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Brooklyn Center for Independence of the Disabled v. Bloomberg

November 7, 2012

BROOKLYN CENTER FOR INDEPENDENCE OF THE DISABLED, A NONPROFIT ORGANIZATION, CENTER FOR INDEPENDENCE OF THE DISABLED, NEW YORK, A NONPROFIT ORGANIZATION, GREGORY D. BELL, AND TANIA MORALES, PLAINTIFFS,
v.
MICHAEL R. BLOOMBERG, IN HIS OFFICIALY CAPACITY AS MAYOR OF THE CITY OF NEW YORK, AND THE CITY OF NEW YORK, DENFENDANTS.



The opinion of the court was delivered by: Jesse M. Furman, United States District Judge

OPINION AND ORDER

This case - filed shortly after Hurricane Irene in 2011 - raises the question of whether the City of New York's emergency preparedness plans adequately address the needs of people with disabilities. Brooklyn Center for Independence of the Disabled ("BCID") and the Center for the Independence of the Disabled, New York ("CIDNY"), two non-profit organizations, along with Gregory D. Bell and Tania Morales, two individual plaintiffs, bring suit against the City of New York (the "City") and Mayor Michael R. Bloomberg under Section 504 of the Rehabilitation Acto of 1973 ("Rehabilitation Act"), 29 United States Code, Section 794, et seq.; Title II of the Americans with Disabilities Act ("ADA"), 42 United States Code, Section 12131; and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Administrative Code, Section 8-101, et. seq., alleging a systematic failure to address the needs of persons with disabilities in the City's emergency and disaster planning. (Amended Compl. ¶¶ 1, 14).

Trial in this matter is scheduled for December 10, 2012. The question now pending before the Court is not whether the plaintiffs' allegations have merit, but whether the case should proceed as a class action. On August 31, 2012, the plaintiffs moved to certify the following class under Federal Rules of Civil Procedure 23(a) and (b)(2): "all persons with disabilities in the City of New York who have been and are being denied the benefits and advantages of New York City's emergency preparedness program because of Mayor Bloomberg and New York City's continuing failure to address the unique need of this population in the City's emergency planning and preparations." (Mot. to Certify Class (Docket No. 35)). Defendants oppose the motion, principally on the ground that plaintiffs lack standing to bring their claims because they have not proved an "injury in fact." (Defs.' Mem. in Opp'n to Pls.' Mot. to Certify Class ("Defs.' Opp'n Mem.") at 2 (Docket No. 59)). The motion was fully submitted on September 24, 2012.

For the reasons discussed below, plaintiffs' motion to certify the class is GRANTED as modified and subject to comment from the parties.*fn1

BACKGROUND

The City's Office of Emergency Management ("OEM") is responsible for planning and preparing for emergencies, educating the public about preparedness for emergencies, coordinating emergency responses and recovery efforts, and collecting and disseminating emergency information to the public. (Parks Decl. Ex. G at 1 (Docket No. 51)). Part of OEM's mandate is to develop written, city-wide plans to address emergencies that might befall the City.

(See id. Ex. H). These plans cover emergencies ranging from natural disasters (for example, hurricanes, floods, and winter weather) to other miscellaneous hazards (for example, downed trees, power interruptions, and oil spills). (Id.).

Plaintiffs in this action allege that the City's emergency plans are either inadequate with respect to the needs of people with disabilities or that they fail to provide for their needs entirely. (See Mem. in Support of Mot. to Certify Class ("Pls.' Mem.") at 3). In particular, the plaintiffs identify four alleged problems with the City's emergency plans.

Plaintiffs seek a declaration from this Court that the above failures (and others) violate the ADA, the Rehabilitation Act, and the NYCHRL. (Amended Compl. ¶ 155). In addition, they seek an injunction requiring the City to develop and implement an emergency preparedness program that addresses the unique needs of people with disabilities. (Id. ¶ 156). For the moment, however, the sole issue before the Court is plaintiffs' motion to certify a plaintiff class of "all persons with disabilities in the City of New York who have been and are being denied the benefits and advantages of New York City's emergency preparedness program because of Mayor Bloomberg and New York City's continuing failure to address the unique need of this population in the City's emergency planning and preparations." (Mot. to Certify Class).

DISCUSSION

A. Standing

In opposing class certification, defendants argue principally that both the individual plaintiffs and the organizational plaintiffs lack standing. Standing "is a threshold question - antecedent to class certification - that requires plaintiffs to have been personally injured . . . ." Pub. Emps. Ret. Sys. v. Merrill Lynch & Co., 714 F. Supp. 2d 475, 480-81 (S.D.N.Y. 2010). More specifically, to have standing,

[1] the plaintiff[s] must have suffered an injury in fact that is both concrete and particularized and actual or imminent, not conjectural or hypothetical; [2] there must be a causal connection between the injury and the conduct complained of such that the injury is fairly traceable to the challenged action of the defendant[s]; and [3] it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Bryant v. N.Y. State Educ. Dep't, 692 F.3d 202, 211 (2d Cir. 2012) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (internal quotation marks omitted)).

In the present case, defendants contend that the plaintiffs have not suffered an "injury in fact" sufficient to confer standing. (See Defs.' Opp'n Mem. at 2). Significantly, although it is plaintiffs' burden to establish such injury, see Roxbury Taxpayers Alliance v. Delaware Cnty.

Bd. of Supervisors,80 F.3d 42, 47 (2d Cir. 1996), "plaintiffs are not required to prove injury-in-fact at the class certification stage," In re Amaranth Natural Gas Commodities Litig., 269 F.R.D. 366, 379 (S.D.N.Y. 2010). Instead, at this stage in the litigation, plaintiffs need only properly allege such an injury. See, e.g., Denney v. Deutsche Bank AG, 443 F.3d 253, 263 (2d Cir. 2006) (explaining that, for purposes of determining standing, the court "'must accept as true all material allegations of the complaint, and must ...


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