In a rare move, the U.S. Supreme Court has ordered the state and city to file responses to a disabled lawyer’s petition for writ of certiorari pertaining to his preliminary-injunction motion aimed at forcing officials to make fast changes—including installing temporary ramps and lifts—at the Kings County Supreme Court civil courthouse.
The court’s directive, which came via three separate Jan. 15 letters sent to government entities, including the Office of Court Administration, comes as part of an increasingly fierce legal battle being waged between disabled lawyer Caner Demirayak and government officials over what type of structural and other changes must be made—if any—at the courthouse to make it accessible to the disabled.
“This could mean that somebody in the Supreme Court … thinks that this case is very important to promote the inclusion of people with disabilities,” Demirayak said this week of the Supreme Court’s move to call for the state’s and city’s responses.
But some lawyers experienced with the Supreme Court’s cert-petition calls for responses say they are not especially surprised it has been made given the range of legal issues raised in Demirayak’s pro se case.
Demirayak, who uses a wheelchair due to muscular dystrophy, visits the massive 360 Adams St. courthouse up to three times a week as a personal-injury litigator. He claims that he faces significant physical obstacles to doing his job throughout the 10-story building. In 2017, he launched a federal lawsuit against the city, the state, OCA and related officials under the American with Disabilities Act and other laws.
As part of his suit, he lodged a preliminary-injunction motion that sought certain fast relief, including that the courthouse keep its few wheelchair-accessible bathrooms in working order, that officials remove signs allegedly misrepresenting the courthouse’s ADA accessibility, and that they quickly install of a temporary stair-lift for a fourth-floor mezzanine staircase as well as a temporary ramp in a jury coordinating part.
So far, his preliminary-injunction motion had found no life. In November 2017, U.S. District Judge William Kuntz II of the Eastern District of New York, who is presiding over Demirayak’s suit, denied the injunction in writing. The U.S. Court of Appeals for the Second Circuit then denied it via its own August 2018 opinion.
Demirayak, though—a young and aggressive litigator about five years out of St. John’s University law school—filed a cert petition pertaining to the motion with the U.S. Supreme Court on Nov. 29, 2018.
In turn, the city, the state and the Office of Court Administration, all named in the petition, chose not to answer and file a response brief. Lawyers who practice before the Supreme Court say that is a fairly common occurrence, especially given the remote chance, at least in most instances, that a case has Supreme Court merit and certiorari will be granted.
Now, though, the Supreme Court has ordered responses from each of the defendants in Demirayak v. City of New York, thereby indicating that it wants to know more or at least consider the certiorari petition more closely.
While the chance of the petition actually being granted remain remote, studies do show that once the court orders opposing parties to respond, the odds of the petition being granted increase markedly.
For instance, according to a 2009 empirical analysis of Supreme Court certiorari-petition procedure, the court called for responses to certiorari petitions in just 839, or 2.7 percent, of 31,408 petitions filed during the 2001 to 2004 Supreme Court terms. But once such a response was ordered, the analysis reported that “the litigant [then] knows that her case is now in that smaller subset of cases that the Court is more interested in, of which it ultimately grants plenary review in 8.6% of all cases.”
The analysis, written by David C. Thompson and Melanie F. Wachtell and published in the George Mason University Law Review, continued, “Thus, from the litigant’s perspective, the likelihood of the case being heard increases from 0.9% to 8.6%, all else being equal.”
On Tuesday, New York City and its officials named in Demirayak’s lawsuit, represented by the city Law Department, declined to comment to the Law Journal on the Supreme Court’s letter. Spokesman Nicholas Paolucci added, in an email, only that “we’ll respond in the litigation.”
The state Attorney General’s Office did not respond to a request for comment on the certiorari issue and the Supreme Court’s directive for a response. OCA, the third government entity to receive the high court’s letter, said in an email to the Law Journal only that the Attorney General’s Office is representing it in the case and that any comment should come from that office.
For Demirayak, the move by the court to order the response briefs, represents a strain of hope for his injunction motion. And it is important to his broader lawsuit, he said in an interview this week, if only because it underscores the seriousness of the legal issues he has brought.
He is already feeling buoyed, he said, because in the main lawsuit, which could stretch on for months or years longer, Kuntz decided last week to deny the state’s motion to dismiss the main suit. (Meanwhile, the city and its related defendants have chosen not to move to dismiss the case.)
Demirayak said that he realizes that the odds of his preliminary-injunction motion being taken up by the Supreme Court remain very low, but that the direction for a response shows some interest by the court that, on learning of the letters sent to his opposition, “I was a little surprised, and I was ecstatic pretty much, to be honest with you.”
He continued, “I’m aware of the fact that the posture of the case lowers the possibility of the Supreme Court granting cert, because the case comes on interlocutory appeal, and it is a summary order denying the motion from the Second Circuit, and that usually wouldn’t have any precedential value.
“But it is a very rare issue [an ADA case involving a disabled lawyer using a courthouse] that will be unlikely to come up again,” he went on, “and if it does come up again, any court in the country will rely upon that Second Circuit decision going forward. So review is definitely warranted here, either now or maybe on a different posture later in the case.”
Mark Zauderer, a longtime Manhattan commercial litigator and today a partner at Ganfer Shore Leeds & Zauderer, said in assessing the Supreme Court’s call for a response from the defendants, that in Demirayak’s particular case he was not surprised by the court’s decision.
“Here, there are so many claims and statutes implicated,” he said of Demirayak’s overall lawsuit, “that the court would want to know what it might be delving into if it granted review” on the preliminary-injunction motion.
In Judge Kuntz’s 2017 written denial of Demirayak’s preliminary injunction motion, he wrote in part that “plaintiff [Demirayak] seeks far more than merely prohibitory relief or to maintain the status quo,” adding that “although the ADA and the Rehabilitation Act do provide for such permanent, prospective relief, it is typically available only as a remedy after a finding of liability. If the court granted plaintiff’s request at this juncture, it would be giving him the ultimate, final relief he seeks without requiring him to prove the merits of his case at trial.”
The Second Circuit, wrote in part, its own decision, that “the evidence presented by plaintiff also does not establish that extreme or serious damage would result without the ramps and lifts that plaintiff has requested. The only specific allegation that plaintiff makes as to the damage caused to him by this lack of ramps and lifts is his inability to observe a single trial on August 16, 2017.” The three-judge panel continued, “As defendants note, plaintiff has otherwise been provided full access to an ADA-accessible courtroom when he practices in the courthouse. The record thus falls short of the clear showing of extreme and serious damage that is required.”
But Demirayak, in his petition brief to the Supreme Court, argues in part that a public entity can’t “avoid liability” under Title II of the Americans with Disabilities Act by providing “alternate accessible accommodations” without being required to show such accommodations are “effective” to afford meaningful access in an existing court facility, as mandated by Tennessee v. Lane, 541 U.S. 509 (2004).