Opinion
18 Civ. 5792 (PAE)
03-18-2022
AMERICAN COUNCIL OF THE BLIND OF NEW YORK, INC., MICHAEL GOLFO, and CHRISTINA CURRY, on behalf of themselves and all others similarly situated, Plaintiffs, v. CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF TRANSPORTATION, ERIC ADAMS, in his official capacity as Mayor of the City of New York, and YDANIS RODRIGUEZ, in his official capacity as Commissioner of the New York City Department of Transportation, Defendants.
REMEDIAL ORDER
PAUL A.ENGELMAYER JUDGE
WHEREAS, on June 27, 2018, Plaintiffs-a class of blind and low-vision New York City pedestrians-brought this action alleging, inter alia, that the City of New York (the "City") and the New York City Department of Transportation ("DOT," and with the City, "Defendants") violated Title II of the Americans with Disabilities Act ("ADA"), Section 504 of the Rehabilitation Act, and the New York City Human Rights Law ("NYCHRL") by failing to provide non-visual crossing information at the vast majority of its signalized intersections;
WHEREAS, on October 20, 2020, the Court issued an Opinion and Order that, inter alia, found the City liable for violations of the above statutes, including by failing to make the overall New York City pedestrian grid meaningfully accessible to blind and low-vision persons;
WHEREAS, on December 27, 2021, the Court issued an Opinion and Order setting forth the Court's rulings as to the remedy necessary to bring the City into compliance with the above statutes; and WHEREAS, as part of that Opinion and Order, the Court directed the parties to submit a "joint proposed remedial order for the Court's review," consistent with the Court's Opinion and Order setting forth "the operational detail necessary to reliably guide [the remedial order's] implementation;"
This Remedial Order incorporates by reference the Court's Opinion & Orders at ECF Nos, 194 and 201.
NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED as follows:
I. General Terms
1. To the extent that Defendants add new pedestrian signals to intersections in New York City, Defendants must at the same time install Accessible Pedestrian Signals ("APS") at those intersections.
Terms used in this remedial order have the same meaning given to them in the Court's December 27, 2021 Opinion and Order, unless noted otherwise.
2. By the end of 2031, Defendants must equip at least 10, 000 signalized intersections in New York City with APS ("Phase I").
3. By the end of 2036, Defendants must equip all signalized intersections in New York City with APS, subject to Defendants' right, beginning in 2032, to move to extend this deadline based upon a showing that the overall pedestrian grid has by then become meaningfully accessible. in accordance with Paragraphs 8 through 10 of this remedial order ("Phase II").
4. APS must be installed in accordance with the technical specifications set forth in the Manual on Uniform Traffic Control Devices ("MUTCD") or any succeeding standards, regulations, or changes in law setting forth the required technical specifications.
II. Implementation (Phase I)
5. From 2022 through 2031, Defendants must equip the following numbers of signalized intersections with APS, per year, at a minimum;
Each intersection to be equipped with APS usually requires the installation of multiple APS devices, which varies depending on each intersections' geometry.
It should be noted that for budget and contracting purposes, DOT follows the fiscal year which begins on July 1 and ends on June 30. Therefore, for purposes of this order, the fiscal years shall apply, such that the targets for calendar year 2022 include portions of fiscal years 2022 and 2023, for calendar year 2023 include portions of fiscal years 2023 and 2024, and so on.
a. 2022: 400 intersections;
b. 2023: 500 intersections;
c. 2024: 700 intersections;
d. 2025: 900 intersections;
e. 2026: 900 intersections;
f. 2027-2031: Sufficient intersections to ensure that-when installed at a consistent rate over five years-Defendants will have equipped 10, 000 intersections with APS by the end of 2031, with targets as follows:
L 2027: between 1, 000-1, 200 intersections;
ii. 2028: between 1, 000-1, 200 intersections; iii. 2029: between 1, 000-1, 200 intersections; iv. 2030: between 1, 000-1, 200 intersections; and v. 2031: between 1, 000-1, 200 intersections.
g. In calculating the numbers of signalized intersections outfitted with APS in any given year, numbers of APS installations in excess of the required targets in this paragraph can be carried over to cover any shortfall in a future year; and
h. APS installations at newly signalized intersections count toward the required targets in this paragraph.
III. Prioritization
6. Defendants retain the discretion to determine which signalized intersections should be selected and prioritized to be equipped with APS. The prioritization of intersections for APS installation shall be as follows:
a. By the end of 2024, Defendants must satisfy all 246 public requests for APS that were outstanding as of December 31, 2020. A list of said 246 public requests is annexed hereto and incorporated herein as Exhibit A.
b. Defendants must prioritize public requests for APS received after December 31, 2020 in accordance with Section V below.
c. By the end of 2031, Defendants must equip every signalized intersection with APS that, as of December 31, 2020, was equipped with a Leading Pedestrian Interval ("LPI") or an Exclusive Pedestrian Phase ("EPP"). Lists of the 4, 396 intersections with LPIs that do not have APS as of December 31, 2020 and the 511 intersections with EPPs that do not have APS as of December 31, 2020 are annexed hereto and incorporated herein as Exhibits B and C. Defendants intend to first address the LPI and EPP intersections listed in Exhibits B and C and the outstanding public requests listed in Exhibit A, and thereafter make every effort to frontload all intersections with LPIs and EPPs in Phase I.
d. By the end of 2031, Defendants must equip all 424 intersections that were signalized without APS on or after June 27, 2015 with APS. A list of said 424 intersections is annexed hereto and incorporated herein as Exhibit D. To the extent
these intersections do not overlap with previously enumerated categories (public requests, LPIs, and EPPs), Defendants have discretion to defer installation of APS at these intersections until the end of the Phase I period.
e. For the remaining intersections that are not public requests, LPIs, or EPPs, Defendants will choose either the Prioritization Tool or other efficient prioritization based on major factors underlying the Prioritization Tool. Whichever approach Defendants choose, Defendants will develop a mechanism for sequencing the coming wave of APS installations that is efficient, while being rigorous, sensitive to public input, and alert to the important factors on which outcomes under the Prioritization Tool tend to turn.
f. Defendants will consult with both Plaintiffs and the APS Advisory Committee in formulating its sequencing mechanism described above in subsection (e) and agree to consider input received. If Defendants do not use the Prioritization Tool as the sequencing mechanism described above in subsection (e), Defendants will communicate the chosen approach to Plaintiffs, the APS Advisory Committee, and the Independent Monitor with reasonable notice prior to implementation.
g. Defendants shall ensure that intersections selected for APS installation during the Phase I period are fairly distributed within New York City.
h. The Parties recognize this is an ongoing, dynamic process, and Defendants retain discretion to change or alter their mechanism for sequencing, so long as such changes remain consistent with the parameters and consultation described in subsections (e)-(g) above.
7. The Court, on its own initiative or on application of any party or the Independent Monitor in accordance with the dispute resolution procedures set forth in Section X of this remedial order, may revisit the mechanics of implementation of and/or amend the requirements and specifications set forth in this remedial order if it determines that Defendants are not sequencing APS installations in a manner that is efficient, rigorous, sensitive to public input, and alert to the factors on which outcomes under DOT's historical Prioritization Tool turn, IV. Implementation (Phase II)
8. From 2032 through the end of 2036, Defendants must equip signalized intersections with APS at a rate sufficient to ensure that-when installed at a consistent rate over five years- Defendants will have equipped all signalized intersections in New York City with APS by the end of 2036, subject to Defendants' right, beginning in 2032 to move to extend this deadline up to the deadline to which the city has committed during this litigation (2051) based upon a showing that the overall pedestrian grid has by then become meaningfully accessible.
9. Defendants retain the discretion to determine which intersections should be selected and prioritized to be equipped with APS, provided, however, that the Court, on its own initiative or on application of Plaintiffs or the Independent Monitor in accordance with the dispute resolution procedures set forth in Section X, may revisit the mechanics of implementation of and/or amend the requirements and specifications set forth in this remedial order if it determines that Defendants are not sequencing APS installations in a manner that is efficient, rigorous, sensitive to public input, and alert to the factors on which outcomes under DOT's historical Prioritization Tool turn.
10. To extend the Phase II deadline, Defendants may seek to establish that sufficient APS have been installed to ensure that blind, deafblind, and low-vision pedestrians have meaningful access to the pedestrian grid. For avoidance of doubt, all intersections with LPIs and EPPs must have APS installed for Defendants to meet this burden.
V. Public Requests for APS Installation
11. During the pendency of this remedial order, including during both Phase I and Phase II, DOT must evaluate all "reasonable accommodation" requests from the public submitted to DOT for the installation of APS at existing signalized intersections within four months of receiving them to determine whether they are reasonable, 12. For public requests received between January 1, 2021 and December 31, 2021, Defendants must evaluate and equip those intersections with APS by the end of calendar year 2024.
13. If a future public request is not found to be unreasonable, Defendants must equip the requested intersection with APS within the following eighteen months. Within these parameters, Defendants retain the discretion to sequence and schedule installation of APS at particular intersections.
14. If Defendants receive more than thirty-five future public requests in a calendar year, they may move the Court for an order relieving them from prioritizing the requests exceeding thirty-five per year if prioritizing those requests would result in inequity or disruption.
VI. APS Advisory Committee
15. Defendants will establish an APS Advisory Committee of between five and ten persons that will meet quarterly beginning in September 2022, 16. Defendants may choose up to four individuals from DOT and/or the Mayor's Office of People with Disabilities ("MOPD"), at least one of whom is the point person within DOT with responsibility for overseeing implementation of the Order, identified in Paragraph 27 below.
17. Plaintiffs may select up to two individuals for the APS Advisory Committee.
18. The PASS Coalition (Pedestrians for Safe and Accessible Streets) may select up to two individuals for the Advisory Committee.
19. Once this initial cohort is formed, the Independent Monitor will invite other members of the Class and interested members of the blind and low vision community to join the APS Advisory Committee. Thereafter, the APS Advisory Committee will jointly select interested members of the Class and interested members of the blind and low vision community to serve on the APS Advisory Committee. At all times, non-City employees must make up a majority of the APS Advisory Committee, City employees not serving in their official capacity may be included in this majority.
20. The composition or structure of the APS Advisory Committee may be revisited at any time with the consent of both Parties and the approval of the Independent Monitor appointed in accordance with Section VIII hereto.
21. The Independent Monitor may also attend those quarterly meetings, and the Independent Monitor may communicate with any individual members of the Committee.
22. The purpose of the APS Advisory Committee is to provide an avenue for the Class to provide input and feedback on DOT's APS program, with a goal of continued outreach and collaboration between blind and low vision pedestrians and DOT. The APS Advisory Committee will provide input and feedback on topics such as prioritization, APS features, installations, and best practices, including compliance with the MUTCD.
23. In addition to the annual quarterly meetings, the APS Advisory Committee will hold twice-yearly "town hall" sessions where the public can attend and/or submit public comments and raise issues relevant to APS and the remedial plan. Virtual submission of comments will be permitted.
24. Defendants will bear the cost of any expenses relating to the APS Advisory Committee.
VII. Pursuit of APS Funding
25. Defendants shall energetically pursue all sources of funding that could support the installation of APS consistent with the remedial plan and for which the Defendants are eligible. The Court's Opinion and Order set out in detail numerous potential federal funding sources. ECF No. 194 at 64-67.
26. In the event that Defendants contend during the life of the remedial plan that they have become financially incapable of meeting their obligations so as to warrant modification of the remedial plan, Defendants shall demonstrate that they have consistently and capably pursued all potential funding sources. Defendants' inability to so demonstrate would weigh heavily against any application for modification on this ground.
VIII. Oversight and Monitorship
27. Defendants must appoint and maintain a single point person within DOT with responsibility for overseeing implementation of the order. Defendants have designated DOT's Associate Deputy Commissioner for Traffic Operations as said point person.
28. Defendants must also appoint and maintain a point person within DOT with responsibility for assuring the City's comprehensive pursuit of funding to support installation of APS. Defendants have designated DOT's Associate Commissioner for Grants and Fiscal Management as said point person.
29. The Court will appoint an Independent Monitor to oversee compliance with this remedial order.
a. Purpose: The Independent Monitor will serve two purposes: (1) to gather information and report neutrally to the Court on the implementation plan; and (2) to mediate between the City, Plaintiffs, and the public, so as to anticipate, aver, and resolve conflicts without a need for recourse to the Court.
b. Responsibilities: The Independant Monitor is responsible for reviewing: (1) the pace at which the City installs APS; (2) the City's prioritization of intersections for APS installation and whether the City has deviated from the prioritization described in Section III above; and (3) that APS installations are compliant with the MUTCD or any succeeding regulations, standards, and/or guidance that amend the MUTCD.
c. Notice: If the Independent Monitor determines that the City is not in compliance with this remedial order, and has been unable to resolve the issue through the Dispute Resolution process outlined in Section X, they shall promptly provide written notice of any alleged or perceived deficiency to the Court.
d. The Independent Monitor may also recommend corrective action to achieve compliance, If the Independent Monitor and the Parties are unable to resolve a dispute raised in a notice of deficiency, any Party or the Independent Monitor may invoke the dispute resolution procedures set forth in Section X.
e. Annual Reports: The Independent Monitor will submit an annual report by January 31 of each calendar year to the Court outlining, at a minimum: (1) the number of APS installations conducted in the prior calendar year; (2) whether those installations were compliant with the MUTCD or any succeeding regulations,
standards, and/or guidance that amend the MUTCD; (3) whether those installations were prioritized in accordance with this remedial order; and (4) recommendations for improvement of the implementation of this remedial order, if any. These reports should describe the efforts Defendants have taken to implement the requirements of this Order and the extent to which Defendants have complied with each substantive provision of this Order. In the event of noncompliance or partial compliance, the annual report shall describe in detail the steps taken by the Independent Monitor and the Parties to assess compliance with each substantive provision of the Order, and the factual basis for the Independent Monitor's findings, as well as recommendations for ways to address such areas of partial compliance or non-compliance. The Independent Monitor may submit additional reports to the Court at their discretion. These reports shall be filed on the public ECF docket.
f. Twice-Yearly Reporting: To inform the Independent Monitor's annual reports to the Court and facilitate early dispute resolution, Defendants will report the following information to the Independent Monitor and Plaintiffs on or about June 30 and December 31 of each year beginning in fiscal year 2023 regarding progress made on all relevant aspects of the Order, including, but not limited to:
i. Progress on each of the targets outlined in this order, including:
1. The factors enumerated above in Paragraph 29(e)(1) - (4) for the prior six-month period, including documentation supporting that the installations completed in the prior six-month period comply with the MUTCD;
2. Total intersections with APS installed overall, and installed in the relevant fiscal year, and for each whether Defendants anticipate meeting the targets outlined in Sections II and III;
3. Total public requests received, the dates of those requests, and the status of installation for prior public requests outlined in Sections III andV;
4. Total intersections identified in Paragraph 6(a)-(d) without APS installed;
ii. Whether Defendants anticipate any challenges in the coming six months in complying with the order (e.g., challenges in procurement, a contractor unable to keep pace with the contract awarded, unexpected supply chain issues, a change in regulations or best practices, issues raised by the APS Advisory Committee); and.
iii. The City's efforts to pursue funding to support installation of APS, including sources of funding and any amounts pursued, whether such efforts were successful, and if successful, funding amounts received.
30. The Parties have, pursuant to the Court's direction, conferred and jointly nominate Andrew Schilling, Esq. to serve as the Independent Monitor. Consistent with Federal Rule of Civil Procedure 53 relating to the appointment of masters, and as directed by this Court's February 25, 2022 Order, on March 4, 2022, Mr. Schilling filed an affidavit affirming that there were no grounds for his disqualification. Having met with Mr. Schilling, and reviewed with him the Court's expectations as to the monitorship, the Court approves his appointment as Independent Monitor.
31. If at any time the Independent Monitor is unable to serve, the Parties shall make a good faith effort to promptly agree on a replacement. In the event the Parties cannot agree on a replacement, the Parties and the United States may each submit to the Court the names and qualifications of up to three proposed replacement Independent Monitors. The Parties and the United States shall have up to two weeks to submit comments to the Court concerning any or all of the proposed candidates, and the Court shall appoint a new Independent Monitor from the names submitted by the Parties.
32. The Independent Monitor shall have access to relevant non-privileged information and documents, including from the APS Advisory Committee, class members, and employees of Defendants, as requested and as necessary to assess compliance with this remedial order consistent with the parameters set forth in Section VIII. If the Independent Monitor is denied access to requested information, they may inform the parties, and any party may invoke the dispute resolution process set forth in Section X.
33. The Independent Monitor shall be permitted to initiate and receive ex parte communications with all Parties.
34. Independent Monitor may engage any experts, consultants, accountants, or other additional qualified staff as is reasonably necessary to fulfill their duties and evaluate compliance with this Order without duplication of effort.
35. The Independent Monitor shall remain in place for a term of five years. Within a year of the end of said five year term, any party may move to end or extend the monitorship. Any party and the United States will be permitted to respond to such petitions. Upon receipt of the briefing, the Court will determine whether to end the monitorship, renew the existing monitor's service, or conduct another round of independent monitor selection, in the same manner as described above.
36. At the beginning of fiscal year 2023 (July 1, 2022) and at the beginning of each calendar year thereafter, the Independent Monitor must submit to the Court a detailed budgetary estimate of his anticipated fees and expenses for the Court's review and approval. Such fees, costs, and expenses shall be sufficient to allow the Independent Monitor to fulfill their duties pursuant to this Order in a reasonable and efficient manner. Defendants may submit an opposition to said budgetary estimate within two weeks of the Independent Monitor's submission if they believe that any aspect is unreasonable. Plaintiffs and the Independent Monitor may respond to any opposition within one week.
37. All reasonable fees and expenses incurred by the Independent Monitor, including any reasonable expenses incurred due to engaging any experts, consultants, accountants, or other additional qualified staff as is reasonably necessary to fulfill their duties and evaluate compliance with this Order, shall be paid by Defendants as authorized through periodic fee applications to the Court in accordance with the Independent Monitor's approved budget. Once the Independent Monitor is appointed, the Independent Monitor and the Defendants will draft an Order setting forth the terms and details of payment for fees and expenses and submit same to the Court for approval.
38. Defendants acknowledge that Plaintiffs may be entitled to reasonable fees and expenses incurred by Plaintiffs in the monitoring and enforcement of this Order. The Parties agree to negotiate the details of such potential fees separately outside of this Order, and if such negotiations are unsuccessful, Plaintiffs may move for such fees with the Court. Nothing in this Section shall be construed as in any way limiting Plaintiffs' right to seek such fees and expenses or Defendants' right to oppose such fees and expenses.
IX. Modification of this Order
39. If conditions outside Defendants' control render it factually impossible to meet an obligation in this remedial order, Defendants will be excused from performance for as long as those conditions remain in effect, provided that Defendants shall comply with the remedial order to the maximum extent possible. If Defendants believe that it will be impossible to meet an obligation in this remedial order due to causes beyond Defendants' control, they shall provide notice to Plaintiffs and the Independent Monitor substantiating that position. Any dispute over Defendants' position will be resolved through the dispute resolution procedures set forth in Section X.
40. Any Party may file a motion for modification of any provision of this remedial order upon a showing of a significant change in facts that renders the modification sought equitable, and, in the case of modifications that effect the substantive relief granted under this remedial order, a showing that the modification will result in relief that is as effective as the relief provided under this remedial order.
X. Dispute Resolution
41. If Plaintiffs believe that Defendants have not complied in any material respect with the terms of this Order, they shall provide written notice to the Independent Monitor and Defendants' Counsel outlining the way they believe Defendants are not in compliance. Similarly, if the Independent Monitor believes that Defendants have not complied in any material respect with the terms of this Order, he shall provide written notice to both Parties' counsel outlining the way he believes Defendants are not in compliance. Following notice of potential non-compliance, the Parties and the Independent Monitor shall meet and confer in good faith to resolve such alleged noncompliance. If the meet and confer does not lead to a resolution of the dispute, then Defendants will have an opportunity to provide a written response within twenty business days. Plaintiffs, Defendants, and the Independent Monitor will confer in good faith for a period of at least twenty days thereafter to resolve the dispute.
42. Similarly, if Defendants believe that it will be impossible to meet an obligation in this remedial order due to causes beyond Defendants' control, they shall provide written notice to the Independent Monitor and Plaintiffs' counsel, outlining the way they believe meeting an obligation is impossible. Following such notice of impossibility, the Parties and the Independent Monitor shall meet and confer in good faith to resolve such alleged noncompliance. If the meet and confer does not lead to a resolution of the dispute, then Plaintiffs will have an opportunity to provide a written response within twenty business days. Plaintiffs, Defendants, and the Independent Monitor will confer in good faith for a period of at least twenty days thereafter to resolve the dispute.
43. If the Parties are unable to resolve their dispute, the Independent Monitor shall report the alleged non-compliance or impossibility of performance to the Court with a recommended finding or resolution and any Party may make a motion to the district court to enforce or seek relief from a provision of this Order.
44. Counsel for all sides shall keep the Independent Monitor apprised of relevant contact persons and information over the duration of the Order.
SO ORDERED.
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EXHIBIT B
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EXHIBIT D
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