Members of the New York Army National Guard work to clear streets in Far Rockaway, Queens after Hurricane Sandy. (Courtesy New York National Guard 204th Engineer Battalion)
A settlement reached in protracted litigation that was punctuated and defined by Hurricane Sandy will provide better evacuation and sheltering for the disabled during major storms and other disasters, city officials and advocates said Wednesday.
In September 2011, advocates filed suit in the Southern District charging violations of the Americans with Disabilities Act, (ADA) in the wake of Hurricane Irene a month earlier.
The suit, Brooklyn Center for Independence v. Bloomberg, 11-cv-6690, alleged that city planning was deficient for keeping the disabled out of harm’s way during disasters.
The city countered that it already had evacuation and shelter procedures in place and were constantly evaluating and improving them.
Then, in the middle of the case, with trial before Judge Jesse Furman (See Profile) less than six months away, Hurricane Sandy hit in October 2012, putting the plaintiffs’ allegations—and the city’s defense—to the ultimate test. Some 118,000 of the 889,651 New Yorkers who have disabilities lived in areas that were evacuated during Sandy.
“Hurricane Sandy was as an incredible tragedy, but for the case, it was a treasure trove of evidence about how devastating the failure to plan for emergencies really is for New Yorkers,” said Julia Pinover of Disability Rights Advocates, one of several lawyers who represented the plaintiffs in the class action.
Furman presided over a six-day bench trial in April 2013 that saw some 25,000 pages of documents put into evidence, including more than 20 city plans for evacuation and shelter.
In November 2013, Furman found the city liable for violating the ADA, the Rehabilitation Act and the New York City Human Rights law. He said the city’s plans were “inadequate to ensure that people with disabilities are able to evacuate before or during an emergency, they fail to provide sufficiently accessible shelters; and they do not sufficiently inform people with disabilities of the availability and location of accessible emergency services.”
But the judge also praised the city in many respects, in an opinion that set the stage for negotiations that ended with a settlement notice filed Monday.
“This mountain of evidence and argument confirms that planning for and responding to emergencies and disasters is a Herculean task, and that in many—perhaps most—respects, the city has done an outstanding job,” Furman said (NYLJ, Nov. 8, 2013).
The judge told the parties to start working on remedies, or he would hold a trial and set the remedies himself.
A trial date was set for Monday but Furman took the case off the trial calendar on Sept. 3 after the parties told him they were seriously close to settling.
In court papers filed Monday, attorneys for the plaintiffs and the city Law Department submitted memorandums of understanding on sheltering, door-to-door canvassing, accessible transportation (the fact that less than 20 percent of the subway system is accessible was a significant issue), emergency communications, power outages, the appointment of a coordinator for “disability access and functional needs” the creation of a disability advisory community panel and, in an area of acute need, high-rise evacuation plans.
In the memorandums, the city agrees to establish a minimum of 60 accessible shelters to accommodate some 120,000 people with disabilities by September 2017.
By August 2017, the city is expected to have a fully operational post-emergency canvassing operation, led by employees from city agencies. Staffers will go door-to-door after disasters to see what people need in terms of food, water, electricity, medical care and medical equipment.
The canvassing operation builds upon city efforts during Hurricane Sandy when it coordinated groups of volunteers to help people get prescriptions filled and supply them with food and water.
Also by August 2017, the city is expected to have an improved transportation plan for evacuating people with disabilities, including plans for expanded deployment of accessible vehicles during emergencies.
And by September 2018, a soon-to-be-established high rise building evacuation task force is expected to have a high-rise evacuation plan in place.
Corporation Counsel Zachary Carter issued a statement calling the agreement “a great example of how city agencies and disability rights groups can work together to ensure that those in the disability community have a meaningful voice in coordinating those services.”
Pinover echoed that sentiment Tuesday, saying that once the liability issue was settled, “both sides really came to the table with a willingness to work together. The city and DRA are on the same side in many ways because we all want to save as many lives as possible in the next disaster.”
Plaintiffs counsel are Pinover, Sid Wolinsky, Christine Chuang and Rebecca Williford of Disability Rights Advocates; and Daniel Brown, a partner with Sheppard Mullin Richter & Hampton, who worked on the case pro bono.
Assistant Corporation Counsels Mark Toews and Carolyn Kruk represent the city.