IATR — IN FOCUS
by Matthew W. Daus, Esq. President, International Association of Transportation Regulators Distinguished Lecturer, University Transportation Research Center, Region 2



Happy New Year everyone! With the coming year comes new, higher subway fares and lots of snow. I thought this would be a good time to talk about a very unique and interesting civil rights lawsuit involving disabled and senior citizen bus and subway passengers against the Metropolitan Transportation Authority (MTA) and New York City Transit Authority (NYCTA), known as Ryan, et al., v. NYCTA (Index #157685/2010).

On June 27, 2010, the MTA instituted what has been called its “Doomsday Budget Cuts”, driven by an unprecedented fiscal crisis which led to the agency’s implementation of massive bus and subway service reductions, line consolidations and even the elimination of certain bus lines. These cuts have affected virtually everyone, but some passengers protected by the civil rights laws, as well as certain neighborhoods, have felt the pain more than others. New York State Senator Marty Golden asked me last year to arrange for settlement talks with the MTA to attempt to resolve legal claims by passengers who are disabled wheelchair users and senior citizens against the MTA and NYCTA.

In the geographically and demographically unique neighborhood of Bay Ridge, Brooklyn, these plaintiffs, including Jean Ryan, Pamela Talkovsky and Jen Halbert, and many thousands of other affected senior and disabled passengers have been denied public accommodations, and now have more unequal service and less access to buses and subways than more ambulatory younger and non-disabled passengers. The plaintiffs have commenced a lawsuit that seeks an injunction to restore bus line service to various lines in Bay Ridge so that they may again have access to hospitals, government buildings and various points in Manhattan and beyond. In particular, some of the bus lines involved in the lawsuit include the elimination of X27/X28 weekend express bus service, elimination of the B37 extension to Lutheran Hospital and Downtown Brooklyn, as well as changes to the weekday Midtown/Downtown express bus service and B64 and B16 lines.

Given my extensive experience in transportation policy as well as civil rights law, I accepted this assignment to try and help the community and the city, especially since I happen to reside in Bay Ridge and see firsthand the unfortunate impact of these service cuts.

In addition to teaching transportation policy to graduate students at City College of the City University of New York, I have also served in government as the Commissioner and General Counsel of the NYC Taxi and Limousine Commission (TLC) and dealt with the MTA for over 14 years while a public servant. I have extensive experience in the field of civil rights law having worked as a Prosecutor for the New York City Human Rights Commission, published extensive law related articles, and having been awarded an advanced legal degree (Master of Laws) in this area from N.Y.U. Law School.

What is legally unique about this case is that it is a true case of first impression in New York that seeks to enforce State and Local Civil Rights Laws that have never before been interpreted or applied to similar facts. Rather than commence an action under the Federal Americans with Disabilities Act (ADA), an action was commenced in the New York State Supreme Court, Kings County alleging violations of the New York State and City Human Rights Laws. These State and City laws are intended to provide more legal protection than the ADA and define the term “disability” more broadly than Federal law. See Burton v. MTA, 244 F.Supp.2d 252, 258 (S.D.N.Y 2002). Both laws provide that it is discriminatory for any person to be denied a public accommodation who is a member of a protected class, and case law supports the application of these legal requirements to the MTA. See Bogdan v. NYCT, WL 1161812, 5 (S.D.N.Y. 2005); Staten Island Alliance for the Mentally Ill v. Mercado, 273 A.D.2d 36, 37 (1st Dept’t 2000); and Eastern Paralyzed Veterans Assoc. v. MTA, 79 A.D.2d 516, 517 (1st Dept. 1980).

The causes of action under Local Law include claims pursuant to Administrative Code §8-107(4) that the plaintiffs were denied a public accommodation (bus and subway service) due to their disability and age, and under §8-107(17)(a)(1) in that there is a “disparate impact” upon plaintiffs as well as the unique neighborhood where they reside. Bay Ridge, Brooklyn does not have any wheelchair accessible subway stations, and various bus lines that have been impacted and/or eliminated are more than five long city blocks from the nearest subway station. Unlike other communities around the city this neighborhood is a Naturally Occurring Retirement Community (NORC) with high levels of senior and disabled residents.

Jonathan Peters, Ph.D., a colleague and Professor affiliated with the City University of New York’s Transportation Research Center (Region 2), who teaches at the College of Staten Island provided affidavits and expert testimony on a pro bono basis. Professor Peters is an expert in Census analysis, Social Equity, Urban Economics, Public Finance and Transportation Policy, and he concluded that the Bay Ridge service cuts did involve discrimination and have a disparate impact on seniors and the disabled in violation of State and Local Human Rights Laws. He pointed out that 18% of Bay Ridge’s population are seniors residing in Bay Ridge as compared to the city wide average of 12%, and 25% of Bay Ridge residents are disabled as compared to other parts of the city, e.g., the Upper East Side of Manhattan which has only 11% of disabled residents but a plethora of wheelchair accessible subway stations when compared to all other boroughs of the City.

The disparate impact claim alleges that instead of making service reduction decisions based on “general ridership” statistics, as the MTA did in 2010, it had a legal obligation under civil rights laws to analyze senior and disabled ridership as well as demographic information to ascertain whether certain communities with higher levels of persons in protected classes did not receive disproportionate service cuts when compared to other communities and transit lines where there are less members of protected classes.

Relevant to the disparate impact claim is whether the MTA had other options or alternatives to the cuts in question, and Professor Peters has pointed out to the court that when balancing the equities of the situation, even a cash strapped organization like the MTA with its multi-billion dollar budget, has options to reallocate operating budget funds to prevent discriminatory impacts while plaintiffs have few options to get around, if at all. For example, certain projects could have been discontinued and certain programs such as Access-A-Ride (AAR), the MTA’s subsidized paratransit service could have been tailored or improved to provide more equal service for disabled and senior citizen passengers in Bay Ridge.

With regard to the New York State law claims, various provisions of the Executive Law consider it discrimination to deny a public accommodation to a passenger due to their disability [§296(2)(a)], to refuse to make “reasonable modifications” to policies necessary to provide services to the disabled [§296(2)(c)(i)], or to segregate or separate disabled passengers [§292(19)].

In addition to the overlap between the State and City laws plaintiffs claim they are basically segregated from the non-disabled population in that they formerly chose to ride the bus, and are now either entirely denied service or “more inconvenienced” than non-disabled passengers. Plaintiffs who otherwise qualify for AAR service previously chose to ride buses with wheelchair lifts, and now they must make reservations days in advance, or simply use a new “feeder service.”

According to the “feeder service,” instead of transporting a disabled passenger point-to-point from the beginning to the end of their trip, disabled passengers must instead take one AAR vehicle to an accessible subway stop then take the subway to the nearest station to their destination, and then again take another AAR vehicle that will meet the passenger at that subway stop and transport them to their final destination.

Also, under both City and State law claims, there are those passengers who do not meet the definition of being “disabled” under the ADA and who do not qualify for AAR service, but who meet the broader definition of “disability” under New York laws. For these passengers there unfortunately are no options, and they are basically “stranded” and segregated from the rest of the riding public.

While everyone realizes that the MTA has a very difficult task at hand in resolving its budget challenges this lawsuit is about “everyone feeling the pain equally” – not some more than others – especially those who are a member of a legally protected class under the civil rights laws. I have arranged for and had several meetings with the plaintiffs, local elected officials, Senator Golden and City Council Member Vincent Gentile, and MTA and NYCTA officials at the highest levels, and, to date, no settlement has been reached as the case progresses.

We believe the MTA did make modifications to the Downtown/Midtown express service where Bay Ridge residents formerly had more expeditious service directly to Midtown without needing to stop in Downtown Manhattan, but the changes are neither satisfactory to the plaintiffs, the community nor to Senator Golden. Meanwhile, legal briefs, arguments and evidence were submitted to the court and a decision on the preliminary injunction motion will be issued in the near future.

The case was originally assigned to Judge Ken Sherman, and now has been reassigned to Judge Sylvia Ash who will hopefully be rendering a decision on this potential landmark case very soon. A successful legal outcome here for the plaintiffs would change the way public transportation policy decisions are made forever in New York, and possibly around the country. However, I still am holding out hope that reasonable minds will prevail, and that a settlement or resolution may still be able to be reached.

Matthew W. Daus, Esq., counsel and head of the Transportation Practice Group at Windels, Marx, Lane & Mittendorf, LLP, was retained to attempt to settle a legal dispute between the Metropolitan Transportation Authority (MTA)and passengers claiming that bus service cuts in Brooklyn have a discriminatory impact on the disabled and senior citizens in violation of New York State and City Human Rights Laws. At a press conference in front of the New York State Supreme Court held on October 21st in downtown Brooklyn, joining various passengers are - left to right - Council Member Vincent Gentile, Professor Daus (speaking)and State Senator Marty Golden.