Tuesday, November 10, 2015

Blind man may have standing to sue NYC over Central Park's ADA violation

I wonder why this case did not get more attention. A blind man sues the City of New York alleging that it violates the Americans with Disabilities Act because it does not allow equal or reasonable access to Central Park, i.e., the City does not provide proper signage at all inaccessible entrances to its facilities. The Court of Appeals says he may have a case.

The case is Bernstein v. City of New York, a summary order decided on October 26. The question is whether plaintiff has standing to sue. This issue arises more often than you think. Many ADA violations are attacked by plaintiffs challenging structural and other deficiencies. But they cannot sue establishments and public areas for the hell of it. They have to show they have a stake in the lawsuit. We call it standing.

To have standing in an ADA claim, a plaintiff must show he (1) alleged past injury under the ADA; (2) it was reasonable to infer the discriminatory treatment would continue; (3) it was reasonable to infer, based on the frequency of prior visits and proximity of defendant's services to the plaintiff's home; and (4) plaintiff intended to return to the location.

For the most part, plaintiff satisfies these standards. He has visited the Park in the past, and points out that the missing detectable warnings at crosswalks make it impossible for him to know that he is nearing a roadway with moving traffic. He cannot cross streets in the Park without the assistance from strangers. But the Complaint has a deficiency in regard to plaintiff's intent to return to the Park. He says he has visited the park hundreds of times and has been to New York 30 times per year for ten years. But the Complaint says nothing about his intent to return to the Park in the future. On remand, the district court must undertake further factfinding on this issue. 

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