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ADA suit over MTA elevator-outages back on track – 2nd Circuit

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Stefan Henry boards the MTA elevator at Union Square, July 15, 2018. REUTERS/Nolan Ryan Trowe

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  • Plaintiffs say breakdowns are far worse at busy stations, peak hours

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(Reuters) - New York City subway riders with disabilities won another chance to show that peak-hour elevator breakdowns at high-volume stations deprive them of meaningful access to the transportation system, thanks to a federal appeals court decision Monday.

The 2nd U.S. Circuit Court of Appeals reinstated a certified class action filed in 2017 by lawyers at Disability Rights Advocates and Sheppard, Mullin, Richter & Hampton on behalf of three individuals and six nonprofit organizations, who say the system is shirking its duty to perform regular maintenance on the elevators.

A lower court granted summary judgment for the Metropolitan Transportation Authority and the New York City Transit Authority (referred to collectively as MTA), represented by Hoguet Newman Regal & Kenney, based on MTA’s undisputed evidence that, system-wide, elevators at ADA-accessible stations were operational at least 96.5 percent of the time.

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However, “averages can obscure variables,” and the plaintiffs had raised “a reasonable inference that, for some, access is not meaningful (assuming no accommodations),” Circuit Judge Dennis Jacobs wrote for the 2nd Circuit.

The plaintiffs’ evidence showed an outage rate of 8 percent to 15 percent at high-volume stations during peak hours; and, since getting to the desired platform can require up to four elevator rides, a daily commuter’s chance of encountering an “out-of-service” sign could be 50 percent or more.

The district court “erred by declining to separately consider such riders,” Jacobs wrote, joined by Circuit Judges Jose Cabranes and Steven Menashi.

Counsel for the transit authorities did not immediately respond to requests for comment on Monday.

Emily Seelenfreund of Disability Rights Advocates said her clients “appreciate the recognition … that the ‘meaningful access’ inquiry demands an examination of the impact of outages on real people's travel in the context of the system as a whole, as well as looking at the accommodations available during these frequent, unplanned outages.”

While fewer than one-fourth of the MTA’s 472 stations are ADA-accessible, the elevator-outage lawsuit concerns only those that are.

The plaintiffs are a class led by Sasha Blair-Goldensohn, Chris Pangilinan and Dustin Jones, and nonprofits Brooklyn Center for Independence of the Disabled; Bronx Independent Living Services; Harlem Independent Living Center; Center for Independence of the Disabled; Disabled in Action of Metropolitan New York; and New York Statewide Senior Action Council. They alleged violations of the Americans with Disabilities Act, the Rehabilitation Act, and the New York City Human Rights Law.

They drew amicus support from The National Disability Rights Network, TransitCenter, and Up-Stand.

On remand, the MTA can still prevail if it establishes that it offers reasonable accommodations to riders with disabilities when elevator outages prevent them from accessing their trains.

Both sides had offered evidence about accommodations, with the MTA relying primarily on its extensive and fully accessible bus-service network.

U.S. District Judge George Daniels had questioned whether a bus could be viewed as an “accommodation” for a subway train; however, he found it unnecessary to decide because he found no denial of subway service.

The 2nd Circuit said a bus is “an” accommodation - since, like the subway, “it is a means of getting from here to there” – but said the question of whether bus service is a reasonable accommodation is a factual question to be decided on remand.

The case is Brooklyn Center for Independence of the Disabled et al. v. Metropolitan Transportation Authority, New York City Transit Authority et al., 2nd U.S. Circuit Court of Appeals, No. 20-1433.

For Brooklyn Center for Independence of the Disabled et al.: Stuart Seaborn, Emily Seelenfreund and Jelena Kolic of Disability Rights Advocates; Daniel Brown of Sheppard, Mullin, Richter & Hampton

For MTA and NYCTA: Ira Lipton and Helene Hechtkopf of Hoguet Newman Regal & Kenney

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