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CIVIC ASS'N OF THE DEAF OF NEW YORK CITY

July 23, 1997

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. and the Rehabilitation Act of 1973, 29 U.S.C. § 794, the Plaintiffs, a class of deaf and hearing-impaired individuals residing in New York City (the "City"), have moved to extend the injunction issued on February 9, 1996 to require the Defendants to restore two-button emergency alarm boxes and all deactivated boxes to a pilot area previously exempt from the scope of the injunction.

 For the reasons set forth below, the injunction will be modified to require the City to replace one-button alarm boxes installed in the pilot areas with two-button boxes. However, the City will not be ordered to reinstall all deactivated boxes in the pilot areas.

 Prior Proceedings

 Plaintiffs the Civic Association of the Deaf of New York City, Inc. ("NYCCAD") and Steven G. Younger II ("Younger") (collectively, "Plaintiffs") filed their complaint on October 10, 1995, alleging that the Defendants' plan to deactivate all City alarm boxes and replace them with a telephone emergency reporting system violated the ADA, the Rehabilitation Act and the Equal Protection Clause. 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).

 After a hearing on the merits, the Court, by order dated February 9, 1996, certified a plaintiff class of deaf and hearing-impaired individuals in New York City, granted judgment declaring that Defendants' proposed removal of alarm boxes violated the ADA and the Rehabilitation Act, and enjoined Defendants from "carrying out any shutdown, deactivation, removal, elimination, obstruction, or interference with the existing street alarm box system, and from acting to replace the existing accessible street alarm box system with notification alternatives which are not accessible to the deaf." Civic Ass'n of Deaf v. Giuliani, 915 F. Supp. 622, 639 (S.D.N.Y. 1996).

 The Opinion, however, refused to require the Defendants to restore boxes that had been removed as part of a pilot program to test the proposed "replacement" of street alarm boxes with public telephone reporting through an "Enhanced 911" ("E-911") system that would identify automatically a caller's location and telephone number. Id. The Opinion also granted leave to Defendants to apply for dissolution or modification of the order upon a demonstration that "an accessible notification alternative exists." Id. The Opinion indicated that an E-911 telephone system that actually identified the location of the caller, along with the implementation of a protocol to permit the hearing-impaired to indicate the type of emergency being reported, would be sufficiently accessible under the ADA. Id. at 638. The Opinion also stated: "If, within one year of judgment, Defendants have not successfully dissolved or modified the existing injunction . . . a further application may be made" to enjoin the Defendants to restore the alarm boxes to pilot areas. Id. at 639.

 On June 11, 1996, Defendants moved to vacate the injunction and dismiss the complaint as moot, on the grounds that the City had devised a non-discriminatory alternative emergency reporting system. By letter dated February 21, 1997, the City requested permission to withdraw the motion. By order dated April 1, 1997, the motion was withdrawn and removed from the Court's calendar.

 By letter dated February 24, 1997, the Plaintiffs requested that the Defendants be enjoined to restore two-button alarm boxes and all deactivated boxes in the pilot areas. The letter was treated as a motion and oral argument was heard on May 21, 1997. The Court received additional materials through June 6, 1997, at which time the motion was deemed fully submitted.

 The Parties

 Plaintiffs are a class of approximately 65,000 deaf and hearing-impaired individuals in New York City. Named-plaintiff 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 advocacy organization for deaf people in New York City.

 Defendant Rudolph Giuliani is the Mayor of the City of New York (the "Mayor"); Howard Safir, currently the Chief of Police, was the Commissioner of the Fire Department (the "Commissioner") of the City of New York at the time this action was filed; Carlos Cuevas is City Clerk and Clerk of the New York City Council (the "Clerk") and legislation enacted by the City Council is put into effect through his certification and publication; Peter Vallone is Speaker and Majority Leader of the New York City Council (the "Speaker"); Thomas Ognibene is Minority Leader of the New York City Council (the "Minority Leader"); and the City is a municipal corporation duly organized under the laws of the State of New York.

 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. § 12133(1)(A). The Fire Department receives federal funds and is, therefore, subject to the provisions of the Rehabilitation Act.

 Facts

 A complete recitation of the factual background of this case appears in the Court's prior opinion, familiarity with which is assumed. Civic Association, 915 F. Supp. at 626-30. The facts relevant to decision of the instant motion are set forth below.

 It is estimated that over 65,000 deaf or hearing-impaired people reside in New York City. Under current procedures, the deaf and hearing-impaired can report fires and other emergencies in most parts of New York City through private telephones or through public telephones or emergency alarm boxes located on the City's streets.

 New York City's current street alarm box system consists of approximately 16,000 alarm boxes, made up of three types. One type, the Box Alarm Read-out System (the "BARS box") is an electro-mechanical device operated 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. Most ERS boxes contain two buttons -- a red button to be used in case of fire, a blue one to hail the police -- and a speaker, through which voice communication takes place. These boxes are known as "two-button boxes" in the argot of this litigation.

 The third type of alarm box is a modified ERS box consisting of a single button and speaker. These boxes are referred to as "one-button boxes." The user presses the button to report an emergency and communicates the nature of the emergency, and thus the type of assistance needed, through the speaker. To make the one-button alarm boxes accessible to the deaf and hearing-impaired, Defendants have developed a new protocol by which users can communicate the type of emergency they are reporting through a tapping code: a repeated single tap on the mouthpiece of an ERS box will signify a request for police services, and a repeated double-tap indicates a request for fire services. This protocol is also to be used by deaf individuals reporting emergencies from pay telephones using the E-911 system. The parties have submitted conflicting affidavits about the extent of training dispatchers have received to recognize the tapping protocols and whether the protocols have been publicized in the deaf community.

 BARS or two-button ERS boxes are located on approximately every second block throughout most areas of the City. In addition, approximately 2,000 boxes are located on highways, terminals, and bridges and inside buildings of public assembly.

 The plan enjoined by this Court in February 1996 provided for the elimination of all street alarm boxes. The plan contemplated that the only notification alternative to the street alarm boxes would be the predecessor to the E-911 system, to which access would be gained through home telephones or public telephones. At that time, the E-911 system was not fully operational. Civic Ass'n, 915 F. Supp. at 629. There was no evidence that the City had developed ...


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