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NELSON v. RYAN

July 29, 1994

DAVID NELSON, Plaintiff,
v.
JACK RYAN, Assistant Commissioner, New York State Department of Social Services, Commission for the Blind and Visually Handicapped, MARY JO BANE, Commissioner, New York State Department of Social Services, and JOSEPHINE L. GAMBINO, Commissioner, New York State Department of Civil Service, Defendants.


FOSCHIO


The opinion of the court was delivered by: LESLIE G. FOSCHIO

JURISDICTION

 The parties to this action executed a consent to proceed before the undersigned which was filed on July 29, 1992. The matter is presently before the court on Plaintiff's motion for summary judgment, filed December 16, 1992.

 Plaintiff filed this action on September 20, 1991 asserting claims under § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq., and a claim under 42 U.S.C. § 1983 for violations of his right to equal protection and due process. Plaintiff also filed a motion for class certification on the same date, but withdrew the motion on May 27, 1992, pursuant to a Stipulation and Order.

 Following a period of discovery, Plaintiff filed a motion for summary judgment, pursuant to Fed.R.Civ.P. 56, on December 16, 1992. In the summary judgment motion, Plaintiff requested an order declaring that Defendants' actions, policies, and procedures violated Plaintiff's statutory and constitutional rights; permanently enjoining Defendants from requiring that Plaintiff utilize personal, sick, vacation, or unpaid leave to obtain a new seeing eye guide dog, so long as Plaintiff's duties require that he travel outside the office; permanently enjoining Defendants from requiring Plaintiff to utilize such leave to obtain a new guide dog without first providing him notice and an opportunity for a hearing; and, directing Defendants to restore the sick, vacation, and personal leave credits used by Plaintiff during September and October, 1990 to obtain a new guide dog.

 Defendants filed their response on February 16, 1993. Defendants represented that there were no material facts in dispute. Further, although not filing a formal cross-motion for summary judgment, Defendants asserted that they were entitled to judgment as a matter of law. Plaintiffs thereafter filed a reply memorandum on March 15, 1993.

 Oral argument on the matter was held on April 1, 1993.

 For the reasons as set forth below, Plaintiff's motion for summary judgment is DENIED. Further, Defendant's cross-motion for summary judgment is GRANTED. *fn1"

 FACTS

 Plaintiff, David Nelson, has been legally blind since undergoing a surgical procedure at the age of 9. (T. 5). *fn2" From that time until Plaintiff became 18 years of age, Plaintiff did not use any assistance devices to give him greater mobility, (T. 6-8), however, during the summer of 1962, Plaintiff attended a rehabilitation center in New York City to obtain training using a cane, so that he would be able to attend college at the University of Rochester. (T. 7-11). From 1962 until 1978, Plaintiff utilized the cane for mobility.

 In February, 1978, Plaintiff obtained his first guide dog. (T. 15). Since that time, Plaintiff has used the guide dog for all "meaningful mobility," (T. 15), using a cane only in situations where a guide dog is not appropriate, such as at a movie theater or at a baseball game. (T. 16-18). Plaintiff does not use the dog in his residence, (T. 19), but uses the dog mainly as a mobility device outside of the house, for instance, in travelling to work on public transportation, or in attending outside activities. (T. 21-22).

 In February, 1981, Plaintiff became employed by the New York State Department of Social Services, Commission for the Blind and Visually Handicapped (CBVH) as a Rehabilitation Teacher/Instructor of the Blind. See Plaintiff's Notice of Motion, Affidavit of David Nelson, dated December 15, 1992, at p. 1, P 1; (T. 55-56). Plaintiff's job description requires him to provide individual instruction to blind persons in daily life activities, including basic homemaking, cooking skills, financial management, the use of Braille, and other necessary skills. See Affidavit of David Nelson, at p. 2, P 4; (T. 39). To perform his job, Plaintiff travels to his clients' homes mainly through the use of public transportation. See Affidavit of David Nelson, at p. 2, P 5. Plaintiff uses the guide dog to travel to the homes of his clients because it is quicker and more efficient. (T. 29). Plaintiff visits clients four to five days a week for generally half a day, with the remainder of the day spent in his office. (T. 43). The CBVH, as a reasonable accommodation, assigns Plaintiff to clients who, generally speaking, are all located along the route of public transportation so that Plaintiff can visit them independently. (T. 47, K.8). *fn3" The CBVH also provides that if public transportation ends a reasonable distance (more than a few blocks) from a client's home, Plaintiff can use a taxi to travel the remaining distance and be reimbursed for the fare. (K. 9).

 In October, 1989, Plaintiff's first guide dog, Boscoe, was put to sleep. See Affidavit of David Nelson, at p. 2, P 6. From that time, until January, 1990 when Plaintiff obtained a new dog, Plaintiff took taxis to his clients' homes, and used a cane. (T. 51-52). Plaintiff did not seek reimbursement for the taxi fares, nor did he inquire as to whether it would have been available. (T. 49-50).

 From January 2 through January 17, 1990, Plaintiff attended training for his new guide dog, Lorna, at the Seeing Eye, Inc. in New Jersey. See Affidavit of David Nelson, at p. 2, P 6. Plaintiff utilized sixteen days of vacation and floating holidays for that purpose, without requesting any other reasonable accommodation. See Affidavit of David Nelson, at p. 2, P 6. After Plaintiff returned with Lorna, however, Plaintiff began having difficulty with the dog, such as Lorna walking too fast, pulling too hard, and being afraid of the buses which Plaintiff used to travel to his clients' homes. (T. 59-60). Plaintiff attempted to work with Lorna until August, 1990, at which time Plaintiff began leaving Lorna at home, and utilizing a cane. (T. 61). After two weeks of leaving Lorna at home, Plaintiff returned the dog to the Seeing Eye, Inc. (T. 61). Plaintiff then again commenced using taxicabs and his cane to travel to his clients' homes. (T. 61). According to Plaintiff, it was much more difficult to travel with a cane than with a guide dog, as the dog allowed him to "travel to and from . . . various bus stops to ...


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