Scharff v. Cnty. of Nassau & Shila Shah-Gavnoudias, 10 CV 4208 (DRH)(AKT)

• Court: United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
• Parties: LORI SCHARFF, MICHAEL GODINO, EDWARD MOLLOY and LONG ISLAND COUNCIL OF THE BLIND, Plaintiffs, v. COUNTY OF NASSAU and SHILA SHAH-GAVNOUDIAS, COMMISSIONER OF NASSAU COUNTY PUBLIC WORKS, in her official capacity, Defendants.
• Docket Number: 10 CV 4208 (DRH)(AKT)
• Decision Date: 02 June 2014

LORI SCHARFF, MICHAEL GODINO, EDWARD MOLLOY
and LONG ISLAND COUNCIL OF THE BLIND, Plaintiffs,
v.
COUNTY OF NASSAU and SHILA SHAH-GAVNOUDIAS, COMMISSIONER
OF NASSAU COUNTY PUBLIC WORKS, in her official capacity, Defendants.

10 CV 4208 (DRH)(AKT)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

Dated: June 2, 2014

MEMORANDUM & ORDER

APPEARANCES:

NASSAU SUFFOLK LAW SERVICES COMMITTEE
Attorneys for Plaintiff
By: Robert Briglio, Esq.

LAW OFFICE OF MARTIN J. COLEMAN, P.C.
Attorneys for Plaintiff
By: Martin J. Coleman, Esq.

NASSAU COUNTY ATTORNEY
JOHN CIAMPOLI
Attorneys for Defendants
By: Ralph J. Reissman, Esq.

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.

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("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.

BACKGROUND

The material facts, drawn from the Amended Complaint and the parties' Local Civil Rule 56.1 Statements, are undisputed unless otherwise noted.

I. Plaintiffs

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 not-for-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

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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

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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.)

II. Defendants

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

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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

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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...