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CIVIC ASS'N OF THE DEAF OF NEW YORK CITY

February 9, 1996

THE CIVIC ASSOCIATION OF THE DEAF OF NEW YORK CITY, INC. (also known as the New York City Civic Association of the Deaf) and STEVEN G. YOUNGER, II, on behalf of themselves and all others similarly situated, Plaintiffs, against RUDOLPH GIULIANI, as Mayor of the City of New York, HOWARD SAFIR, as Commissioner of the Fire Department of the City of New York, CARLOS CUEVAS, as City Clerk and Clerk of the New York City Council, PETER VALLONE, as Speaker and Majority Leader of the New York City Council, THOMAS OGNIBENE, as Minority Leader of the New York City Council, and the CITY OF NEW YORK, Defendants.


The opinion of the court was delivered by: SWEET

 Sweet, D.J.

 In this class action brought pursuant to the Americans With Disabilities Act of 1990 (the "ADA"), 42 U.S.C. §§ 12101 et seq. (Supp. II 1991) and the regulations thereunder, the Equal Protection Clause of the Fourteenth Amendment, the Fifth Amendment, and the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1988), the plaintiffs, the Civic Association of the Deaf of New York City, Inc. ("NYCCAD") and Steven G. Younger II ("Younger") (collectively, "Plaintiffs"), seek 1) class certification; 2) a declaratory judgment; 3) a permanent injunction against Defendants Rudolph Giuliani, as Mayor of the City of New York (the "Mayor"), Howard Safir, as Commissioner of the Fire Department of the City of New York (the "Commissioner"), Carlos Cuevas, as City Clerk and Clerk of the New York City Council (the "Clerk"), Peter Vallone, as Speaker and Majority Leader of the New York City Council (the "Speaker"), Thomas Ognibene (the "Minority Leader"), as Minority Leader of the New York City Council, and the City of New York (the "City") (collectively, the "Defendants"), to prevent them from carrying out the removal of fire alarm boxes located on the streets of the City and replacing those boxes with notification alternatives which are not accessible to the deaf and hearing-impaired, and to require them to reconnect those street alarm boxes which have been deactivated or disconnected since September 21, 1995; and 4) attorney's fees and costs connected with this motion, pursuant to 29 U.S.C. § 794a (1988), 42 U.S.C. § 1988 (1988 & Supp. V), and 42 U.S.C. § 12205 (Supp. II 1991).

 For the reasons set forth herein, the class will be certified, declaratory judgment will be granted, an injunction will be entered, and attorney's fees will be awarded.

 Prior Proceeding.

 Plaintiffs filed their Complaint on October 10, 1995. On October 25, 1995, they brought an order to show cause seeking a temporary restraining order and a preliminary injunction. On October 25, 1995, the motion for a TRO was denied and the hearing on the preliminary injunction was consolidated with trial on the merits, pursuant to Federal Rule of Civil Procedure 65(a)(2).

 Defendants filed their Answer on November 17, 1995. The hearing on the merits was held on November 22, 1995. Post-trial submissions were accepted through December 31, 1995.

 The Parties

 Younger, a thirty-year-old man who resides in Manhattan, has been totally deaf since birth. He is the vice-president of NYCCAD, a New York not-for-profit corporation with offices in Manhattan and Queens. NYCCAD, which has approximately 569 members, is the largest deaf-run organization for advocacy of deaf people in New York City. It is a local chapter of the National Association of the Deaf and the Empire State Association of the Deaf. Its members consider it a "watchdog" on city-wide issues, problems, and needs of people who are hearing-impaired.

 The City is a municipal corporation duly organized under the laws of the State of New York.

 Giuliani is the Mayor of the City. He resides in and has his place of business in Manhattan. Safir is the Commissioner of the Fire Department. He conducts business in Manhattan and has offices in Brooklyn.

 The New York City Council is a legislative body located in Manhattan. Cuevas is the City Clerk and Clerk of the City Council. Legislation enacted by the City Council is put into effect through his certification and publication. His principal office is in Manhattan. Vallone is the Speaker and Majority Leader of the New York City Council. Ognibene is the Minority Leader of the City Council and an official of that body.

 The Mayor, the Commissioner, the Clerk, the Speaker, and the Minority Leader are sued here in their official capacities. The City, the Fire Department, and the City Council are "public entities" pursuant to 42 U.S.C. § 12131(1)(A). The Fire Department receives federal funds and is, therefore, subject to the provisions of the Rehabilitation Act.

 Facts

 
I. The Citywide Police Communications Center

 The New York City Police Department, through its Citywide Police Communications Center, commonly referred to as "911", receives more than ten million calls annually from persons dialing the number 9-1-1 on telephones. These calls include requests for police, fire, ambulance, and other forms of assistance.

 When a person dials 9-1-1 on a telephone and reports a fire, the call is transmitted from the Citywide Police Communications Center within ten seconds to one of the five borough Fire Department Communications Offices. The Fire Department Communications Offices also receive telephone alarms which are dialed directly by the public, made via operator assistance, called in from other agencies, or reported directly to neighborhood firehouses.

 
II. Fire Department Street Boxes

 New York City's street alarm box system consists of approximately 16,300 alarm boxes, made up of two types. One, the Box Alarm Read-out System (the "BARS box") -- an older, electro-mechanical pull box -- is operated merely by pulling a lever. A signal is then relayed via telegraph in Morse Code directly to the Fire Department. BARS boxes do not permit voice contact. There are approximately 5,800 BARS boxes in New York City.

 The second, newer type of street alarm boxes, known as Emergency Response System ("ERS") boxes, do provide voice communication with emergency services dispatchers. The ERS boxes contain two levers -- one to be used in case of fire, one to hail the police -- and a speaker, through which voice communication takes place.

 BARS or ERS boxes are located on approximately every second block throughout the City. In addition, approximately 2,000 of the 16,300 boxes are located on highways, terminals, and bridges and inside buildings of public assembly. In the case of both the BARS boxes and the ERS boxes, the Alarm Receipt Dispatcher at the Fire Department can tell the exact location from which the alarm call originates.

 The Fire Department does not respond to all calls from street alarm boxes. When a dispatcher receives a call from a BARS box, Fire Department personnel are always dispatched to the site of the alarm. However, because of the prevalence of false alarms, calls from ERS boxes are responded to only under certain circumstances, pursuant to a "fallback position" developed by the Fire Department. Between the hours of 11:00 P.M. and 8:00 A.M., all calls received from ERS boxes, even those where the caller makes no sound, receive a response from the Fire Department. At other times -- the period when false alarms are reportedly most frequent -- personnel are dispatched to the site of the ERS box only if the dispatcher hears some communication.

 Maintenance and repair of the street alarm box system imposes a financial burden on the City, which is currently suffering tight fiscal constraints. Some of this expense has resulted from the employment of personnel devoted solely to maintaining the system. The Fire Department employs sixty technicians full time to maintain and repair street alarm boxes, at an approximate cost of $ 3.8 million. BARS boxes add to personnel costs. Once triggered, they are manually rewound by fire companies after each use, a process that is not always necessary but is considered to increase the integrity of the system.

 The City also suffers some additional repair costs. As the system's underground cables have aged, the older of two types of cables have required increased maintenance. Moreover, there is some evidence that the BARS boxes are increasingly difficult to repair. Because no manufacturer still produces parts for these boxes, parts must now be cannibalized from BARS boxes no longer in use. Eventually -- by the year 2017 at the latest by one estimate, and perhaps sooner -- BARS boxes will have to be replaced by ERS boxes, at a cost estimated at $ 20 million.

 Although the City is somewhat burdened by the costs of maintenance and repair, there is also some evidence that the street alarm box system is not in especially imminent danger of deteriorating or becoming outmoded. Estimates of outside evaluators and some fire department personnel deem the equipment as a whole to be in good condition. A July 1994 Fire Department study found that the street alarm boxes are essentially reliable. There was credible testimony that only a small fraction of the underground cable must be replaced each year.

 A further drain on the Fire Department occurs as a result of the diversion of resources from necessary calls -- to both fires and medical emergencies -- to false alarms reported from ERS boxes. In 1993 and 1994, 26.5% and 23.8%, respectively of the initial calls received by the Fire Department to which units were dispatched were false alarms from street alarm boxes.

 Nonetheless, the system frequently provides the first notification of major fires and other emergencies. In 1993 and 1994, 15,380 and 13,013 calls received from alarm boxes, respectively, provided the only alarm for a fire or other emergency. Moreover, the number of false alarms may be controllable. From 1993 to 1994, the incidence of false alarms from the street alarm box system declined by approximately fourteen percent. That decrease was achieved by hiring a part-time dispatcher to assist in screening ERS calls during peak false alarm period.

 Many of the calls reported from street alarm boxes that are not false alarms are, nonetheless, redundant. In 1993, ninety-three percent of all calls initially received from street alarm boxes were false alarms, duplicated alarms received from other sources, or constituted ERS silent calls received between 8:00 A.M. and 11:00 P.M.

 The Fire Department is currently implementing a program to decrease response time to and, therefore, survival rates of victims of cardiac arrest. There is also evidence that its new CPR/Certified First Responder-Defibrillation Program will be facilitated if resources are freed from the burden of responding to false alarms. Removing alarm boxes has increased the Fire Department's ability to respond to more critical medical calls. Although a Fire Department study conducted in 1993 and 1994 concluded that firefighters were available to respond to more than 90% of calls for CPR assistance, the response time often resulted in help arriving too late.

 The City estimates its initial annual savings as a result of being freed from maintenance of the Alarm Box System as $ 4.9 million. Over ten years, the City estimates total annual capital savings, fringe benefits savings, and cost avoidance at $ 12.25 million.

 In April 1994, soon after the Commissioner took office, a committee was established to review the street alarm box network and to examine the feasibility of other sources of technology. A plan was finalized in December 1994 (the "December Plan"), calling for the removal of all currently existing street alarm boxes and the replacement of some with wireless cellular alarm boxes.

 The December Plan was the subject of litigation in the Supreme Court of the State of New York, New York County. Powis v. Giuliani, No. 10165/95. During the pendency of that litigation, the Fire Department submitted additional reports to the City Council, refining the proposed plan: a two-volume report entitled "Amended Report to the City Council: Planned Removal of Street Alarm Boxes & Notification Alternatives," dated June 21, 1995 (the "June Plan"); and a "Modification to Planned Removal of Street Alarm Boxes & Notification Alternatives, Dated June 21, 1995," dated August 17, 1995 (the "August Modification" or the "August Plan").

 The Court in Powis held that in developing its plan, the Fire Department had not genuinely and comprehensively evaluated the plan's potential consequences and that the plan had been hastily prepared and was arbitrary and capricious. No evidence was presented to establish that the Fire Department considered the potential impact on the hearing-impaired of the removal of street alarm boxes.

 The August Plan provided for the elimination of all street alarm boxes in two phases. The first phase was designed to provide data in order to determine whether the fire alarm boxes now in use as a primary device for calling the Fire Department and other emergency services should be dismantled throughout the City. This pilot project provided for the deactivation of 4,039 alarm boxes in Manhattan, the Bronx, Brooklyn, and Queens. By October 25, 1995, the date that Plaintiffs brought their Order to Show Cause, all but a few hundred of these 4,039 alarm boxes had been removed. All had been removed by the time of the trial on the merits.

 The second phase of the August Plan would remove all street alarm boxes throughout the City. The August Plan contemplates that the only notification alternative to the street alarm boxes will be the existing 911 system, to which access will be gained through public telephones. In developing the August Plan, only minimal data were collected regarding the placement of public telephones where street alarm boxes would be removed.

 Public telephones will not be placed at all locations where street alarm boxes will be removed as part of the August Plan. On June 15, 1995, NYNEX informed the Fire Department that it could not comply with its requests to install public telephones at approximately 117 locations. NYNEX reported to the Fire Department that it would be unable to provide dial tones to approximately half of those locations at a reasonable cost because of lack of cable facilities or location in areas subject to low usage and high vandalism. In addition, although the Fire Department has indicated a need for cellular telephones under its plan, no provision has been made for installation of cellular phones.

 The August Plan was not developed with reference to the advent of the new Enhanced 911 system, which is described below. In developing the plan, the Fire Department did not consider it a requirement that a public pay telephone exist wherever an alarm box was previously located.

 On September 6, 1995, the City Council passed Local Law No. 73 of 1995, and the bill was signed by the Mayor on September 21, 1995. Local Law 73 had the force and effect of approving the August Plan.

 Local Law 73 provides that through phase one -- the period of deactivation of a limited number of street alarm boxes -- the Fire Department is to prepare reports to the City Council. The first of these reports was submitted on November 16, 1995. Once the final report has been filed, a sixty-day period will begin during which the City Council may hold hearings or act to stop the second phase -- the total removal of all street alarm boxes. Without City Council intervention, the plan will proceed.

 The Police Department is in the process of switching from its former "911" system to an "Enhanced 911 System" ("E-911"), made capable by digital technology. The system's goal is to provide automatic location and telephone number identification ("ALI/ANI"), permitting a more efficient response to calls received, including silent calls. E-911 has also been designed to deter false alarms, since such calls will be capable of being traced.

 The Fire Department itself is not responsible for E-911. Instead, the Police Department will electronically transfer information received through E-911 to the Fire Department. Plans for E-911 communication directly to the Fire Department are only in the design stage and will not display location information about callers until the installation of the Fire Department's next dispatch system.

 When the E-911 system identifies the telephone number from which a call is coming, the address which will be associated with that telephone number will be drawn from a database assembled by NYNEX. That information is based on various sources. The accuracy of the database is subject to flaws, but the evidence to date has not established that these imperfections are substantial. Although there are no figures for the City, accuracy of the database in the State of New York is between eighty-seven and ninety-nine percent. Accuracy has been higher in urban areas than in rural areas. NYNEX operates an ongoing audit process, through which it periodically checks and compares its service records and the E-911 database. In some instances, information could have no relation to the telephone's location, since billing information reflects either where a telephone is or where the bill is sent. The Fire Department itself will be unable to verify the contents of the database, nor has the Fire Department determined how frequently the E-911 database will be revised. Neither a database update contract nor its terms have been concluded.

 The success of the management of the database is further complicated by the fact that NYNEX is not the only provider of telephone service in the City. Most public telephones on the streets of New York City are owned by NYNEX. The rest are divided into two types: Customer Owned Coin Operated Telephones (COCOTs) and Certified Local Exchange Carriers (CLECs). CLECs, of which there are between two and four in New York, are independent telephone companies permitted to operate within NYNEX's jurisdiction. They provide their own telephone equipment and lines to that equipment. In developing the database, NYNEX has provided the CLECs with a format through which a CLEC must, by law, respond with information on the locations of its telephones. NYNEX then uses its own audit process to verify the CLEC information. NYNEX does not, however, have any responsibility to police or enforce the CLECs' provision of that information.

 COCOTs provide telephone instruments to customers, but they use NYNEX or CLEC lines. COCOTs provide public telephones throughout the City. As in the case of CLECs, NYNEX is dependent on the information reported by COCOTs for information on the location of ...


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