Home View from Underground Feds join suit against MTA alleging ADA violations

Feds join suit against MTA alleging ADA violations

by Benjamin Kabak

Over the past few months, as city and state representatives to the MTA Board have squared off over the scope and omissions in Transit’s Enhanced Stations Initiative, the MTA’s adherence to the requirements in the Americans with Disabilities Act has come under the microscope. The agency agreed a few decades ago to make 100 Key Stations fully accessible by 2020, and the MTA is, it says, on pace to meet this goal. Disabilities advocates say that, despite the Key Stations, the MTA routinely flouts the requirements of the ADA by not investing in elevators when non-Key Stations undergo renovations. That the ESI stations aren’t being made accessible is a key sticking point, and now the feds, focusing on a 2013-2014 renovation of the 6 train’s Middletown Road stop, have joined a suit alleging MTA violations of the ADA.

The suit, one of many the MTA currently faces alleging similar violations, has been working its way through federal court for nearly two years. A June 2016 DNAInfo article profiled it when the plaintiffs first filed. The feds, in something of a surprise move this week, filed a complaint-in-intervention to join the suit.

Geoffrey Berman, the U.S. Attorney for the Southern District of New York, condemned the MTA. “There is no justification for public entities to ignore the requirements of the ADA 28 years after its passage,” he said. “The subway system is a vital part of New York City’s transportation system, and when a subway station undergoes a complete renovation, MTA and NYCTA must comply with its obligations to make such stations accessible to the maximum extent feasible.”

The crux of the government’s complaint — available here as a pdf — involves the MTA’s request to the Federal Transit Administration for funding for the renovation. The agency spent $21 million but could not find a budget for elevators to make this elevated stop accessible. Prior to the renovation, the FTA had asked the MTA to defend its claim that it would be “technically infeasible” to include elevators, and the never MTA never provided such justification, the feds claim. Subsequently, the claim alleges, NYC DOT conceded that elevators could have been technical feasible had they been incorporated into early project designs. After a lengthy back-and-forth over funding, the FTA determined that the MTA had violated the ADA, and the MTA lost out on federal dollars for rehab. Now the feds are seeking an injunction mandating that the MTA install the necessary elevators at Middletown Road.

The MTA has said it will defend the suit on the merits, and disabilities advocates are thrilled that the feds are finally taking legal sides in this fight. A litigator with the Disabilities Rights Advocates noted that the feds’ involvement “sends a clear message to the MTA that they can’t continue to get away with business as usual.”

My semi-informed guess is that this is a test case for the feds and the MTA. Multiple other suits are percolating through the courts right now involving the MTA’s alleged violations of ADA requirements, but this one is a particularly strong one. It is focused on only one station and rests on a determination by a federal agency that the MTA actually violated Title II of the ADA. It’s as close to an open-and-shut case on the ADA as one may find, and if the MTA is intent on fighting it on its merits rather than settling, the feds are likely to win.

With a victory in their pockets, federal prosecutors would have stronger arguments for some of the tougher cases against the MTA, including potential suits targeting the Enhanced Station Initiatives. Transit Center’s Jon Orcutt, for one, recently told Politco New York that the MTA should probably be sued over the ESI, and this seemingly easy case puts that goal in reach. “They’re doing major work in stations and not doing anything on accessibility. They probably need to be sued directly on stations to bring that issue to a legal head,” Orcutt said.

Of course, this could still settle out, but it adds a new wrinkle to the MTA’s resistance to fulfilling the terms of the ADA on a system-wide basis, and it’s about time prosecutors forced the agency’s hand. The subway system should be on a path to full accessibility; it’s a moral imperative and a legal one too.

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SEAN March 16, 2018 - 10:21 am

Of course, this could still settle out, but it adds a new wrinkle to the MTA’s resistance to fulfilling the terms of the ADA on a system-wide basis, and it’s about time prosecutors forced the agency’s hand.

That will be the only way the MTA will learn that federal laws cant be toyed with, especially a law with clear cut provisions such as the ADA.

The subway system should be on a path to full accessibility; it’s a moral imperative and a legal one too.

It most certainly is & I have left many a comment on this subject here in regards to this subject. It is time that the MTA has the “book thrown at them” for willfully violating both accessibility statutes & the civil rights of those being effected by such violations.

Nathanael March 25, 2018 - 6:31 pm

The MTA is the *only* transit (rail/bus) agency in the *entire country* which is still trying to evade the plain requirements of the ADA.

The core requirement is very simple: when you are renovating a station for any other reason, you must make the parts you rebuild accessible. Meaning elevators or ramps. You are explicitly required to prioritize wheelchair access to the platforms and trains. The only excuses are if it would irreparably destroy a historic structure or if it is completely technically infeasible; neither of these has ever applied to the major parts of any subway station anywhere.

The MTA has wilfully disregarded the law for decades and it is time they had the book thrown at them.

The MTA has rebuilt dozens of stations — including replacing the staircases! — *without* adding elevators, which is flatly illegal. In the same time period, Chicago has made a plan for 100% accessibility, and Boston has come close to achieving 100% accessibility.

Billy G March 16, 2018 - 11:54 am

And this is a great way to get all of the elevated rail infrastructure except those which already have elevators to the street shut off. That’ll bring compliance quickly, and ensure that no more costly renovations will be needed in those stations. Win win. Oh, it’ll reduce coverage? Well, enjoy the bus, it has a wheelchair lift, and be sure to thank the lawyers for your slow ride to work.

VLM March 16, 2018 - 12:33 pm

What a strange response to an obvious moral and legal imperative to solve accessibility. The MTA isn’t going to shut down subway stations over ADA compliance, and their obligations extend well beyond elevated stations to include underground stations too.

SEAN March 16, 2018 - 1:04 pm

Billy G,

You know that access to rapid transit is a legal right under federal law don’t you?

And don’t start with… oh, they can ride the bus or just take Uber as that doesn’t square with the ADA.

Nathanael March 25, 2018 - 6:35 pm

Chicago and Phildelphia have successfully made dozens and dozens of elevated stations wheelchair-accessible, during the renovations which they had to do anyway for other reasons.

New York has spent billions on “renovating” elevated stations without bothering to make them accessible, despite it being a *federal requirement since 1993*. Someone at NYC Transit should go into the slammer for this.

AMH March 16, 2018 - 4:39 pm

It just kills me that they used the ADA as an excuse not to re-open closed stairways and entrances, yet here they are doing entire station rehabs without any accessibility improvement. The ESI rehab of the 110 St IND station is a great opportunity to re-open a bunch of entrances; otherwise what’s the point? The station is in great shape. Just having a closer staircase makes a station more accessible to someone who has trouble walking very far.

eo March 16, 2018 - 4:53 pm

You don’t seem to realize that this is a well thought of move by the powers to be at the MTA. Everyone, including the people at the MTA, knows that the MTA will eventually need to install elevators and make all stations accessible. The key word though is “eventually”. Making all stations accessible now will require a few billion dollars. That is money that Cuomo, DeBlazio and the other politicians do not want to spend now because they do not have them and will need to jack up taxes or fares to find them. So they find all ways and justifications to delay making stations accessible. I am not saying it is the right thing to do, it is what the MTA is made to do because it is not given the money to make the stations accessible. In all likelihood even the people at the MTA who made the decision for the 6 station and the attorneys defending it know that their case is bad, not just legally but morally. Unfortunately for them they need to claim that making the station accessible was impossible because that is what effectively their boss is asking them to do by not giving the agency enough money. It is basically a move to delay truing up and passing the hot potato to the next governor, mayor, etc.

This is even more complicated by the fact that many stations are in a bad shape and could use overhaul. Given the public outcry, Cuomo chose to overhaul a bunch of stations. He also effectively made the choice of how much money to spend and on overhauling probably twice as many stations without making them accessible than would have been possible to do if accessibility was included. To the voting public overhauling 30 stations sounds a lot better than 15 or less. Yes, someone will sue as someone has already done that, but by the time they win all appeals Cuomo will be up to better things than being responsible for this and it will be someone else’s problem to find the money to pay for the accessibility features. And yes it will cost more even in inflation adjusted dollars because it will involve redoing some work already done in the initial overhaul, but it is someone else’s (the taxpayer’s) money that is being spent here so it does not matter.

There is not anything sinister at the MTA or the people who work there, it is all about the money and the politics of taxes and fares. Don’t just blame the MTA, but be honest that the average subway user (or the average taxpayer) would not willingly pay a higher fare (or higher taxes) so that the stations are accessible. So implicitly the politicians are responding that while not stating the general sentiment publicly. It is a shame and it is not right, but it is true that the majority of the public is not going to willfully pay for immediate accessibility everywhere and it will punish any politician (including Cuomo)who makes it do so by raising fares or taxes. So accessibility is coming in a slow trickle that the general public will not stop.

J Adlai March 17, 2018 - 1:05 pm

The curious thing about ESI is that most of the stations selected for the program were not the stations most in need of a rehab, and many of them were not due to be rehabbed in the Capital Program. The notion that ADA access was eliminated from scope in order to get to as many stations in need as possible doesn’t really hold water once you account for that.

AMH March 19, 2018 - 11:31 am

Exactly, many of these stations are in great shape. They’re spending millions to replace nice vintage tilework with stuff that will probably look like crap in a few years. And don’t get me started on ripping out those iconic globe lampposts.

Nathanael March 25, 2018 - 6:33 pm

The MTA is run by idiots. Their repeated decisions to blow money on illegal non-ADA rehabs mean that they have to rehab all the stations *twice*, which costs twice as much money.

No other agency in the entire country has pulled this BS. Boston is getting very close to 100% accessibility. Chicago is too. So is Philadelphia.

John-2 March 17, 2018 - 4:10 am

The fact that we’re talking about an elevated station here, as opposed to an underground one, also helps the feds’ case here, since we’re talking not about work that would possibly involve the relocation of buried infrastructure, but ADA elevators that would mainly involve strengthening structural supports and possible fare control access adjustments.

But part of the problem here is also the huge construction costs and cost overruns the MTA seems to incur on any project — the same things that make expansion of the system prohibitively expensive also make mandated upgrades to existing stations a budget nightmare. Get the overall construction costs under control, and adding three ADA elevators at Middletown Road and other stations wouldn’t be the money pit for the MTA it is today.

Allison March 17, 2018 - 1:21 pm

The thing is, even the stations that are supposedly “accessible” are only accessible some of the time.

I am only partially mobility-impaired — I can use stairs if I must, but they hurt my knees and I’m always in danger of falling — and I frequently find that the only elevator to a platform or a mezzanine is out of order. If I couldn’t use stairs at all, I would be completely stuck. (Maybe I could call 911 and get firefighters to get me on/off the platform.)

I imagine that most people who can’t use stairs look at how unreliable the “access” is and don’t try the subway at all.

(BTW, the same is true for Metro-North.)

I notice that in situations where elevators are deemed necessary for able-bodied riders, there are (almost?) always 2 or 3.

It seems that “accessibility” is still viewed as a frill and worthy only of lip service. Maybe if architects and engineers and planners had to spend a week confined to a wheelchair before signing off on a project they’d look at things differently….

SEAN March 17, 2018 - 7:12 pm

Alison, I Understand where you are coming from, but I have found elevators on Metro-North to be just fine & this is coming from someone who is visually challenged. On the subway however, that’s another story & I try to avoid elevators as much as possible as one never knows if a stinky surprise is hiding inside of one.

Allison March 20, 2018 - 8:53 pm

I’m mainly familiar with the elevators at GCT and those at Tarrytown.

GCT has plenty of redundancy, and I haven’t ever seen one obviously out of service.

Tarrytown is another story; there’s no redundancy, and before the platforms and overpasses were rebuilt, the elevators were out pretty frequently. I remember putting in complaint card after complaint card at GCT about the elevators, especially the station-side one.

They’re better now, but there are still times when one or the other is either roped off or the door won’t close or it just doesn’t move. Not frequent, but if I had no alternative, it would sour me pretty fast on using MN.

The problem with MN may be that most of their elevators are outside and aren’t really resistant enough to the weather — rain, salt, dirt, etc. This wouldn’t be that much of a problem — except that there’s no redundancy. I have yet to run across an outlying station with more than one elevator per platform.

The MTA doesn’t have that excuse. Every elevator I’ve used on anything like a regular basis has been out of order regularly. Even when they work, they’re amazingly slow and in bad condition. Yes, they’re sometimes also stinky or worse, but that’s true of pretty much every corner of the subway. Again, if I couldn’t use the stairs in a pinch, I basically couldn’t use the subway at all.

The feeling I get is that the MTA feels that it’s unreasonable to expect them to provide in any way for mobility-impaired passengers and will do whatever it can get away with to discourage them. BTW, I’ve heard a number of subway fans express the same idea — disabled people should simply stay and rot in their nursing homes and not bother “real” (=non-disabled) people with their needs.

I don’t think they forgot about the ADA in their ESI planning. I think they simply ignored it and figured that once the construction was done, it would be too late for anyone to do anything about it. They figured chutzpah would win, like it always does.

Nathanael March 25, 2018 - 6:43 pm

It would be poetic justice if someone figured out who approved the illegal station renovations — the ones which didn’t have elevators — and shot their knees off, so that they were wheelchair bound. I think that might change things.

Nathanael March 25, 2018 - 6:36 pm

Move to Boston. They’re installing redundant elevators in every station and have a scheme for reporting elevator issues.

Or Phildelphia — because they are too.

Or Chicago — because they are too.

I have no idea what’s wrong with the sickos at NYC Transit, who are intent on making life unnecessarily difficult for disabled people and violating federal law for no particular reason.

Brooklynite March 17, 2018 - 3:59 pm

The MTA spent two years rehabbing the highest subway station in the world (Smith 9th), which is located directly above a parking lot, and chose not to add elevators. The majority of the system’s elevated stations have been closed for multi month rehabs since ADA was passed in 1990, and only a small fraction of those were made accessible. A lawsuit such as this one is long overdue, IMO.

Nathanael March 25, 2018 - 6:37 pm

Not only is it long overdue, the people running the MTA during those illegal rehabs should get hit with criminal charges.

And they should be forced to make the illegally-renovated stations accessible. The money should be taken directly out of the salaries and pensions of the people who approved the illegal renovations.


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