The opinion of the court was delivered by: Scheindlin, District Judge.
Plaintiffs James Pascuiti, Joseph Reilly, Walter Rynasko, and
Theresa Murphy and plaintiff-intervenor United States of America
(collectively the "plaintiffs") have filed suit against New York
City and the New York City Department of Parks and Recreation
(the "City"), as well as the New York Yankees (the "Yankees"),
alleging that the City and the Yankees have violated the
Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et
seq., New York State Executive Law § 296(2), and New York Human
Rights Law § 8-107(4) by failing to make Yankee Stadium (the
"Stadium") accessible to individuals with disabilities. On
December 2, 1999, this Court made oral rulings in response to
several issues raised by the parties. Those rulings are withdrawn
and replaced by this amended opinion, which clarifies those
rulings and provides additional guidance to the parties.
I. Issues Relating to Title II
The anti-discrimination provision of Title II of the ADA
Subject to the provisions of this subchapter, no
qualified individual with a disability shall, by
reason of such disability, be excluded from
participation in or be denied the benefits of the
services, programs, or activities of a public entity,
or be subjected to discrimination by any such entity.
42 U.S.C. § 12132. Title II defines "public entity" to include
state and local governments, such as the City. See
42 U.S.C. § 12131(1)(A).*fn1 The regulations implementing Title II explain
the responsibilities of public entities in greater detail:
28 C.F.R. § 35.150(a). The regulations contain several
limitations, one of which provides that § 35.150(a) does not:
[r]equire a public entity to take any action that it
can demonstrate would result in a fundamental
alteration in the nature of a service, program, or
activity or in undue financial and administrative
28 C.F.R. § 35.150(a)(3).
Both the plaintiffs and the City agree that the burden of proof
scheme laid out in Borkowski v. Valley Central School District,
63 F.3d 131, 137-40 (2d Cir. 1995), applies in this case.
Borkowski involved the allocation of the burdens of proving
both "reasonable accommodation" and "undue hardship" under
section 504 of the Rehabilitation Act:
It is enough for the plaintiff to suggest the
existence of a plausible accommodation, the costs of
which, facially, do not clearly exceed its benefits.
Once the plaintiff has done this, she has made out a
prima facie showing that a reasonable accommodation
is available, and the risk of nonpersuasion falls on
the defendant. At this point the defendant's burden
of persuading the factfinder that the plaintiff's
proposed accommodation is unreasonable merges, in
effect, with its burden of showing, as an affirmative
defense, that the proposed accommodation would cause
it to suffer an undue hardship. For in practice
meeting the burden of nonpersuasion on the
reasonableness of the accommodation and demonstrating
that the accommodation imposes an undue hardship
amount to the same thing.
Id. at 138 (citations omitted). Translating this scheme into
the Title II context, plaintiffs must: (1) prove that the
Stadium, when viewed in its entirety, is not readily accessible
to and usable by individuals with disabilities; and (2) suggest a
plausible method of making the Stadium readily accessible, the
costs of which, facially, do not clearly exceed its benefits. If
plaintiffs make out this prima facie case, the City must prove
that the ...