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Scalercio-Isenberg v. Port Authority of New York and New Jersey

United States District Court, S.D. New York

March 31, 2018

SHERRY SCALERCIO-ISENBERG, Plaintiff,
v.
PORT AUTHORITY OF NEW YORK AND NEW JERSEY and PATRICK FOYE, Defendants.

          Sherry Scalercio-Isenberg Sparta, New Jersey Plaintiff Pro Se

          Christopher J. Neumann Port Authority Law Department New York, New York Counsel for Defendants

          OPINION & ORDER

          Vernon S. Broderick United States District Judge.

         Before me is the motion of the Port Authority of New York and New Jersey (the “Port Authority”) and Patrick Foye, former Executive Director of the Port Authority, (collectively, “Defendants”) for judgment on the pleadings as to all claims in the Amended Complaint of Plaintiff Sherry Scalercio-Isenberg under Federal Rule of Civil Procedure 12(c). Plaintiff brings claims against Defendants for disability discrimination under Title II of the Americans with Disabilities Act (“ADA”) and § 504 of the Rehabilitation Act. Because claims cannot be brought under Title II of the ADA or § 504 of the Rehabilitation Act for damages against Defendant Foye in his individual capacity or in his official capacity, or alternatively, claims asserted against Defendant Foye in his official capacity would be redundant to the claims against the Port Authority, Defendants' motion to dismiss with respect to claims against Defendant Foye is GRANTED. However, because Plaintiff plausibly alleges that she has been denied meaningful access, Defendants' motion to dismiss with respect to claims against the Port Authority is DENIED.

         I. Background[1]

         Plaintiff is a commuter who utilizes the Lakeland bus line at the Port Authority to travel to and from Sparta, New Jersey on a regular basis. (Am. Compl. 8.)[2] On or about September 15, 2015, the Port Authority moved the Lakeland bus line from gates 402/403, which were accessible by elevator, to gates 206/207. (Compl. 5.)[3] Gates 206/207 are accessible in two ways: (1) by taking an escalator and multiple flights of stairs, or (2) by taking the elevator to gate 403 and walking across active bus lanes. (Id.)

         Plaintiff has a disability on the left side of her body, which prevents her from using an escalator or climbing stairs. (Id.) As a result, because the Lakeland bus now departs from gates 206/207, she is forced to walk across active bus lanes as buses are entering and exiting the gates. (Id.) There are signs posted in the bus lanes stating “DO NOT ENTER/DANGER ACTIVE BUS LANES.” (Id. at 9.) Plaintiff alleges that she has missed her bus on several occasions out of fear about walking across the bus lanes, forcing her to take a later bus, (id.), or a car service costing $350.00 to her home, (Compl. Att. Ex. 2).[4]

         On an unspecified date, Lakeland bus lines informed Defendant Foye, then-Executive Director of the Port Authority, that one of Lakeland's regular customers was unable to use the escalator and stairs to get to gates 206/207. (Compl. 5.) An unnamed representative from Lakeland informed Plaintiff on an unspecified date that the Port Authority's response was “basically, too bad, ” and that Plaintiff would “have to figure out another way to get to gates 206/207.” (Id.)

         On August 8, 2016, it appears that Plaintiff submitted a message to the web feedback portal on the Port Authority website informing the Port Authority that she had “[f]iled [a] complaint at ADA.gov[, ] contacted Governor Christie[, ] and today emailed Channel 12 news.” (Compl. Att. Ex. 4, at 2.) The next day, Brian Jacob, a Manager for Customer Programs and Services at the Port Authority, emailed Plaintiff to follow up on a telephone conversation with Plaintiff from the day before. (Id. at 1.) Jacob informed Plaintiff that:

[B]us companies can make arrangements for disabled passengers to board vehicles at one of the terminal's ADA-compliant gates. You can prearrange your travel times directly with Lakeland, who can then pick you up at Gate 421 before picking up passengers at its regular Gates 206/207. If you were to miss your bus for some reason, you can always speak with a platform supervisor or use any of the house phones to contact the control center and arrange for the next available bus. Lakeland can be reached at 973-366-0600. You'll need to speak with them directly regarding their specific check-in policy (i.e., you may need to call 1 hour beforehand to confirm expected pickup times).

(Id.) The same day, Plaintiff responded to Jacob, stating that “[g]oing to Gat[e] 421 is UNACCEPTABLE . . . I waited almost 2 hours for a bus, then once . . . a bus came, it was the wrong Bus.” (Id.) The next day, Plaintiff forwarded Jacob's email and her response to William Carnathan of the Department of Justice, informing him that she “tried the [Port Authority's] proposal” to pre-arrange her travel time with Lakeland, but it “doesn't work.” (Id.) On July 3, 2017, Plaintiff received a letter from the Port Authority further informing her that in order to prearrange a pick-up from gate 421, she should arrive at the gate twenty to thirty minutes prior to her bus's scheduled departure time. (Pl.'s Opp. 4.)[5]

         Gate 421-the ADA-compliant gate that the Port Authority proposed Plaintiff could use to access her bus-is at the end of the bus terminal and is the furthest gate from the elevators. (Compl. Att. Ex. 11.) It “is located down a dark corridor[, ] . . . is isolated[, ] [h]omeless people congregate there[, and] [t]here is no security.” (Pl.'s Supp. Opp. 3.)[6] There is an “unlocked, unsecured door to the outside street” at the gate, and there are “no other business passengers within 10-12 gates.” (Compl. Att. Ex. 11.) Plaintiff claims that using gate 421 “creates another serious safety risk to [her], especially as a woman by [her]self.” (Id.) According to Plaintiff, the Port Authority's proposed alternative arrangement has “increased [her] commute time by approximately an hour every day.” (Compl. 5.)

         II. Procedural History

         Plaintiff commenced this action by filing her Complaint against Defendant Foye on November 1, 2016. (Doc. 1.) Following the commencement of her action, Plaintiff filed several exhibits to accompany her Complaint. (Docs. 2, 3.) Defendant Foye filed his Answer on December 15, 2016. (Doc. 6.) After I held an initial pretrial conference on March 17, 2017, (Dkt. Entry Mar. 17, 2017), the parties engaged in discovery. Before the completion of discovery, Plaintiff filed a motion for summary judgment on April 5, 2017, (Doc. 16), which I denied without prejudice to allow the parties to complete discovery, (Doc. 17). Plaintiff again moved for summary judgment on May 24, 2017, (Doc. 23), and again, I denied her motion without prejudice to allow the completion of discovery, (Doc. 25).

         On June 20, 2017, Defendant Foye requested a pre-motion conference in anticipation of filing a motion to dismiss Plaintiff's claims against Defendant Foye and a motion to amend his Answer to allege claims against non-party Lakeland Bus Lines, Inc. (Doc. 29.) Rather than holding a pre-motion conference, I instructed the parties to meet and confer to propose a briefing schedule by June 28, 2017. (Doc. 31.) The parties were unable to agree to a briefing schedule, (Doc. 34), so I entered one on June 30, 2017 and instructed Plaintiff to file a pre-motion letter by July 7, 2017 if she intended to file a dispositive motion, (Doc. 35). On July 3, 2017, Plaintiff filed a letter indicating that she anticipated filing an opposition to Defendant Foye's anticipated motion to dismiss and motion to amend his Answer, as well as her own motion for summary judgment. (Doc. 37.) On July 5, 2017, I instructed Plaintiff that her oppositions should be filed in accordance with the briefing schedule I entered on June 30, 2017, as should her anticipated motion for summary judgment. (Doc. 39.)

         On July 31, 2017, Defendant Foye filed a motion for judgment on the pleadings, (Doc. 45), along with the Declaration of Christopher J. Neumann, (Doc. 46), and a memorandum of law in support, (Doc. 47).[7] Defendant Foye did not file a motion to amend his Answer. The next day, Plaintiff filed her opposition. (Doc. 48.) On August 14, 2017, Plaintiff filed a “supplemental response” to Defendant Foye's motion for judgment on the pleadings, which responded to Defendant Foye's motion and also requested leave to file an amended complaint to add the Port Authority as a defendant. (Doc. 51.) Plaintiff noted that the joinder of the Port Authority “would be the only change” to the Complaint. (Id.) Defendant Foye opposed Plaintiff's request to amend her Complaint on August 18, 2017, (Doc. 53), and on August 28, 2017, he filed his reply in further support of his motion for judgment on the pleadings, (Doc. 57).

         On December 13, 2017, I held a status conference to address a discovery dispute between the parties, as well as Plaintiff's request to file an amended complaint. (See Doc. 74.) At the conference, I instructed counsel for Defendant Foye to, among other things, provide responses to certain questions I had regarding whether Defendant Foye or the Port Authority would suffer any prejudice and/or seek additional discovery if I granted Plaintiff leave to file an amended complaint. (Id.; see also Doc. 80.) Counsel for Defendant Foye filed a letter on December 20, 2017, claiming that the Port Authority would suffer prejudice if I granted Plaintiff leave to amend, but stating-if I permitted the amendment-that the Port Authority would not seek additional discovery and that it would join in Defendant Foye's pending motion for judgment on the pleadings. (Doc. 76.) Plaintiff filed her response to Defendant Foye's letter on December 20, 2017. (Doc. 77.) On January 24, 2018, I granted Plaintiff leave to file an amended complaint solely to add the Port Authority as a defendant. (Doc. 80.) I also instructed the Port Authority to file a document on the docket joining in Defendant Foye's pending motion for judgment on the pleadings. (Id.)

         On February 1, 2018, Plaintiff filed a letter purportedly amending her Complaint. (Doc. 81.) By endorsement on February 2, 2018, I instructed Plaintiff that she may not amend her Complaint by letter, but rather should file a separate amended complaint adding the Port Authority as a defendant by February 9, 2018. (Doc. 83.) Plaintiff filed her Amended Complaint, which added the Port Authority as a Defendant, on February 2, 2018. (Doc. 84.) On March 29, 2018, I entered an order instructing the Port Authority to file a letter indicating whether it intended to join Defendant Foye's motion, (Doc. 96), and on March 30, 2018, the Port Authority filed a letter indicating that it joined in Defendant Foye's motion, (Doc. 97).

         III. Le ...


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