
12 REQUEST FOR ISSUANCE OF SUMMONS as to Veronique Hakim, re: 1 Complaint,,. Document filed by Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan. (Caiola, Michelle) (Entered: 04/25/2017)
13 REQUEST FOR ISSUANCE OF SUMMONS as to Darryl C. Irick, Acting President, re: 1 Complaint,,. Document filed by Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan. (Caiola, Michelle) (Entered: 04/25/2017)
14 NOTICE OF APPEARANCE by Jelena Kolic on behalf of Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, New York Statewide Senior Action Council, Chris Pangilinan. (Kolic, Jelena) (Entered: 04/25/2017)
15 NOTICE OF APPEARANCE by Rebecca Juliet Rodgers on behalf of Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan. (Rodgers, Rebecca) (Entered: 04/25/2017)
***NOTICE TO ATTORNEY REGARDING PARTY MODIFICATION. Notice to attorney Michelle Anne Caiola. The party information for the following party/parties has been modified: Darryl C. Irick, New York City Transit Authority, Veronique Hakim, Metropolitan Transportation Authority, Dustin Jones, Chris Pangilinan, Sasha Blair−Goldensohn, New York Statewide Senior Action Council, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York. The information for the party/parties has been modified for the following reason/reasons: party text was omitted. (kl) (Entered: 04/26/2017)
CASE OPENING INITIAL ASSIGNMENT NOTICE: The above−entitled action is assigned to Judge Katherine B. Forrest. Please download and review the Individual Practices of the assigned District Judge, located at http://nysd.uscourts.gov/judges/District. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Please download and review the ECF Rules and Instructions, located at http://nysd.uscourts.gov/ecf_filing.php. (kl) (Entered: 04/26/2017)
Magistrate Judge Debra C. Freeman is so designated. (kl) (Entered: 04/26/2017)
Case Designated ECF. (kl) (Entered: 04/26/2017)
16 ELECTRONIC SUMMONS ISSUED as to Metropolitan Transportation Authority. (kl) (Entered: 04/26/2017)

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17 ELECTRONIC SUMMONS ISSUED as to New York City Transit Authority. (kl) (Entered: 04/26/2017)
18 ELECTRONIC SUMMONS ISSUED as to The City Of New York. (kl) (Entered: 04/26/2017)
19 ELECTRONIC SUMMONS ISSUED as to Veronique Hakim. (kl) (Entered: 04/26/2017)
20 ELECTRONIC SUMMONS ISSUED as to Darryl C. Irick. (kl) (Entered: 04/26/2017)
21 ORDER: Initial Conference set for 6/12/2017 at 01:00 PM before Judge Katherine B. Forrest. (Signed by Judge Katherine B. Forrest on 4/27/2017) (cla) (Entered: 04/27/2017)
22 FILING ERROR − DEFICIENT DOCKET ENTRY − MOTION for Sidney M. Wolinsky to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−13600430. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan. (Attachments: # 1 Exhibit Certificate of Good Standing, # 2 Text of Proposed Order)(Wolinsky, Sid) Modified on 4/28/2017 (ma). (Entered: 04/28/2017)
23 FILING ERROR − DEFICIENT DOCKET ENTRY − MOTION for Stuart J. Seaborn to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−13600747. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan. (Attachments: # 1 Exhibit Certificate of Good Standing, # 2 Text of Proposed Order)(Seaborn, Stuart) Modified on 4/28/2017 (ma). (Entered: 04/28/2017)
>>>NOTICE REGARDING DEFICIENT MOTION TO APPEAR PRO HAC VICE. Notice to RE−FILE Document No. 23 MOTION for Stuart J. Seaborn to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−13600747. Motion and supporting papers to be reviewed by Clerk's Office staff., 22 MOTION for Sidney M. Wolinsky to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−13600430. Motion and supporting papers to be reviewed by Clerk's Office staff... The filing is deficient for the following reason(s): MISSING AFFIDAVIT OR DECLARATION PURSUANT TO LOCAL RULE 1.3;. Re−file the motion as a Motion to Appear Pro Hac Vice − attach the correct signed PDF − select the correct named filer/filers − attach valid Certificates of Good Standing issued within the past 30 days − attach Proposed Order.. (ma) (Entered: 04/28/2017)
24 MOTION for Sidney M. Wolinsky to Appear Pro Hac Vice . Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan. (Attachments: # 1 Errata Certificate of Good Standing, # 2 Affidavit of Sidney Wolinsky, # 3 Text of Proposed Order)(Wolinsky, Sid) (Entered: 05/02/2017)
25 MOTION for Stuart J. Seaborn to Appear Pro Hac Vice . Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan. (Attachments: # 1 Exhibit Certificate of Good Standing, # 2 Affidavit of Stuart Seaborn, # 3 Text of Proposed Order)(Seaborn, Stuart) (Entered: 05/02/2017)

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>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 25 MOTION for Stuart J. Seaborn to Appear Pro Hac Vice . Motion and supporting papers to be reviewed by Clerk's Office staff., 24 MOTION for Sidney M. Wolinsky to Appear Pro Hac Vice . Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (bcu) (Entered: 05/03/2017)
26 ORDER FOR ADMISSION PRO HAC VICE: granting 24 Motion for Sidney M. Wolinsky to Appear Pro Hac Vice. (Signed by Judge Katherine B. Forrest on 5/4/2017) (ap) (Entered: 05/04/2017)
27 ORDER FOR ADMISSION PRO HAC VICE granting 25 Motion for Stuart J. Seaborn to Appear Pro Hac Vice. (Signed by Judge Katherine B. Forrest on 5/5/2017) (mro) (Entered: 05/05/2017)
28 NOTICE OF APPEARANCE by James Luke Kerwin on behalf of Veronique Hakim, Darryl C. Irick, Metropolitan Transportation Authority, New York City Transit Authority. (Kerwin, James) (Entered: 05/08/2017)
29 AFFIDAVIT OF SERVICE of Summons and Complaint,,. Metropolitan Transportation Authority served on 5/2/2017, answer due 5/23/2017. Service was accepted by Jana Parker, Legal Clerk. Document filed by New York Statewide Senior Action Council; Bronx Independent Living Services; Sasha Blair−Goldensohn ; Dustin Jones; Brooklyn Center for Independence of the Disabled; Chris Pangilinan; Center for Independence of the Disabled, New York ; Harlem Independent Living Center; Disabled In Action of Metropolitan New York. (Caiola, Michelle) (Entered: 05/08/2017)
30 AFFIDAVIT OF SERVICE of Summons and Complaint,,. New York City Transit Authority served on 5/2/2017, answer due 5/23/2017. Service was accepted by Laverne Sterling, Legal Clerk. Document filed by New York Statewide Senior Action Council; Bronx Independent Living Services; Sasha Blair−Goldensohn ; Dustin Jones; Brooklyn Center for Independence of the Disabled; Chris Pangilinan; Center for Independence of the Disabled, New York ; Harlem Independent Living Center; Disabled In Action of Metropolitan New York. (Caiola, Michelle) (Entered: 05/08/2017)
31 AFFIDAVIT OF SERVICE of Summons and Complaint,,. The City Of New York, served on 5/2/2017, answer due 5/23/2017. Service was accepted by Betty Mazyck, Legal Clerk. Document filed by New York Statewide Senior Action Council; Bronx Independent Living Services; Sasha Blair−Goldensohn ; Dustin Jones; Brooklyn Center for Independence of the Disabled; Chris Pangilinan; Center for Independence of the Disabled, New York ; Harlem Independent Living Center; Disabled In Action of Metropolitan New York. (Caiola, Michelle) (Entered: 05/08/2017)
32 AFFIDAVIT OF SERVICE of Summons and Complaint,,. Veronique Hakim served on 5/2/2017, answer due 5/23/2017. Service was accepted by Jana Parker, Legal Clerk. Document filed by New York Statewide Senior Action Council; Bronx Independent Living Services; Sasha Blair−Goldensohn ; Dustin Jones; Brooklyn Center for Independence of the Disabled; Chris Pangilinan; Center for Independence of the Disabled, New York ; Harlem Independent Living Center; Disabled In Action of Metropolitan New York. (Caiola, Michelle) (Entered: 05/08/2017)
33 AFFIDAVIT OF SERVICE of Summons and Complaint,,. Darryl C. Irick served on 5/2/2017, answer due 5/23/2017. Service was accepted by Laverne Sterling, Legal Clerk. Document filed by New York Statewide Senior Action Council; Bronx Independent Living Services; Sasha Blair−Goldensohn ; Dustin Jones; Brooklyn Center for Independence of the Disabled; Chris Pangilinan; Center for Independence of the Disabled, New York ; Harlem Independent Living Center; Disabled In Action of Metropolitan New York. (Caiola, Michelle) (Entered: 05/08/2017)
34 NOTICE OF APPEARANCE by Daniel L. Brown on behalf of Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan. (Brown, Daniel) (Entered: 05/11/2017)

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35 JOINT LETTER MOTION to Adjourn Conference and to Extend Time to Answer Complaint addressed to Judge Katherine B. Forrest from James L. Kerwin dated May 16, 2017. Document filed by Veronique Hakim, Darryl C. Irick, Metropolitan Transportation Authority, New York City Transit Authority.(Kerwin, James) (Entered: 05/16/2017)
36 ORDER granting 35 Letter Motion to Adjourn Conference. Ordered. 1. IPTC adjourned to 7/26/17 at 1pm. (I'm not available on your August 11 date). 2. Time to respond/answer extended to 8/21/17. (Initial Conference set for 7/26/2017 at 01:00 PM before Judge Katherine B. Forrest.) (Signed by Judge Katherine B. Forrest on 5/17/17) (yv) (Entered: 05/18/2017)
Set/Reset Deadlines: Veronique Hakim answer due 8/21/2017; Metropolitan Transportation Authority answer due 8/21/2017; New York City Transit Authority answer due 8/21/2017. (yv) (Entered: 05/18/2017)
37 JOINT PRE−CONFERENCE STATEMENT / Proposed Scheduling Order. Document filed by Veronique Hakim, Darryl C. Irick, Metropolitan Transportation Authority, New York City Transit Authority.(Kerwin, James) (Entered: 07/20/2017)
38 NOTICE OF APPEARANCE by Ira Jonathan Lipton on behalf of Veronique Hakim, Darryl C. Irick, Metropolitan Transportation Authority, New York City Transit Authority. (Lipton, Ira) (Entered: 07/25/2017)
39 NOTICE OF APPEARANCE by Helene Rachel Hechtkopf on behalf of Veronique Hakim, Darryl C. Irick, Metropolitan Transportation Authority, New York City Transit Authority. (Hechtkopf, Helene) (Entered: 07/25/2017)
40 NOTICE OF APPEARANCE by Eamonn F. Foley on behalf of Veronique Hakim, Darryl C. Irick, Metropolitan Transportation Authority, New York City Transit Authority. (Foley, Eamonn) (Entered: 07/26/2017)
41 NOTICE OF APPEARANCE by Mark Galen Toews on behalf of The City Of New York,. (Toews, Mark) (Entered: 07/26/2017)
Minute Entry for proceedings held before Judge Katherine B. Forrest: Initial Pretrial Conference held on 7/26/2017. (jp) (Entered: 07/26/2017)
42 SCHEDULING ORDER: Application to extend discovery based on rule 16 conference should by 9/15/2017. class cert. motion (R.23) 11/6/2017, 12/22/2017 and 1/25/2018. All parties do not consent to conducting all further proceedings before a United States Magistrate Judge, including motions and trial. 28 U.S.C. 636(c). Trial will not be before a jury. trial is anticipated to take 1 week. Motions due by 9/4/2018. Responses due by 9/25/2018 Replies due by 10/2/2018. Fact Discovery due by 6/21/2018. Expert Discovery due by 8/21/2018. Final Pretrial Conference set for 12/4/2018 at 01:00 PM before Judge Katherine B. Forrest. Status Conference set for 10/20/2018 at 10:00 AM before Judge Katherine B. Forrest. Joint Pretrial Order due by 11/28/2018. .Settlement discussions must occur in parallel to this (schedule will not be adjourned, except in very unusual situations, for settlement discussions). So Ordered. (Signed by Judge Katherine B. Forrest on 7/26/2017) (js) Modified on 8/9/2017 (js). (Entered: 07/27/2017)
43 LETTER MOTION to Stay the action as against the City of New York addressed to Judge Katherine B. Forrest from Martin Bowe dated August 16, 2017. Document filed by The City Of New York,. (Attachments: # 1 Text of Proposed Order)(Bowe, Martin) (Entered: 08/16/2017)
***DELETED DOCUMENT. Deleted document number 44 So−Ordered Stipulation. The document was incorrectly filed in this case. (rjm) (Entered: 09/08/2017)
54 MEMO ENDORSEMENT on PROPOSED STIPULATION. ENDORSEMENT: Ordered. I don't want to "stay" the action as to NYC. Either NYC is in or out. It sounds like you can dismiss subject to a tolling agreement that would allow either party to trigger it and refile the action. Let me know if that would work. Motions terminated: 43 LETTER MOTION to Stay the action as against the City of New York addressed to Judge Katherine B. Forrest from Martin Bowe dated August 16, 2017. Document filed by The City Of New York. (Signed by Judge Katherine B. Forrest on 8/17/2017) (rjm)

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(Entered: 09/08/2017)
45 LETTER MOTION for Extension of Time of the City's time to respond to the complaint addressed to Judge Katherine B. Forrest from Martin Bowe dated August 18, 2017. Document filed by The City Of New York,.(Bowe, Martin) (Entered: 08/18/2017)
46 NOTICE OF APPEARANCE by Martin John Bowe, Jr on behalf of The City Of New York,. (Bowe, Martin) (Entered: 08/18/2017)
47 ORDER granting 45 Letter Motion for Extension of Time to respond to the Complaint. So Ordered.. (Signed by Judge Katherine B. Forrest on 8/21/2017) (js) (Entered: 08/21/2017)
Set/Reset Deadlines: The City Of New York, answer due 9/6/2017. (js) (Entered: 08/21/2017)
48 ANSWER to 1 Complaint,,. Document filed by Veronique Hakim, Darryl C. Irick, Metropolitan Transportation Authority, New York City Transit Authority.(Hechtkopf, Helene) (Entered: 08/21/2017)
49 TRANSCRIPT of Proceedings re: conference held on 7/26/2017 before Judge Katherine B. Forrest. Court Reporter/Transcriber: Andrew Walker, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 9/14/2017. Redacted Transcript Deadline set for 9/25/2017. Release of Transcript Restriction set for 11/22/2017.(McGuirk, Kelly) (Entered: 08/24/2017)
50 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a conference proceeding held on 7/26/17 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: 08/24/2017)
51 NOTICE OF APPEARANCE by Maia Beth Goodell on behalf of Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan. (Goodell, Maia) (Entered: 08/25/2017)
52 FILING ERROR − ELECTRONIC FILING OF NON−ECF DOCUMENT − STIPULATION OF VOLUNTARY DISMISSAL It is hereby stipulated and agreed by and between the parties and/or their respective counsel(s) that the above−captioned action is voluntarily dismissed, against the defendant(s) The City Of New York, pursuant to Rule 41(a)(1)(A)(ii) of the Federal Rules of Civil Procedure. Document filed by The City Of New York,.(Bowe, Martin) Modified on 9/5/2017 (dt). (Entered: 09/01/2017)
***NOTE TO ATTORNEY TO E−MAIL PDF. Note to Attorney Martin Bowwe for noncompliance with Section 18.3 of the S.D.N.Y. Electronic Case Filing Rules & Instructions. E−MAIL the PDF for Document 52 Stipulation of Voluntary Dismissal, to: judgments@nysd.uscourts.gov. (dt) (Entered: 09/05/2017)
53 STIPULATION OF DISMISSAL WITHOUT PREJUDICE: Now therefore, with the agreement of all Parties, this action is dismissed without prejudice as against City of New York. So Ordered (Signed by Judge Katherine B. Forrest on 9/6/2017) (js) (Entered: 09/06/2017)
55 NOTICE OF APPEARANCE by Miriam Jerry Manber on behalf of Veronique Hakim, Darryl C. Irick, Metropolitan Transportation Authority, New York City Transit Authority. (Manber, Miriam) (Entered: 09/15/2017)
56 LETTER MOTION for Extension of Time to Complete Discovery addressed to Judge Katherine B. Forrest from Ira J. Lipton dated September 15, 2017. Document filed by

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Veronique Hakim, Darryl C. Irick, Metropolitan Transportation Authority, New York City Transit Authority.(Manber, Miriam) (Entered: 09/15/2017)
57 ORDER: granting 56 Letter Motion for Extension of Time to Complete Discovery. So ordered. A new schedule with all dates shall issue shortly. Motions due by 10/16/2017. Response due by 11/6/2018. Reply due by 11/13/2017. Pretrial order due by 1/9/2018. (Signed by Judge Katherine B. Forrest on 9/15/2017) (ap) (Entered: 09/15/2017)
Set/Reset Deadlines: Responses due by 11/6/2017. Replies due by 11/13/2017. (ap) (Entered: 09/15/2017)
58 ORDER: The Court received the defendants' request to extend the discovery deadlines. (ECF No. 56.) The Court hereby sets out the following amended schedule: ( Expert Discovery due by 10/2/2018., Fact Discovery due by 7/31/2018., Motions due by 10/16/2018., Joint Pretrial Order due by 1/9/2019., Responses due by 11/6/2018, Replies due by 11/13/2018., Final Pretrial Conference set for 1/16/2019 at 01:00 PM before Judge Katherine B. Forrest., Telephone Conference set for 10/20/2017 at 10:00 AM before Judge Katherine B. Forrest.) (Signed by Judge Katherine B. Forrest on 9/19/2017) (js) (Entered: 09/19/2017)
59 NOTICE OF APPEARANCE by Steven Mark Silverberg on behalf of Veronique Hakim, Darryl C. Irick, Metropolitan Transportation Authority, New York City Transit Authority. (Silverberg, Steven) (Entered: 09/19/2017)
60 MOTION for Stuart J. Seaborn to Withdraw as Attorney . Document filed by Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan.(Seaborn, Stuart) (Entered: 09/25/2017)
61 MEMO ENDORSEMENT: on re: 60 NOTICE OF MOTION TO WITHDRAWAL OF COUNSEL, for Stuart J. Seaborn to Withdraw as Attorney, filed by Center for Independence of the Disabled, New York, Brooklyn Center for Independence of the Disabled, Harlem Independent Living Center, Sasha Blair−Goldensohn, New York Statewide Senior Action Council, Disabled In Action of Metropolitan New York, Chris Pangilinan, Dustin Jones, Bronx Independent Living Services. ENDORSEMENT: So ordered. Attorney Stuart John Seaborn terminated. (Signed by Judge Katherine B. Forrest on 9/27/2017) (ap) (Entered: 09/27/2017)
62 ORDER. The Court held a telephonic status conference on October 20, 2017. The Court now clarifies the questions it posed about notice for a Rule 23(b)(2) class for purely injunctive and declaratory relief. While the Court may require that notice be provided to a (b)(2) class, Rule 23(c)(2)(A) makes such notice discretionary. The Court declines to require notice at this stage of the litigation. Should the parties reach a settlement or other final disposition, the Court will at that time, per Rule 23(e), determine if/what type of notice shall be provided. Furthermore, the Court misspoke when it referred to an "opt out" provision, given that the plaintiffs seek purely injunctive and declaratory relief. The Court will hold another telephonic status conference on this matter on Friday, January 19, 2018 at 4:30 p.m. The parties shall call Chambers (212−805−0276) from one line at that time. SO ORDERED. (Telephone Conference set for 1/19/2018 at 04:30 PM before Judge Katherine B. Forrest.) (Signed by Judge Katherine B. Forrest on 10/20/2017) (rjm) (Entered: 10/20/2017)
63 STIPULATION AND ORDER CERTIFYING CLASS:NOW, THEREFORE, IT IS STIPULATED AND SO ORDERED THAT: 1. The requirements of Rule 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure having been met, this action is certified to proceed as a class action on behalf of all persons who use or seek to use the New York City subway system, and have a disability that requires them to use an elevator to access the subway system (the "Class"). 2. Sasha Blair−Goldensohn. Chris Pangilinan, and Dustin Jones are appointed representatives for the Class. 3. Disability Rights Advocates and Sheppard Mullin Richter & Hampton LLP are appointed counsel for the Class. (Signed by Judge Katherine B. Forrest on 11/3/2017) (js) (Entered: 11/06/2017)

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64 ORDER: The telephonic status conference currently scheduled for Friday, January 19, 2018 at 4:30 p.m. is rescheduled to Wednesday, January 24, 2018 at 2:30 p.m. Parties shall call Chambers (212−806−0276) from one line at that time. (Telephone Conference set for 1/24/2018 at 2:30 PM before Judge Katherine B. Forrest.) (Signed by Judge Katherine B. Forrest on 1/18/2018) (ap) (Entered: 01/18/2018)
65 ORDER: The Court held a telephonic status conference on this matter on January 24, 2018. The next telephonic status conference is hereby scheduled for Friday, April 13, 2018 at 9:00 a.m. The parties shall call Chambers (212−805−0276) from one line at that time. (Telephone Conference set for 4/13/2018 at 9:00 AM before Judge Katherine B. Forrest.) (Signed by Judge Katherine B. Forrest on 1/24/2018) (ap) (Entered: 01/24/2018)
66 PROTECTIVE ORDER PURSUANT TO F.R.E. 502(d): ORDERED that if, in connection with this litigation, a party inadvertently discloses information subject to a claim of attorney−client privilege or work−product protection ("Inadvertently Disclosed Information"), such disclosure shall not constitute or be deemed a waiver or forfeiture of any claim of privilege or work−product protection with respect to the Inadvertently Disclosed Information and its subject matter. IT IS FURTHER ORDERED that if a disclosing party makes a claim of inadvertent disclosure, the receiving party shall, within five business days, return or destroy all copies of the Inadvertently Disclosed Information, and provide a certification of counsel that all such information has been returned or destroyed. Within five business days of the notification that such Inadvertently Disclosed Information has been returned or destroyed, the disclosing party shall produce a privilege log with respect to the Inadvertently Disclosed Information. The receiving party may move the Court for an Order compelling production of the Inadvertently Disclosed Information. The motion shall be filed under seal and shall not assert as a ground forentering such an Order the fact or circumstances of the inadvertent production. SO ORDERED. (Signed by Judge Katherine B. Forrest on 3/12/2018) (ama) (Entered: 03/12/2018)
67 NOTICE OF CHANGE OF ADDRESS by Rebecca Juliet Rodgers on behalf of All Plaintiffs. New Address: Disability Rights Advocates, 655 Third Avenue, 14th Floor, New York, New York, USA 10017, 2126448644. (Rodgers, Rebecca) (Entered: 03/12/2018)
68 NOTICE OF CHANGE OF ADDRESS by Maia Beth Goodell on behalf of Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan. New Address: Disability Rights Advocates, 655 Third Avenue, 14th Floor, New York, New York (NY), 10017, 2126448644. (Goodell, Maia) (Entered: 03/13/2018)
69 NOTICE OF CHANGE OF ADDRESS by Michelle Anne Caiola on behalf of All Plaintiffs. New Address: Disability Rights Advocates, 655 Third Avenue, 14th Floor, New York, New York, USA 10017, 2126448644. (Caiola, Michelle) (Entered: 03/22/2018)
Minute Entry for proceedings held before Judge Katherine B. Forrest: Telephonic Status Conference held on 4/13/2018. (jp) (Entered: 04/13/2018)
70 ORDER: The Court held a telephonic status conference on this matter on April 13, 2018. As discussed in the conference: A proposed schedule for depositions shall be submitted to the Court not later than April 23, 2018; All document production shall be completed not later than May 4, 2018; A telephonic status conference shall be held in this matter on Friday, July 13, 2018 at 1:00 p.m. (Deposition due by 4/23/2018. Status Conference set for 7/13/2018 at 01:00 PM before Judge Katherine B. Forrest.) (Signed by Judge Katherine B. Forrest on 4/17/2018) (jwh) (Entered: 04/17/2018)
71 JOINT LETTER MOTION for Extension of Time to File Proposed Schedule for Depositions addressed to Judge Katherine B. Forrest from Daniel L. Brown dated April 23, 2018. Document filed by Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan.(Brown, Daniel) (Entered: 04/23/2018)

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06/11/2018 06/14/2018

72 ORDER granting 71 Letter Motion for Extension of Time to File. SO ORDERED. (Signed by Judge Katherine B. Forrest on 4/25/2018) (mml) (Entered: 04/26/2018)
73 JOINT LETTER addressed to Judge Katherine B. Forrest from Ira J. Lipton dated April 30, 2018 re: Deposition Schedule. Document filed by Veronique Hakim, Darryl C. Irick, Metropolitan Transportation Authority, New York City Transit Authority.(Manber, Miriam) (Entered: 04/30/2018)
74 JOINT LETTER addressed to Judge Katherine B. Forrest from Ira J. Lipton dated April 30, 2018 re: Deposition Schedule − CORRECTED. Document filed by Veronique Hakim, Darryl C. Irick, Metropolitan Transportation Authority, New York City Transit Authority.(Manber, Miriam) (Entered: 04/30/2018)
75 MEMO ENDORSEMENT on re: 74 JOINT LETTER addressed to Judge Katherine B. Forrest from Ira J. Lipton dated April 30, 2018 re: Deposition Schedule − CORRECTED. Document filed by Veronique Hakim, Darryl C. Irick, Metropolitan Transportation Authority, New York City Transit Authority. ENDORSEMENT: So ordered. (Deposition due by 7/12/2018.) (Signed by Judge Katherine B. Forrest on 5/1/2018) (rjm) (Entered: 05/01/2018)
76 TRANSCRIPT of Proceedings re: CONFERENCE held on 1/24/2018 before Judge Katherine B. Forrest. Court Reporter/Transcriber: Samuel Mauro, (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 5/23/2018. Redacted Transcript Deadline set for 6/4/2018. Release of Transcript Restriction set for 7/31/2018.(McGuirk, Kelly) (Entered: 05/02/2018)
77 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 1/24/18 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 05/02/2018)
78 NOTICE OF APPEARANCE by Seth Emmanuel Packrone on behalf of Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan. (Packrone, Seth) (Entered: 05/31/2018)
79 LETTER addressed to Judge Katherine B. Forrest from Michelle Caiola dated June 6, 2018 re: Request to the Court to Compel Defendants to produce Mr. Andrew Byford, President of the New York City Transit Authority (NYCTA), to appear for deposition pursuant to a properly served notice dated May 16, 2018.. Document filed by Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan.(Caiola, Michelle) (Entered: 06/06/2018)
80 LETTER addressed to Judge Katherine B. Forrest from Ira J. Lipton dated June 11, 2018 re: Plaintiff's motion to compel the deposition of NYCT President Andy Byford. Document filed by Veronique Hakim, Darryl C. Irick, Metropolitan Transportation Authority, New York City Transit Authority. (Attachments: # 1 Andy Byford declaration)(Hechtkopf, Helene) (Entered: 06/11/2018)
81 ORDER re: 80 Letter, filed by Darryl C. Irick, Metropolitan Transportation Authority, Veronique Hakim, New York City Transit Authority. Before the Court is plaintiffs motion to compel defendants to produce Andrew Byford, President of the New York City Transit Authority, to appear for a deposition. Having carefully reviewed the submissions, the Court DENIES the motion. The material facts of the complaint will not be developed through this witness. While he is in possession of some relevant information, the facts needed to either prove liability or provide relief will not be drawn from his views or opinions but from the facts of what happened. There are other

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witnesses better positioned to provide relevant information in this matter. SO ORDERED. (Signed by Judge Katherine B. Forrest on 6/14/2018) (ne) (Entered: 06/14/2018)
82 ORDER. The telephonic status conference set for July 13, 2018 is hereby rescheduled to Thursday, July 12, 2018 at 12:30 p.m. The parties are directed to call Chambers (212−805−0276) from one line at that time. SO ORDERED. (Status Conference set for 7/12/2018 at 12:30 PM before Judge Katherine B. Forrest.) (Signed by Judge Katherine B. Forrest on 6/27/2018) (rjm) (Entered: 06/27/2018)
83 ORDER: The Court held a telephonic status conference on July 12, 2018 in the above captioned case. In accordance with the discussion had during that conference, the Court ordered as follows: 1. Fact discovery shall close on September 18, 2018 (but all requests for discovery shall be made on or before July 31, 2018); 2. Expert discovery shall close on October 16, 2018, initial expert reports shall be proffered not later than August 31, 2018, and rebuttal reports shall be provided not later than September 21, 2018; 3. The last date to file dispositive motions shall be October 30, 2018, with oppositions by November 20, 2018 and replies by December 4, 2018; 4. The joint pretrial order shall be filed not later than January 9, 2019; 5. The in−person final pretrial conference remains scheduled for January 16, 2018 at 1:00 p.m.; and 6. Trial shall commence on January 22, 2019. ( Discovery due by 7/31/2018. Expert Discovery due by 10/16/2018. Fact Discovery due by 9/18/2018. Motions due by 10/30/2018. joint Pretrial Order due by 1/9/2019. Responses due by 11/20/2018, Replies due by 12/4/2018., Final Pretrial Conference set for 1/16/2018 at 01:00 PM before Judge Katherine B. Forrest.) (Signed by Judge Katherine B. Forrest on 7/12/2018) (js) (Entered: 07/13/2018)
84 ORDER: A telephonic status conference is hereby scheduled for Friday, September 21, 2018 at 3:30 p.m. The parties shall call Chambers (212−805−0276) from one line at that time. So Ordered. ( Telephone Conference set for 9/21/2018 at 03:30 PM before Judge Katherine B. Forrest.) (Signed by Judge Katherine B. Forrest on 7/27/2018) (js) (Entered: 07/30/2018)
85 ORDER: The telephonic status conference that is currently scheduled for Friday, September 21, 2018, at 3:30 p.m. (see ECF No. 84) is hereby rescheduled to Friday, September 28, 2018, at 12:00 p.m. The parties shall provide Chambers with a call−in number ahead of the conference, unless the Court orders otherwise. So Ordered. ( Telephone Conference set for 9/28/2018 at 12:00 PM before Judge Katherine B. Forrest.) (Signed by Judge Katherine B. Forrest on 8/14/2018) (js) (Entered: 08/15/2018)
86 MOTION for Emily Seelenfreund to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−15508296. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan. (Attachments: # 1 Affidavit Signed Affidavit, # 2 Letter to Court, # 3 Pro Hac Vice Order for Admission, # 4 Certificate of Good Standing for Emily Seelenfreund)(Seelenfreund, Emily) (Entered: 08/29/2018)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 86 MOTION for Emily Seelenfreund to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−15508296. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (bcu) (Entered: 08/29/2018)
87 ORDER FOR ADMISSION PRO HAC VICE granting 86 Motion for Emily Seelenfreund to Appear Pro Hac Vice. IT IS HEREBY ORDERED that Applicant is admitted to practice Pro Hac Vice in the above captioned case in the United States District Court for the Southern District of New York. All attorneys appearing before this Court are subject to Local Rules of this Court, including the Rules governing discipline of attorneys. (Signed by Judge Katherine B. Forrest on 8/30/18) (yv) (Entered: 08/30/2018)

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88 LETTER MOTION for Extension of Time to submit a letter−motion re Interrogatories addressed to Judge Katherine B. Forrest from Maia Goodell dated 9/18/2018. Document filed by Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan.(Goodell, Maia) (Entered: 09/18/2018)
89 JOINT LETTER MOTION for Extension of Time to exchange rebuttal expert reports addressed to Judge Katherine B. Forrest from Ira J. Lipton dated September 18, 2018. Document filed by Veronique Hakim, Darryl C. Irick, Metropolitan Transportation Authority, New York City Transit Authority.(Silverberg, Steven) (Entered: 09/18/2018)
90 ORDER granting 88 Letter Motion for Extension of Time. SO ORDERED. Motions due by 9/26/2018. (Signed by Judge Loretta A. Preska on 9/19/2018) (cf) (Entered: 09/19/2018)
91 ORDER granting 89 Letter Motion for Extension of Time. SO ORDERED. (Signed by Judge Loretta A. Preska on 9/19/2018) (cf) (Entered: 09/19/2018)
NOTICE OF CASE REASSIGNMENT to Judge Robert W. Sweet. Judge Katherine B. Forrest is no longer assigned to the case. (sjo) (Entered: 09/20/2018)
92 MOTION to Compel MTA to Respond to Interrogatories . Document filed by Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan. Return Date set for 10/10/2018 at 12:00 PM.(Goodell, Maia) (Entered: 09/26/2018)
93 DECLARATION of Maia Goodell in Support re: 92 MOTION to Compel MTA to Respond to Interrogatories .. Document filed by Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Goodell, Maia) (Entered: 09/26/2018)
94 MEMORANDUM OF LAW in Support re: 92 MOTION to Compel MTA to Respond to Interrogatories . . Document filed by Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan. (Goodell, Maia) (Entered: 09/26/2018)
95 PROPOSED SCHEDULING ORDER. Document filed by Veronique Hakim, Darryl C. Irick, Metropolitan Transportation Authority, New York City Transit Authority. (Attachments: # 1 Cover Letter accompanying Proposed Scheduling Order) (Silverberg, Steven) (Entered: 10/03/2018)
96 MEMORANDUM OF LAW in Opposition re: 92 MOTION to Compel MTA to Respond to Interrogatories . . Document filed by Veronique Hakim, Darryl C. Irick, Metropolitan Transportation Authority, New York City Transit Authority. (Hechtkopf, Helene) (Entered: 10/03/2018)
97 DECLARATION of Helene R. Hechtkopf in Opposition re: 92 MOTION to Compel MTA to Respond to Interrogatories .. Document filed by Veronique Hakim, Darryl C. Irick, Metropolitan Transportation Authority, New York City Transit Authority. (Attachments: # 1 Exhibit Plaintiffs' first set of interrogatories, # 2 Exhibit Letter from M. Goodell to I. Lipton, # 3 Exhibit Excerpt from deposition of A. Suarez, # 4 Exhibit Excerpt from deposition of A. Stern)(Hechtkopf, Helene) (Entered: 10/03/2018)
98 REPLY MEMORANDUM OF LAW in Support re: 92 MOTION to Compel MTA to Respond to Interrogatories . . Document filed by Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York

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Statewide Senior Action Council, Chris Pangilinan. (Goodell, Maia) (Entered: 10/05/2018)
99 SCHEDULING ORDER: IT IS SO ORDERED THAT: The deadline for the exchange of rebuttal expert reports is October 12, 2018; The deadline for the completion of expert discovery is November 2, 2018; The briefing schedule for the submission of motions to preclude evidence pursuant to Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), if any, is as follows: a. Opening briefs filed by November 21, 2018; b. Opposition briefs filed by December 20, 2018; and c. Reply briefs filed by January 4, 2019. [Or, in the alternative, if the court prefers to consider Daubert motions as part of any dispositive motion practice] The briefing schedule for the submission of dispositive motions and motions to preclude evidence pursuant to Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), if any, is as follows: a. Opening briefs filed by November 30, 2018; b. Opposition briefs filed by January 4, 2019; and c. Reply briefs filed by January 25, 2019. (Motions due by 11/30/2018. Responses due by 1/4/2019 Replies due by 1/25/2019.) (Signed by Judge Robert W. Sweet on 10/4/2018) (anc) (Entered: 10/07/2018)
100 SCHEDULING ORDER: NOW, THEREFORE, IT IS SO ORDERED THAT:The deadline for the completion of expert discovery is November 2, 2018; The briefing schedule for the submission of dispositive motions and motions to preclude evidence pursuant to Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), if any, is as follows: Opening briefs filed by November 30, 2018; Opposition briefs filed by January 4, 2019; and Reply briefs filed by January 25, 2019. (Motions due by 11/30/2018. Responses due by 1/4/2019 Replies due by 1/25/2019. Expert Discovery due by 11/2/2018.) (Signed by Judge Robert W. Sweet on 10/11/2018) (jca) (Entered: 10/15/2018)
101 LETTER MOTION for Discovery to Quash Subpoenas addressed to Judge Robert W. Sweet from Maia Goodell dated November 1, 2018. Document filed by Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan. Return Date set for 11/14/2018 at 12:00 PM. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Goodell, Maia) (Entered: 11/01/2018)
102 LETTER MOTION for Extension of Time to Complete Discovery addressed to Judge Robert W. Sweet from Maia Goodell dated November 2, 2018. Document filed by Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan.(Goodell, Maia) (Entered: 11/02/2018)
103 LETTER MOTION to Compel deposition testimony and in opposition to Plaintiffs' motion to quash subpoenas addressed to Judge Robert W. Sweet from Helene R. Hechtkopf dated November 2, 2018. Document filed by Veronique Hakim, Darryl C. Irick, Metropolitan Transportation Authority, New York City Transit Authority. Return Date set for 11/14/2018 at 12:00 PM. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Silverberg, Steven) (Entered: 11/02/2018)
104 ORDER: Plaintiff's motion to quash, dated November 2, 2018, shall be heard at 12:00PM on Wednesday, November 28, 2018 in Courtroom 18C, United States Courthouse, 500 Pearl Street. Papers are to be served in accordance with Local Civil Rule 6.1. It is so ordered. Set Deadlines/Hearing as to 101 LETTER MOTION for Discovery to Quash Subpoenas addressed to Judge Robert W. Sweet from Maia Goodell dated November 1, 2018. (Motion Hearing set for 11/28/2018 at 12:00 PM in Courtroom 18C, 500 Pearl Street, New York, NY 10007 before Judge Robert W. Sweet.) (Signed by Judge Robert W. Sweet on 11/5/2018) (rro) (Entered: 11/05/2018)
105 ORDER with respect to 103 Letter Motion to Compel. Defendant's motion to compel, dated November 2, 2018, shall be heard at 12:00 PM on Wednesday, November 28, 2018 in Courtroom 18C, United States Courthouse, 500 Pearl Street. Papers are to be served in accordance with Local Civil Rule 6.1. It is so ordered. (Signed by Judge Robert W. Sweet on 11/5/2018) (js) (Entered: 11/07/2018)

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106 LETTER RESPONSE in Opposition to Motion addressed to Judge Robert W. Sweet from Ira J. Lipton dated November 8, 2018 re: 102 LETTER MOTION for Extension of Time to Complete Discovery addressed to Judge Robert W. Sweet from Maia Goodell dated November 2, 2018. . Document filed by Veronique Hakim, Darryl C. Irick, Metropolitan Transportation Authority, New York City Transit Authority. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9)(Manber, Miriam) (Entered: 11/08/2018)
107 LETTER MOTION for Extension of Time to Complete Discovery addressed to Judge Robert W. Sweet from Maia Goodell dated November 13, 2018. Document filed by Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan. (Attachments: # 1 Exhibit)(Goodell, Maia) (Entered: 11/13/2018)
108 JOINT LETTER MOTION for Extension of Time to file Summary Judgment and Daubert Motions addressed to Judge Robert W. Sweet from Ira J. Lipton dated 11/16/2018. Document filed by Veronique Hakim, Darryl C. Irick, Metropolitan Transportation Authority, New York City Transit Authority.(Lipton, Ira) (Entered: 11/16/2018)
109 ORDER: granting 108 Letter Motion for Extension of Time. SO ORDERED. (Signed by Judge Robert W. Sweet on 11/19/2018) (ama) (Entered: 11/20/2018)
Minute Entry for proceedings held before Judge Robert W. Sweet: Oral Argument held on 11/28/2018 re: 103 LETTER MOTION to Compel deposition testimony and in opposition to Plaintiffs' motion to quash subpoenas addressed to Judge Robert W. Sweet from Helene R. Hechtkopf dated November 2, 2018. filed by Darryl C. Irick, Metropolitan Transportation Authority, Veronique Hakim, New York City Transit Authority. Motion Granted. (Chan, Tsz) (Entered: 11/28/2018)
110 TRANSCRIPT of Proceedings re: motion held on 11/28/2018 before Judge Robert W. Sweet. Court Reporter/Transcriber: Vincent Bologna, (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 12/27/2018. Redacted Transcript Deadline set for 1/7/2019. Release of Transcript Restriction set for 3/6/2019.(McGuirk, Kelly) (Entered: 12/06/2018)
111 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a motion proceeding held on 11/28/18 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: 12/06/2018)
112 PRETRIAL ORDER: (Pretrial Conference set for 1/15/2019 at 12:00 PM in Courtroom 18C, 500 Pearl Street, New York, NY 10007 before Judge Robert W. Sweet.) (Signed by Judge Robert W. Sweet on 12/13/2018) (js) (Entered: 12/13/2018)
113 JOINT LETTER MOTION to Adjourn Conference without date addressed to Judge Robert W. Sweet from Steven M. Silverberg dated December 18, 2018. Document filed by Veronique Hakim, Darryl C. Irick, Metropolitan Transportation Authority, New York City Transit Authority.(Silverberg, Steven) (Entered: 12/18/2018)
114 ORDER granting 113 Letter Motion to Adjourn Conference: So ordered. (Signed by Judge Robert W. Sweet on 12/19/2018) (jwh) (Entered: 12/20/2018)
115 LETTER MOTION for Discovery seeking preclusion of Plaintiffs' three new experts addressed to Judge Robert W. Sweet from Ira J. Lipton dated February 7, 2019. Document filed by Veronique Hakim, Darryl C. Irick, Metropolitan Transportation Authority, New York City Transit Authority. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Silverberg, Steven) (Entered: 02/07/2019)

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116 LETTER RESPONSE in Opposition to Motion addressed to Judge Robert W. Sweet from Maia Goodell dated February 14, 2019 re: 115 LETTER MOTION for Discovery seeking preclusion of Plaintiffs' three new experts addressed to Judge Robert W. Sweet from Ira J. Lipton dated February 7, 2019. . Document filed by Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan. (Goodell, Maia) (Entered: 02/14/2019)
117 LETTER REPLY to Response to Motion addressed to Judge Robert W. Sweet from Ira J. Lipton dated February 19, 2019 re: 115 LETTER MOTION for Discovery seeking preclusion of Plaintiffs' three new experts addressed to Judge Robert W. Sweet from Ira J. Lipton dated February 7, 2019. . Document filed by Veronique Hakim, Darryl C. Irick, Metropolitan Transportation Authority, New York City Transit Authority. (Manber, Miriam) (Entered: 02/19/2019)
118 ORDER: Defendant's motion to strike, dated February 07, 2019 shall be marked fully submitted on March 6, 2019 and taken on submission. It is so ordered. (Signed by Judge Robert W. Sweet on 2/21/2019) (ks) (Entered: 02/22/2019)
***DELETED DOCUMENT. Deleted document number 119 . The document was incorrectly filed in this case. (ne) (Entered: 03/29/2019)
122 DIRECTION TO THE BAR AND INTERIM ORDER OF REFERENCE: The Hon. Robert W. Sweet of this court having died on March 24, 2019; and Time being needed in order to effect the reassignment of the cases on his docket: IT IS HEREBY ORDERED THAT, pending the reassignment of Judge Sweet's civil cases, all urgent matters should be taken either to the Magistrate Judge who is assigned to the case or to the District Judge sitting in Part I. In cases in which Judge Sweet did not sign an order of reference, this order operates as an interim order of reference to the Magistrate Judge for interim pre−trial supervision. Routine case management requests (such as, for extension of time) should be directed to the Magistrate Judge, not to the Part I Judge. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for General Pretrial (includes scheduling, discovery, non−dispositive pretrial motions, and settlement). Referred to Magistrate Judge Debra C. Freeman. (Signed by Judge Colleen McMahon on 3/27/2019) (ne) (Entered: 03/29/2019)
120 LETTER addressed to Judge Colleen McMahon from Maia Goodell dated March 28, 2019 re: Requesting a Trial Date be Set as Soon as a New Judge is Assigned. Document filed by Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan.(Goodell, Maia) (Entered: 03/28/2019)
121 LETTER addressed to Judge Colleen McMahon from Ira J. Lipton dated March 28, 2019 re: Response to Plaintiffs' March 28 Letter. Document filed by Veronique Hakim, Darryl C. Irick, Metropolitan Transportation Authority, New York City Transit Authority.(Manber, Miriam) (Entered: 03/28/2019)
123 NOTICE OF APPEARANCE by Robert James Boller on behalf of TransitCenter. (Boller, Robert) (Entered: 04/01/2019)
124 NOTICE OF APPEARANCE by Lauren Kelley Ross on behalf of TransitCenter. (Ross, Lauren) (Entered: 04/01/2019)
125 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by TransitCenter.(Ross, Lauren) (Entered: 04/01/2019)
126 FILING ERROR − WRONG EVENT TYPE SELECTED FROM MENU − LETTER MOTION for Discovery / Quash the Subpoena addressed to Magistrate Judge Debra C. Freeman from Lauren K. Ross dated April 1, 2019. Document filed by TransitCenter. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Ross, Lauren) Modified on 5/21/2019 (ldi). (Entered: 04/01/2019)
127 JOINT LETTER MOTION for Extension of Time to File response to motion to quash subpoena (See Docket Entry No. 126) on behalf of Defendants and non−party

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TransitCenter addressed to Magistrate Judge Debra C. Freeman from Steven M. Silverberg dated April 3, 2019. Document filed by Veronique Hakim, Darryl C. Irick, Metropolitan Transportation Authority, New York City Transit Authority.(Silverberg, Steven) (Entered: 04/03/2019)
NOTICE OF CASE REASSIGNMENT to Judge George B. Daniels. Judge Robert W. Sweet is no longer assigned to the case. (sjo) (Entered: 04/08/2019)
128 PROPOSED PROTECTIVE ORDER. Document filed by Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan. (Goodell, Maia) (Entered: 04/09/2019)
129 ORDER: A status conference is scheduled for April 25, 2019 at 9:45 a.m. (Status Conference set for 4/25/2019 at 9:45 AM before Judge George B. Daniels.) (Signed by Judge George B. Daniels on 4/10/2019) (js) (Entered: 04/10/2019)
130 MEMO ENDORSEMENT on NON−DISCLOSURE AGREEMENT. ENDORSEMENT: SO ORDERED. (Signed by Judge George B. Daniels on 4/10/2019) (mro) (Entered: 04/10/2019)
131 STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material... (Signed by Judge George B. Daniels on 4/10/2019) (mro) (Entered: 04/10/2019)
132 LETTER addressed to Judge George B. Daniels from Maia Goodell dated April 11, 2019 re: Adjournment of Conference Request. Document filed by Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan.(Goodell, Maia) (Entered: 04/11/2019)
133 MEMO ENDORSEMENT on re: 132 Letter, filed by Center for Independence of the Disabled, New York, Brooklyn Center for Independence of the Disabled, Harlem Independent Living Center, Sasha Blair−Goldensohn, New York Statewide Senior Action Council, Disabled In Action of Metropolitan New York, Chris Pangilinan, Dustin Jones, Bronx Independent Living Services. ENDORSEMENT: The status conference is adjourned from April 25, 2019 at May 2, 2019 at 9:45 a.m. (Status Conference set for 5/2/2019 at 09:45 AM before Judge George B. Daniels.) (Signed by Judge George B. Daniels on 4/12/2019) (cf) (Entered: 04/12/2019)
134 LETTER addressed to Judge George B. Daniels from Lauren K. Ross dated April 23, 2019 re: Withdrawing Motion to Quash. Document filed by TransitCenter.(Ross, Lauren) (Entered: 04/23/2019)
135 ORDER: withdrawing 126 Letter Motion for Discovery; terminating 127 Letter Motion for Extension of Time to File. In light of TransitCenter's April 23, 2019 letter withdrawing its Motion to Quash Defendant New York City Transit Authority's February 25, 2019 subpoena, the Clerk of Court is directed to close ECF Nos. 126 and 127, accordingly. SO ORDERED. (Signed by Judge George B. Daniels on 4/24/2019) (ama) (Entered: 04/24/2019)
Minute Entry for proceedings held before Judge George B. Daniels: Status Conference held on 5/2/2019, ( Status Conference set for 8/15/2019 at 09:45 AM in Courtroom 11A, 500 Pearl Street, New York, NY 10007 before Judge George B. Daniels.). Plaintiff Counsel: Maia Beth Goodell, Michelle Anne Caiola, Emily Seelenfreund, Daniel L. Brown Defense Counsel: Helene Rachel Hechtkopf, Ira Jonathan Lipton, Miriam Jerry Manber, Steven Mark Silverberg and Court Reporter present. (Vega, Elizabeth) (Entered: 05/06/2019)
136 TRANSCRIPT of Proceedings re: conference held on 5/2/2019 before Judge George B. Daniels. Court Reporter/Transcriber: Khristine Sellin, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court

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Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 6/10/2019. Redacted Transcript Deadline set for 6/20/2019. Release of Transcript Restriction set for 8/19/2019.(McGuirk, Kelly) (Entered: 05/20/2019)
137 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a conference proceeding held on 5/2/19 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 05/20/2019)
138 ORDER terminating 102 Motion for Extension of Time to Complete Discovery; terminating 103 Motion to Compel; terminating 107 Motion for Extension of Time to Complete Discovery; terminating 115 Motion for Discovery. The Clerk of Court is directed to close the motions at ECF Nos. 102, 103, 107, and 115, as these motions were resolved at the May 2, 2019 status conference. SO ORDERED. (Signed by Judge George B. Daniels on 5/28/2019) (ks) Modified on 5/28/2019 (ks). (Entered: 05/28/2019)
139 ORDER terminating 92 Motion to Compel; terminating 101 Letter Motion for Discovery: The Clerk of Court is directed to close the motions at ECF Nos. 92 and 101, as these motions were resolved at the November 28, 2018 status conference before the late Judge Sweet. (Signed by Judge George B. Daniels on 6/4/2019) (jwh) (Entered: 06/04/2019)
140 MOTION for JAMES L. KERWIN to Withdraw as Attorney for Defendants MTA, NYCTA, Veronique Hakim and Darryl C. Irick. Document filed by Veronique Hakim, Darryl C. Irick, Metropolitan Transportation Authority, New York City Transit Authority.(Kerwin, James) (Entered: 07/16/2019)
141 MEMO ENDORSEMENT on MOTION TO WITHDRAW AS COUNSEL. ENDORSEMENT: So ordered. Granting 140 Motion to Withdraw as Attorney. Attorney James Luke Kerwin terminated. (Signed by Judge George B. Daniels on 7/17/2019) (rjm) (Entered: 07/17/2019)
142 MOTION for Partial Summary Judgment . Document filed by Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan.(Caiola, Michelle) (Entered: 08/09/2019)
143 MEMORANDUM OF LAW in Support re: 142 MOTION for Partial Summary Judgment . . Document filed by Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan. (Caiola, Michelle) (Entered: 08/09/2019)
144 FILING ERROR − DEFICIENT DOCKET ENTRY (SEE 163 Declaration) − DECLARATION of Michelle Caiola in Support re: 142 MOTION for Partial Summary Judgment .. Document filed by Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2 Part 1, # 3 Exhibit 2 Part 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19, # 21 Exhibit 20, # 22 Exhibit 21, # 23 Exhibit 22, # 24 Exhibit 23, # 25 Exhibit 24, # 26 Exhibit 25, # 27 Exhibit 26, # 28 Exhibit 27, # 29 Exhibit 28, # 30 Exhibit 29, # 31 Exhibit 30, # 32 Exhibit 31, # 33 Exhibit 32, # 34 Exhibit 33, # 35 Exhibit 34 Part 1, # 36 Exhibit 34 Part 2, # 37 Exhibit 35, # 38 Exhibit 36, # 39 Exhibit 37, # 40 Exhibit 38, # 41 Exhibit 39, # 42 Exhibit 40, # 43 Exhibit 41, # 44 Exhibit 42 Part 1, # 45 Exhibit 42 Part 2, # 46

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Exhibit 42 Part 3, # 47 Exhibit 42 Part 4, # 48 Exhibit 44, # 49 Exhibit 45, # 50 Exhibit 46, # 51 Exhibit 47, # 52 Exhibit 48, # 53 Exhibit 49, # 54 Exhibit 50, # 55 Exhibit 51, # 56 Exhibit 52, # 57 Exhibit 53, # 58 Exhibit 54, # 59 Exhibit 55, # 60 Exhibit 56, # 61 Exhibit 57, # 62 Exhibit 58, # 63 Exhibit 59, # 64 Exhibit 60, # 65 Exhibit 61, # 66 Exhibit 62, # 67 Exhibit 63, # 68 Exhibit 64, # 69 Exhibit 65, # 70 Exhibit 66, # 71 Exhibit 67, # 72 Exhibit 68, # 73 Exhibit 69, # 74 Exhibit 70, # 75 Exhibit 71, # 76 Exhibit 72, # 77 Exhibit 73, # 78 Exhibit 74, # 79 Exhibit 75, # 80 Exhibit 76, # 81 Exhibit 77, # 82 Exhibit 78, # 83 Exhibit 79, # 84 Exhibit 80)(Caiola, Michelle) Modified on 8/13/2019 (db). (Entered: 08/09/2019)
145 DECLARATION of Chris Pangilinan in Support re: 142 MOTION for Partial Summary Judgment .. Document filed by Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan. (Attachments: # 1 Exhibit 1)(Caiola, Michelle) (Entered: 08/09/2019)
146 DECLARATION of Dustin Jones in Support re: 142 MOTION for Partial Summary Judgment .. Document filed by Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan. (Caiola, Michelle) (Entered: 08/09/2019)
147 DECLARATION of Edith Prentiss in Support re: 142 MOTION for Partial Summary Judgment .. Document filed by Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan. (Caiola, Michelle) (Entered: 08/09/2019)
148 DECLARATION of Monica Bartley in Support re: 142 MOTION for Partial Summary Judgment .. Document filed by Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan. (Caiola, Michelle) (Entered: 08/09/2019)
149 DECLARATION of Sasha Blair−Goldensohn in Support re: 142 MOTION for Partial Summary Judgment .. Document filed by Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan. (Caiola, Michelle) (Entered: 08/09/2019)
150 RULE 56.1 STATEMENT. Document filed by Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan. (Caiola, Michelle) (Entered: 08/09/2019)
151 MOTION in Limine to exclude expert testimony of Dennis W. Olson. Document filed by Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan.(Caiola, Michelle) (Entered: 08/09/2019)
152 MEMORANDUM OF LAW in Support re: 151 MOTION in Limine to exclude expert testimony of Dennis W. Olson. . Document filed by Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan. (Caiola, Michelle) (Entered:

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08/09/2019)
153 MOTION to Preclude Plaintiffs' Experts. Document filed by Veronique Hakim, Darryl C. Irick, Metropolitan Transportation Authority, New York City Transit Authority.(Silverberg, Steven) (Entered: 08/09/2019)
154 DECLARATION of Ira J. Lipton in Support re: 153 MOTION to Preclude Plaintiffs' Experts.. Document filed by Veronique Hakim, Darryl C. Irick, Metropolitan Transportation Authority, New York City Transit Authority. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37)(Silverberg, Steven) (Entered: 08/09/2019)
155 DECLARATION of Dr. Alan J. Salzberg in Support re: 153 MOTION to Preclude Plaintiffs' Experts.. Document filed by Veronique Hakim, Darryl C. Irick, Metropolitan Transportation Authority, New York City Transit Authority. (Silverberg, Steven) (Entered: 08/09/2019)
156 MEMORANDUM OF LAW in Support re: 153 MOTION to Preclude Plaintiffs' Experts. . Document filed by Veronique Hakim, Darryl C. Irick, Metropolitan Transportation Authority, New York City Transit Authority. (Silverberg, Steven) (Entered: 08/09/2019)
157 MOTION for Summary Judgment . Document filed by Veronique Hakim, Darryl C. Irick, Metropolitan Transportation Authority, New York City Transit Authority.(Manber, Miriam) (Entered: 08/09/2019)
158 DECLARATION of Ira J. Lipton in Support re: 157 MOTION for Summary Judgment .. Document filed by Veronique Hakim, Darryl C. Irick, Metropolitan Transportation Authority, New York City Transit Authority. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15)(Manber, Miriam) (Entered: 08/09/2019)
159 DECLARATION of Mathew Varghese in Support re: 157 MOTION for Summary Judgment .. Document filed by Veronique Hakim, Darryl C. Irick, Metropolitan Transportation Authority, New York City Transit Authority. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Manber, Miriam) (Entered: 08/09/2019)
160 DECLARATION of Alan J. Salzberg in Support re: 157 MOTION for Summary Judgment .. Document filed by Veronique Hakim, Darryl C. Irick, Metropolitan Transportation Authority, New York City Transit Authority. (Manber, Miriam) (Entered: 08/09/2019)
161 RULE 56.1 STATEMENT. Document filed by Veronique Hakim, Darryl C. Irick, Metropolitan Transportation Authority, New York City Transit Authority. (Manber, Miriam) (Entered: 08/09/2019)
162 MEMORANDUM OF LAW in Support re: 157 MOTION for Summary Judgment . . Document filed by Veronique Hakim, Darryl C. Irick, Metropolitan Transportation Authority, The City Of New York,. (Manber, Miriam) (Entered: 08/09/2019)
163 DECLARATION of Michelle Caiola in Support re: 142 MOTION for Partial Summary Judgment .. Document filed by Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2 Part 1, # 3 Exhibit 2 Part 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19, # 21 Exhibit 20, # 22 Exhibit 21, #

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23 Exhibit 22, # 24 Exhibit 23, # 25 Exhibit 24, # 26 Exhibit 25, # 27 Exhibit 26, # 28 Exhibit 27, # 29 Exhibit 28, # 30 Exhibit 29, # 31 Exhibit 30, # 32 Exhibit 31, # 33 Exhibit 32, # 34 Exhibit 33, # 35 Exhibit 34 Part 1, # 36 Exhibit 34 Part 2, # 37 Exhibit 35, # 38 Exhibit 36, # 39 Exhibit 37, # 40 Exhibit 38, # 41 Exhibit 39, # 42 Exhibit 40, # 43 Exhibit 41, # 44 Exhibit 42 Part 1, # 45 Exhibit 42 Part 2, # 46 Exhibit 42 Part 3, # 47 Exhibit 42 Part 4, # 48 Exhibit 43, # 49 Exhibit 44, # 50 Exhibit 45, # 51 Exhibit 46, # 52 Exhibit 47, # 53 Exhibit 48, # 54 Exhibit 49, # 55 Exhibit 50, # 56 Exhibit 51, # 57 Exhibit 52, # 58 Exhibit 53, # 59 Exhibit 54, # 60 Exhibit 55, # 61 Exhibit 56, # 62 Exhibit 57, # 63 Exhibit 58, # 64 Exhibit 59, # 65 Exhibit 60, # 66 Exhibit 61, # 67 Exhibit 62, # 68 Exhibit 63, # 69 Exhibit 64, # 70 Exhibit 65, # 71 Exhibit 66, # 72 Exhibit 67, # 73 Exhibit 68, # 74 Exhibit 69, # 75 Exhibit 70, # 76 Exhibit 71, # 77 Exhibit 72, # 78 Exhibit 73, # 79 Exhibit 74, # 80 Exhibit 75, # 81 Exhibit 76, # 82 Exhibit 77, # 83 Exhibit 78, # 84 Exhibit 79, # 85 Exhibit 80)(Goodell, Maia) (Entered: 08/12/2019)
Minute Entry for proceedings held before Judge George B. Daniels: Status Conference held on 8/15/2019, ( Oral Argument set for 10/24/2019 at 10:30 AM in Courtroom 11A, 500 Pearl Street, New York, NY 10007 before Judge George B. Daniels.). Plaintiff Counsel: Maia Beth Goodell, Emily Seelenfreund, Michelle Anne Caiola; Defense Counsel: Helene Rachel Hechtkopf, Ira Jonathan Lipton, Miriam Jerry Manber, Steven Mark Silverberg and Court Reporter present. (Vega, Elizabeth) (Entered: 08/15/2019)
164 DECLARATION of Sarah Librera in Support re: 157 MOTION for Summary Judgment .. Document filed by Veronique Hakim, Darryl C. Irick, Metropolitan Transportation Authority, New York City Transit Authority. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Manber, Miriam) (Entered: 09/05/2019)
165 TRANSCRIPT of Proceedings re: CONFERENCE held on 8/15/2019 before Judge George B. Daniels. Court Reporter/Transcriber: Karen Gorlaski, (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 10/1/2019. Redacted Transcript Deadline set for 10/11/2019. Release of Transcript Restriction set for 12/9/2019.(McGuirk, Kelly) (Entered: 09/10/2019)
166 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 8/15/19 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: 09/10/2019)
167 COUNTER STATEMENT TO 150 Rule 56.1 Statement,. Document filed by Veronique Hakim, Darryl C. Irick, Metropolitan Transportation Authority, New York City Transit Authority. (Silverberg, Steven) (Entered: 09/13/2019)
168 DECLARATION of Ira J. Lipton in Opposition re: 151 MOTION in Limine to exclude expert testimony of Dennis W. Olson., 142 MOTION for Partial Summary Judgment .. Document filed by Veronique Hakim, Darryl C. Irick, Metropolitan Transportation Authority, New York City Transit Authority. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9)(Silverberg, Steven) (Entered: 09/13/2019)
169 DECLARATION of Mathew Varghese in Opposition re: 142 MOTION for Partial Summary Judgment .. Document filed by Veronique Hakim, Darryl C. Irick, Metropolitan Transportation Authority, New York City Transit Authority. (Silverberg, Steven) (Entered: 09/13/2019)
170 DECLARATION of Shoshana Cooper in Opposition re: 142 MOTION for Partial Summary Judgment .. Document filed by Veronique Hakim, Darryl C. Irick, Metropolitan Transportation Authority, New York City Transit Authority. (Attachments: # 1 Exhibit A)(Silverberg, Steven) (Entered: 09/13/2019)
171 MEMORANDUM OF LAW in Opposition re: 142 MOTION for Partial Summary Judgment . . Document filed by Veronique Hakim, Darryl C. Irick, Metropolitan

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Transportation Authority, New York City Transit Authority. (Silverberg, Steven) (Entered: 09/13/2019)
172 MEMORANDUM OF LAW in Opposition re: 151 MOTION in Limine to exclude expert testimony of Dennis W. Olson. . Document filed by Veronique Hakim, Darryl C. Irick, Metropolitan Transportation Authority, New York City Transit Authority. (Silverberg, Steven) (Entered: 09/13/2019)
173 DECLARATION of Michelle Caiola in Opposition re: 157 MOTION for Summary Judgment .. Document filed by Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30)(Caiola, Michelle) (Entered: 09/13/2019)
174 MEMORANDUM OF LAW in Opposition re: 157 MOTION for Summary Judgment . . Document filed by Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan. (Caiola, Michelle) (Entered: 09/13/2019)
175 FILING ERROR − DEFICIENT DOCKET ENTRY (SEE 181 Declaration) − DECLARATION of Sasha Blair−Goldensohn in Opposition re: 157 MOTION for Summary Judgment . Document filed by Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Caiola, Michelle) Modified on 9/17/2019 (db). (Entered: 09/13/2019)
176 DECLARATION of Dustin Jones in Opposition re: 157 MOTION for Summary Judgment .. Document filed by Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan. (Caiola, Michelle) (Entered: 09/13/2019)
177 COUNTER STATEMENT TO 161 Rule 56.1 Statement. Document filed by Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan. (Caiola, Michelle) (Entered: 09/13/2019)
178 MEMORANDUM OF LAW in Opposition re: 153 MOTION to Preclude Plaintiffs' Experts. . Document filed by Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan. (Caiola, Michelle) (Entered: 09/13/2019)
179 DECLARATION of Andrew Schwarz in Opposition re: 153 MOTION to Preclude Plaintiffs' Experts.. Document filed by Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan. (Caiola, Michelle) (Entered: 09/13/2019)
180 DECLARATION of David Rishel in Opposition re: 153 MOTION to Preclude Plaintiffs' Experts.. Document filed by Sasha Blair−Goldensohn, Bronx Independent

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Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan. (Caiola, Michelle) (Entered: 09/13/2019)
181 DECLARATION of Sasha Blair−Goldensohn in Opposition re: 157 MOTION for Summary Judgment .. Document filed by Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Caiola, Michelle) (Entered: 09/16/2019)
182 REPLY MEMORANDUM OF LAW in Support re: 151 MOTION in Limine to exclude expert testimony of Dennis W. Olson. . Document filed by Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan. (Caiola, Michelle) (Entered: 10/11/2019)
183 COUNTER STATEMENT TO Document filed by Veronique Hakim, Darryl C. Irick, Metropolitan Transportation Authority, New York City Transit Authority. (Manber, Miriam) (Entered: 10/11/2019)
184 DECLARATION of Ira J. Lipton in Support re: 157 MOTION for Summary Judgment .. Document filed by Veronique Hakim, Darryl C. Irick, Metropolitan Transportation Authority, New York City Transit Authority. (Attachments: # 1 Exhibit 1)(Manber, Miriam) (Entered: 10/11/2019)
185 DECLARATION of Alan J. Salzberg in Support re: 153 MOTION to Preclude Plaintiffs' Experts., 157 MOTION for Summary Judgment .. Document filed by Veronique Hakim, Darryl C. Irick, Metropolitan Transportation Authority, New York City Transit Authority. (Manber, Miriam) (Entered: 10/11/2019)
186 REPLY MEMORANDUM OF LAW in Support re: 153 MOTION to Preclude Plaintiffs' Experts. . Document filed by Veronique Hakim, Darryl C. Irick, Metropolitan Transportation Authority, New York City Transit Authority. (Manber, Miriam) (Entered: 10/11/2019)
187 REPLY MEMORANDUM OF LAW in Support re: 157 MOTION for Summary Judgment . . Document filed by Veronique Hakim, Darryl C. Irick, Metropolitan Transportation Authority, New York City Transit Authority. (Manber, Miriam) (Entered: 10/11/2019)
188 REPLY MEMORANDUM OF LAW in Support re: 142 MOTION for Partial Summary Judgment . . Document filed by Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan. (Caiola, Michelle) (Entered: 10/11/2019)
189 DECLARATION of Michelle Caiola in Support re: 142 MOTION for Partial Summary Judgment .. Document filed by Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan. (Caiola, Michelle) (Entered: 10/11/2019)
190 REPLY MEMORANDUM OF LAW in Support re: 153 MOTION to Preclude Plaintiffs' Experts. (Corrected version of Document 186 containing attorney signature). Document filed by Veronique Hakim, Darryl C. Irick, Metropolitan Transportation Authority, New York City Transit Authority. (Manber, Miriam) (Entered: 10/11/2019)

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Minute Entry for proceedings held before Judge George B. Daniels: Oral Argument held on 10/24/2019 re: 142 MOTION for Partial Summary Judgment . filed by Center for Independence of the Disabled, New York, Brooklyn Center for Independence of the Disabled, Harlem Independent Living Center, Sasha Blair−Goldensohn, New York Statewide Senior Action Council, Disabled In Action of Metropolitan New York, Chris Pangilinan, Dustin Jones, Bronx Independent Living Services, 151 MOTION in Limine to exclude expert testimony of Dennis W. Olson. filed by Center for Independence of the Disabled, New York, Brooklyn Center for Independence of the Disabled, Harlem Independent Living Center, Sasha Blair−Goldensohn, New York Statewide Senior Action Council, Disabled In Action of Metropolitan New York, Chris Pangilinan, Dustin Jones, Bronx Independent Living Services, 153 MOTION to Preclude Plaintiffs' Experts. filed by Metropolitan Transportation Authority, Veronique Hakim, New York City Transit Authority, Darryl C. Irick, 157 MOTION for Summary Judgment . filed by Metropolitan Transportation Authority, Veronique Hakim, New York City Transit Authority, Darryl C. Irick. Plaintiff Counsel: Maia Beth Goodell, Michelle Anne Caiola, Rebecca Juliet Rodgers, Emily Seelenfreund Defense Counsel: Helene Rachel Hechtkopf, Ira Jonathan Lipton, Miriam Jerry Manber, Steven Mark Silverberg and Court Reporter present. (Vega, Elizabeth) (Entered: 10/25/2019)
191 TRANSCRIPT of Proceedings re: conference held on 10/24/2019 before Judge George B. Daniels. Court Reporter/Transcriber: Kelly Surina, (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 12/5/2019. Redacted Transcript Deadline set for 12/16/2019. Release of Transcript Restriction set for 2/12/2020.(McGuirk, Kelly) (Entered: 11/14/2019)
192 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a conference proceeding held on 10/24/19 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: 11/14/2019)
193 PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW. Document filed by Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan.(Caiola, Michelle) (Entered: 11/14/2019)
194 LETTER addressed to Judge George B. Daniels from Ira J. Lipton dated November 18, 2019 re: Plaintiffs' Proposed Findings of Fact and Conclusions of Law (docket entry 193). Document filed by Veronique Hakim, Darryl C. Irick, Metropolitan Transportation Authority, New York City Transit Authority.(Manber, Miriam) (Entered: 11/18/2019)
195 LETTER addressed to Judge George B. Daniels from Michelle Caiola dated November 19, 2019 re: Plaintiffs' Response to ECF No. 194. Document filed by Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan.(Caiola, Michelle) (Entered: 11/19/2019)
196 PROPOSED ORDER FOR WITHDRAWAL OF ATTORNEY. Document filed by Sasha Blair−Goldensohn, Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Center for Independence of the Disabled, New York, Disabled In Action of Metropolitan New York, Harlem Independent Living Center, Dustin Jones, New York Statewide Senior Action Council, Chris Pangilinan. (Caiola, Michelle) (Entered: 11/20/2019)
197 ORDER FOR WITHDRAWAL OF ATTORNEY: Plaintiffs ask that the Court grant the withdrawal of Maia Goodell as counsel for Plaintiffs. IT IS SO ORDERED. (Attorney Maia Beth Goodell terminated.) (Signed by Judge George B. Daniels on

11/21/2019) (jwh) (Entered: 11/21/2019)