Tuesday, June 19, 2018

Bergstein & Ullrich prevail in disability discrimination case

A state appellate court has reinstated a verdict in favor of a sightless woman who was forced to resign her health club membership after it rescinded an accommodation that allowed her to use exercise equipment.

The case, Reveyoso v. Town Sports, produced a jury verdict in the amount of $30,000 after a Manhattan jury determined that the health club violated the anti-discrimination provisions of the New York City Human Rights Law. Following trial, the judge granted the defendant's motion for a new trial, ruling that the verdict was against the weight of the evidence. 
On appeal, the Appellate Division, First Department, unanimously ruled that the jury had a factual basis to find that the gym had initially granted the plaintiff an accommodation by walking her to an exercise bike, and that this accommodation had proceeded without any complications. The appellate court further noted that the jury was able to find that the gym had rescinded the accommodation six months later without any justification and that the jury was not required to credit the gym's defense that it had also asked plaintiff to call in advance of her use of the gym or that she had unreasonably failed to agree to that new arrangement.

Arlene Boop of Alterman & Boop LLP, and Stephen Bergstein, of Bergstein & Ullrich, LLP, represented Reveyoso. The Appellate Division's ruling is among the few cases under the City Human Rights Law that has upheld a verdict in favor of a sightless woman. The ruling further stands for the proposition that an entity is not permitted to alter a reasonable accommodation without sufficient justification.
The Court's ruling is below:

Reveyosos v Town Sports Intl., LLC, June 14, 2018

Order, Supreme Court, New York County (W. Franc Perry, J.), entered November 13, 2017, which, to the extent appealed from as limited by the briefs, following a jury verdict in plaintiff's favor on her claim for disability discrimination in violation of the New York City Human Rights Law (City HRL), granted that portion of defendant's cross motion seeking to set aside the jury verdict as against the weight of the evidence pursuant to CPLR 4404 and ordered a new trial, unanimously reversed, on the law and the facts, defendant's cross motion denied, and the matter remanded for consideration of plaintiff's motion for attorneys' fees.

The jury verdict was not against the weight of the evidence (see McDermott v Coffee Beanery, Ltd., 9 AD3d 195, 206, 777 N.Y.S.2d 103 [1st Dept 2004]). A fair interpretation of the trial evidence shows that plaintiff, a sightless 66-year-old woman, asked for, and received, from defendant, owner of a commercial gymnasium open to the public, an accommodation for her disability in the form of an employee escort from the gym entrance downstairs to her preferred exercise machine. The employee would then program the machine to plaintiff's preferred settings and would be available to escort plaintiff back upstairs when she was finished exercising. This accommodation functioned, with a minimum of disruption for either party, over the next six months, during which period plaintiff visited the gym a half-dozen times. Notably, there is no evidence in the record that the accommodation cost defendant any money at all, or otherwise represented any sort of undue hardship on defendant as that term is defined in the statute (see Administrative Code of City of NY § 8-102[18][a]-[d]; Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824, 835, 988 N.Y.S.2d 86, 11 N.E.3d 159 [2014]). While plaintiff typically had to wait a few minutes for defendant to find an employee to assist her, she did not mind the short wait.

Since the parties had already reached a reasonable accommodation, in the form of the employee escort, there was no legally cognizable reason for defendant to ask plaintiff to have Medicare provide her with a trainer. Indeed, in so doing, defendant would have been abdicating its legal obligation to provide a reasonable accommodation altogether, by shifting the burden entirely to another party. Defendant's witnesses testified that it also proposed an alternative accommodation — in the form of asking plaintiff to call in advance of her visits to permit defendant to arrange assistance for her. Plaintiff testified that this did not occur and that she was told by the gym's employees that she would no longer be assisted to and from the exercise machine. The jury resolved this credibility determination in plaintiff's favor (see Laham v Bin Chambi, 34 AD3d 374, 375, 824 N.Y.S.2d 641 [1st Dept 2006]).

Based on our review of the record, defendant's request for a reduction of the compensatory damages award is without merit.

Plaintiff did not object to the trial court's refusal to charge punitive damages, and therefore did not preserve the issue for review (see CPLR 4110-b; Washington v Atenco, 103 A.D.3d 529, 529, 959 N.Y.S.2d 437 [1st Dept 2013]).

Since the trial court, in light of its decision, did not consider plaintiff's motion for attorneys' fees it should consider this matter upon remand.

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