United States District Court, E.D. New York
LORI SCHARFF, MICHAEL GODINO, EDWARD MOLLOY and LONG ISLAND COUNCIL OF THE BLIND, Plaintiffs,
COUNTY OF NASSAU and SHILA SHAH-GAVNOUDIAS, COMMISSIONER OF NASSAU COUNTY PUBLIC WORKS, in her official capacity, Defendants.
Robert Briglio, Esq., NASSAU SUFFOLK LAW SERVICES COMMITTEE, Islandia, New York, Attorneys for Plaintiff.
Martin J. Coleman, Esq., LAW OFFICE OF MARTIN J. COLEMAN, P.C., Woodbury, New York, Attorneys for Plaintiff.
Ralph J. Reissman, Esq., NASSAU COUNTY ATTORNEY, JOHN CIAMPOLI, Mineola, New York, Attorneys for Defendants.
MEMORANDUM & ORDER
DENNIS R. HURLEY, Senior District Judge.
Plaintiffs Lori Scharff ("Scharff"), Michael Godino ("Godino"), Edward Molloy ("Molloy") and the Long Island Council of the Blind ("LICB") (collectively, "Plaintiffs"), brought this action under Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq. ("ADA"), and the Rehabilitation Act, 29 U.S.C. § 794 et seq. ("Rehabilitation Act") claiming that defendants County of Nassau ("County") and Shila Shah-Gavnoudias, Commissioner of Nassau County Public Works, in her official capacity (collectively, "Defendants"), violated their rights by failing to adopt a scheduled installation of Accessible Pedestrian Signals ("APS") at intersections where pedestrian crossing signals were currently provided, and by failing to install APS each time the County altered or installed pedestrian crossing signals, including when Defendants engaged in a traffic signal replacement project between 2008 and 2011. Presently before the Court are the parties' cross-motions for summary judgment pursuant to Federal Rule of Civil Procedure ("Rule") 56. For the reasons set forth below, the parties' motions are denied.
The material facts, drawn from the Amended Complaint and the parties' Local Civil Rule 56.1 Statements, are undisputed unless otherwise noted.
Plaintiffs are blind, deaf-blind or severely visually impaired individuals who reside near Hempstead Avenue, in Nassau County, New York, and who are members, and former or current officers, of LICB. The Council "is a private, volunteer organization affiliated with the American Council of the Blind of New York, Inc." ("ACBNY"). (Pls.' R. 56.1 Stmt. ¶ 3.) ACBNY is a notfor-profit corporation comprised of chapters or affiliates, such as LICB, which focus on either a geographic area, a specific population, or an issue within New York State.
LICB's stated Constitutional Purpose is to "[e]ducate the public as well as the blind and visually impaired as to the rights, responsibilities, problems and potentials of blind and visually impaired persons; providing maximum opportunities to become self-sufficient, self-supporting and productive members of society." ( Id. ¶ 6.) LICB educates the public about its goals, and holds advocacy meetings and events that are intended to encourage and educate governmental officials to meet LICB's goals. One long term project of LICB has been advocating for the installation of APS along the roadways in its geographical area.
"APS are pedestrian, street crossing signal technologies that can be installed with standard pedestrian crossing signal equipment, and which provide auditory and tactile information that gives blind and visually impaired persons the same or similar information provided by purely visual pedestrian signals to sighted persons." ( Id. ¶ 10.) One type of APS is the Polara Navigator, which adds audio equipment to communicate information, and a push button that activates an "audio crossing signal which has a non-verbal audio homing sound used to locate the button and a tactile arrow to indicate the direction of travel governed by the signal." ( Id. ¶ 11.) The Polara Navigator has been commercially available since 2003. ( Id. ¶ 45.) Prior to the commencement of the instant litigation, LICB's officers and members spent substantial amounts of time trying to achieve the organization's mission of obtaining the installation of APS.
Blind and severely visually impaired individuals rely in part, or in whole, on their senses of hearing when attempting independently to cross a street. Thus, the "purpose of installing APS is to improve the safety of visually impaired people as they cross streets with pedestrian signals." ( Id. ¶ 13.) However, Plaintiffs' ability to safely cross streets using their sense of hearing has decreased during the past decade, and will likely continue to decrease, because of the presence of vehicles with "quiet engine technologies." ( Id. ¶¶ 15, 16.)
Although "[m]any of the destinations... Scharff utilizes for her daily needs could be [traveled to] by walking, ... Scharff has chosen not to risk her safety by independently crossing Hempstead Avenue because of the lack of APS at the various signalized intersections." ( Id. ¶¶ 18, 19.) Thus, Scharff's "independent activities are substantially limited" by "the lack of APS along Hempstead Avenue, " and she must pay "substantially higher travel fees charged by paratransit rides and taxis to get to destinations." ( Id. ¶¶ 20, 21.) Godino and Molloy face similar difficulties "in independently crossing Hempstead Avenue at intersections that are currently controlled by non-APS pedestrian signals." ( Id. ¶ 25.) Thus, Plaintiffs wish "to use APS at... intersections under the ownership or control of Nassau County to facilitate their ability independently and safely to travel to as many parts of Nassau County as possible." ( Id. ¶ 27.)
The County "owns approximately 1600 signalized intersections." ( Id. ¶ 31.) The Nassau County Department of Public Works ("DPW") provides the public with "pedestrian street crossing signals and related equipment" which provide "a means for pedestrians to cross streets in a safer manner than if they crossed streets at uncontrolled intersections." ( Id. ¶ 32.) "DPW has installed APS at approximately ten intersections in Nassau County"; however, it "has not installed APS at any of the intersections along Hempstead Avenue to date." ( Id. ¶¶ 33, 34.) The APS that were installed by DPW "were installed in response to requests from County residents to install APS at intersections near their residences." ( Id. ¶ 35.) The County's APS units cost approximately $400 each. (Defs.' R. 56.1 Stmt. ¶ 14.) DPW does not have a "formalized policy or process related to the installation of APS." (Pls.' R. 56.1 Stmt. ¶ 36.)
However, according to Defendants, it is not possible to install APS at every intersection because the existing buildings, trees or other structures prevent the proper installation of the pedestrian signal pole and APS unit. Defendants state that access to the underground electrical wires needed for the installation of APS may be "prevented by the existence of underground gas mains, water mains, electrical wires, sewers, signal cables and other obstructions." (Defs.' R. 56.1 Counterstmt. ¶ 10.) Further, Defendants assert that, in many cases, the proper placement of APS is prevented by the orientation or configuration of existing curb ramps, roads and sidewalks.
Moreover, Defendants argue that "it is not [always] possible to safely install an APS unit to meet [the] optional safety guidelines issued by the Manual of Uniform Traffic Control Devices (the "MUTCD"), which itself recognizes that installation of APS is strictly discretionary with any municipality or public entity." ( Id. ) In addition, Defendants state that the County may not own or have access to the sidewalk areas where an APS could be installed. Indeed, Defendants claim that, "in at least one instance, where the County intended to install an APS unit in the Incorporated Village of Garden City[, ]... the Village of Garden City Buildings Department issued a Stop Work' order preventing the County from installing the APS unit in the desired and appropriate manner, and the installation had to be reconfigured." ( Id. )
During the time period of 2008 to 2011, "DPW reconstructed existing pedestrian signals along Hempstead Avenue in Malverne and West Hempstead, " which included replacing operative parts and wiring the pedestrian signals "to the County's centralized computer control equipment" ("Reconstruction Project"). (Pls.' R. 56.1 Stmt. ¶¶ 37, 38.) In addition, existing pedestrian signal heads were replaced during the Reconstruction Project with "countdown" signal heads, a technology that was newly available at the time of installation. The countdown signal heads "display a visual number countdown of the time pedestrians have to safely cross the streets, " and are designed to "enhance pedestrian safety while crossing intersections." ( Id. ¶¶ 39, 40.) "The new countdown signal heads installed along Hempstead Avenue from 2008-2011 did not have an audio (aural) component designed to communicate the visual information provided to the general public by the signal heads to individuals who cannot see the visual information provided by the countdown signal heads." ( Id. ¶ 42.)
DPW's former commissioner, Raymond Ribeiro ("Ribeiro"), "first became aware of the needs of visually impaired citizens to safely cross streets in 1996-1998 while he worked as a Traffic Engineer II for Nassau County." ( Id. ¶ 43.) Moreover, the former leader of the County's Traffic Engineering Division, Harold Lutz ("Lutz"), "had been aware of public requests for APS technologies at least since the 2003 Manual on Uniform Traffic Control Devices was adopted." ( Id. ¶ 44.) Plaintiffs met with officials from DPW and the Office of the Physically Challenged from 2006 to September 2007, "to educate those officials about APS technologies and the [P]laintiffs' need to have APS throughout Nassau County." ( Id. ¶¶ 46, 47.) Ribeiro and Lutz "represented DPW at several of the APS meetings." ( Id. ¶ 48.) During the APS meetings, DPW officials considered the Polara Navigator technology. "DPW officials investigated the Navigator APS to determine whether it was appropriate for use [to] assist blind individuals crossing Nassau County's roadways, and ultimately approved it for use...." ( Id. ¶ 50.)
At the APS meetings, Godino and LICB member, John Jeavons, also provided the County with two written lists of intersections located in the County for which they requested the installation of APS technology. Lutz considered these requests a higher priority than typical requests because they came from a committee that had been specifically formed to address APS needs in the County. DPW employees visited the listed intersections and noted the possibility of installing APS at those locations.
Ribeiro knew that "Godino lived along Hempstead Avenue and that Godino wanted APS installed at pedestrian signals near his house along Hempstead Avenue." ( Id. ¶ 52.) Similarly, Lutz was aware of Godino's "requests for installation of APS along Hempstead Avenue." ( Id. ¶ 60.) Lutz spoke with Deborah Goehner ("Goehner"), a member of the 2006-2007 APS committee and the DPW official responsible for overseeing the design phase of the Reconstruction Project, about installing APS at intersections located within the Reconstruction Project. ( Id. ¶¶ 59, 61.)
At the time he left his employment with the County, Ribeiro had been "in the process of developing a formalized county-wide policy relat[ing] to the installation of APS on a scale that went beyond receipt of requests from community members relat[ing] to intersections near their homes." ( Id. ¶ 63.) "Ribeiro considered his efforts to develop an APS installation on a wider basis throughout Nassau County to be similar" to what he believed "was required by an ADA transition plan." ( Id. ¶ 64.) However, "[m]uch of the documentation of DPW's investigation into and planning of an APS installation policy which was maintained by... Lutz has been lost." ( Id. ¶ 65.)
I. Summary Judgment Standard
Summary judgment, pursuant to Rule 56, is appropriate only where admissible evidence in the form of affidavits, deposition transcripts, or other documentation demonstrates the absence of a genuine issue of material fact, and one party's entitlement to judgment as a matter of law. See Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712, 716 (2d Cir. 1994). The relevant governing law in each case determines which facts are material; "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). No genuinely triable factual issue exists when the moving party demonstrates, on the basis of the pleadings and submitted evidence, and after drawing all inferences and resolving all ambiguities in favor of the non-movant, that no rational jury could find in the non-movant's favor. Chertkova v. Conn. Gen'l Life Ins. Co., 92 F.3d 81, 86 (2d Cir. 1996).
To defeat a summary judgment motion properly supported by affidavits, depositions, or other documentation, the non-movant must offer similar materials setting forth specific facts that show that there is a genuine issue of material fact to be tried. Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996). The non-movant must present more than a "scintilla of evidence, " Del. & Hudson Ry. Co. v. Consol. Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990) (quoting Anderson, 477 U.S. at 252) (internal quotation marks omitted), or "some metaphysical doubt as to the material facts, " Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)) (internal quotation marks omitted), and cannot rely on the allegations in his or her pleadings, conclusory statements, or on "mere assertions that affidavits supporting the motion are not credible." Gottlieb v. Cnty. of Orange, 84 F.3d 511, 518 (2d Cir. 1996) (internal citations omitted).
The district court considering a summary judgment motion must also be "mindful... of the underlying standards and burdens of proof, " Pickett v. RTS Helicopter, 128 F.3d 925, 928 (5th Cir. 1997) (citing Anderson, 477 U.S. at 252), because the "evidentiary burdens that the respective parties will bear at trial guide district courts in their determination[s] of summary judgment motions." Brady v. Town of Colchester, 863 F.2d 205, 211 (2d Cir. 1988). "[W]here the nonmovant will bear the ultimate burden of proof at trial on an issue, the moving party's burden under Rule 56 will be satisfied if he can point to an absence of evidence to support an essential element of the nonmoving party's claim." Id. at 210-11. Where a movant without the underlying burden of proof offers evidence that ...