Opinion
00-CV-0132
July 24, 2002
SARAH BETSY FULLER, ESQ., PAUL F. KELLY, ESQ, LAURA L. ROVNER, ESQ., PUBLIC INTEREST LAW FIRM, Syracuse, NY, Attorneys for Plaintiff Syracuse University College of Law Office of Clinical Legal Education.
VINCENT FITZGERALD, Defendant pro se, Syracuse, NY.
GUY and NANCY EASTER, Defendants pro se, Skaneateles, NY.
KAREN E. RICHARDS, ESQ., OFFICE OF THE CORPORATION, CITY OF SYRACUSE Attorney for Defendant City of Syracuse, Syracuse, NY.
M. CHRISTINE FOTOPULOS, ESQ., UNITED STATES OF AMERICA, Department of Justice, As Amicus Curiae Civil Rights Division, Washington, D.C.
MEMORANDUM DECISION AND ORDER
This case was first brought before this court by defendant City of Syracuse, New York ("City") in an alternative motion to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6), or for summary judgment under Fed.R.Civ.P. 56. Oral arguments were heard by the court on May 18, 2000. Because matters outside the pleadings had been presented and would not be excluded by the court, the City's motion was considered by the court as one for summary judgment and disposed of as set forth in Rule 56. In an order dated June 23, 2000, the court found that it was evident that a genuine issue of material fact was controverted by the parties regarding the exact requirements that must be met before the City would issue a building and/or encroachment permit for statutory mandated construction of disabled access to establishments by this legislation. The court noted that in this situation, where major factual contentions were in dispute and the parties had not yet proceeded with discovery, summary judgment was inappropriate. The City's motion was denied without prejudice to a renewed motion for summary judgment upon the completion of discovery.
Additionally, the motion by the United States Department of Justice's Disability Rights Section, Civil Rights Division, for leave to participate amicus curiae was granted. It is undisputed that plaintiff Michael Kennedy is covered by the terms of the Americans with Disabilities Act. ("ADA" or "Title II") and § 504 Rehabilitation Act ("§ 504"). His cerebral palsy condition necessitates the use of a wheelchair. A single concrete step at the entry way to the then Baskins-Robins ice cream store at 737 Crouse Avenue, Syracuse, NY, denied him access to the premises.
Plaintiff instituted this action against Guy and Nancy Easter, the property owners; Baskins-Robbins U.S.A., the franchiser and/or tenant/lessee of the property, which is a "place of public accommodation" within the meaning of the applicable statutes; Vincent Fitzgerald, the franchisee; and the City of Syracuse, ("the City") alleging violations of Title II and III of the ADA, Section 504, and various state laws. Defendant Baskins-Robbins U.S.A. was dismissed with prejudice from this case by the parties to the action by stipulation dated August 8, 2001. Plaintiff maintains that in order to make the ice cream store accessible to himself and other wheelchair users, a ramp must be constructed which will encroach upon property owned by the City. All building plans affecting City property must be approved by various City departments. Guy and Nancy Easter are considered tax delinquent because they owe back real property taxes to the City, and the City has a policy of not issuing building permits to persons who are real property tax delinquent.
The complaint alleges that the City is included in the pertinent federal and state statutes defining the terms "public entity," "subdivision of the state" and as participating in a "program or activity," and it has discriminated against him and other persons with disabilities by refusing to modify its zoning policy in order to grant the building permit that would allow the construction of the wheelchair ramp.
Discovery has now been completed, and defendant City has again made motion in the alternative seeking either dismissal of the complaint underRule 12(b)(6) or the granting of summary judgment pursuant to Rule 56 As before, because many matters outside of the pleading have been presented to and will not be excluded by the court, the City's motion will be treated as one for summary judgment and disposed of as provided by Rule 56. Fed.R.Civ. Plaintiff has entered opposition to the City's motion.
Rule 56 of the Federal Rules of Civil Procedure permits summary judgment where the evidence demonstrates that "there is no genuine issue of any material fact and the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 242, 247, 106 S.Ct. 2505, 2709, 91 L.Ed.2d 202 (1986). Summary judgment is properly regarded as an integral part of the Federal Rules as a whole, which is designed to "secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catreet, 477 U.S. 317, 327, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986) (quoting Federal Rule of Civil Procedure 1). In determining whether there is a genuine issue of material fact, a court must resolve all ambiguities and draw inferences against the moving party. United States v. Diebold, 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam). An issue of credibility is insufficient to preclude the granting of a motion for summary judgment. Nor will factual disputes that are irrelevant to the disposition of the suit under governing law preclude any entry of summary judgment. Anderson, 477 U.S. 247, 106 S.Ct. at 2509.
The burden shifting approach established in McDonnell Douglas Corp. v. Green, 411 S.Ct. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), applies to intentional discrimination claims brought under the ADA, Heyman v. Queens Village Committee for Mental Health, 198 F.3d 68, 72 (2d Cir. 1999), and the Rehabilitation Act, D'Amico v. City of New York, 132 F.3d 145, 150 (2d Cir. 1998). Under McDonnell Douglas, the plaintiff must first establish a prima facie case of discrimination. To do so, ADA plaintiffs must present evidence that the "animus against the protected group was a significant factor in the position taken by the municipal decision makers themselves or by those to whom the decision-makers were knowingly responsive." LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 425 (2d Cir. 1995). To establish a prima facie case of discrimination under the Rehabilitation act, by contrast, the plaintiff must show that the defendants denied the permit "solely" because of the disability. Flight v. Gloeckler, 68 F.3d 61, 64 (2d Cir. 1995). If the plaintiff establishes a prima facie case, then the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason, for their decision. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 141, 120 S.Ct. 2097, 2105, 147 L.Ed.2d 105 (2000). If the defendants satisfy that requirement, "the McDonnell Douglas framework . . . disappears[s] and the sole remaining issue [is] discrimination vel non." Reeves, 530 U.S. at 142-43, 120 S.Ct. at 2105. The plaintiffs must then prove that the defendants intentionally discriminated against them on a prohibited ground. Id. At 143. Where however, the plaintiff makes "a substantial showing" that the defendants' proffered explanation is false, "it is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the defendant's explanation." Id. at 146-47.
The City asserts that defendant Easters' encroachment proposals were not denied or withdrawn initially because it has a policy of doing so if the property owner is tax delinquent, but for legitimate safety concerns and/or design problems. In support of this contention, the City has submitted affidavits from various City officials and departmental employees that deny a tax delinquent policy exists, and points out that it granted encroachment requests to two owners of tax delinquent property when they submitted acceptable plans for a handicap ramp to the City. It appears that the City subsequently claims that while tax delinquency may have been included in its decision making process on encroachments, tax delinquency was only one of several equal factors considered in making its determinations.
Plaintiff claims that while the City may make these assertions, documents contained in the record strongly indicate that tax delinquency played a very significant part in the City's consideration of encroachment requests, and this is demonstrated by the following events. In the City's first alternative motion for summary judgment one of its documents stated that "[p]ermitting the Easters to encroach upon the City's right-of-way in violation of this alleged policy would allow a property owner to circumvent the City's effort to protect the public fisc by collecting back taxes." (Defendant's motion is hereby denied. Memorandum of Law in support of first alternative motion at 15). In support of its first motion the City presented the affidavit of City Councilor Mary McCarty that stated "[t]he Common Council's decision to withdraw the proposals were made because the property was tax delinquent." (Pltf.'s Exhibit 28). This statement by Councilor McCarty is in direct conflict with the City's Statement of Material Facts in the instant motion which states at Paragraph 18, that the common Councilors were unaware of the Easters' tax status when the Council withdrew the Easters' encroachment proposals. The affidavits of Councilors DeRegis and Mahaney submitted by the City in the current case motion state that they were unaware of the Easters' tax status and it did not effect their decisions because it was not a factor to be considered. (DeRegis Affd. ¶ 4, Mahaney Affd. ¶ 4). Letter dated October 25, 1999, from William H. Pease, Esq., Assistant U.S. Attorney to Assistant Corporation Counsel John C. Black, Jr., regarding obtaining a variance for the Easter property, and stating in part "it is my understanding based on conversations with you, that the only obstacle in granting a variance is that the owners of the premises have failed to pay their real property taxes on the premises. This is not a valid basis under Section 506 for withholding the needed variance." (Pltf.Ex 17) John C. Black, Jr., Esq., Assistant Corporation Counsel for the City of Syracuse, stated in at least two conversations with William H. Pease, Esq. Assistant U.S. Attorney, "that a variance could be granted for a physically challenged access ramp to the subject premises if the owner would resolve the issue of part-due property taxes in favor of the city." (Pltf. Ex. 5, Declaration of William H. Pease, Esq., July 30, 2001, p. 2).
An affidavit of then "student attorney" Kelly Wind declares that she attended meeting of the Syracuse Common Council where the Council members discussed the tax status of the Easter property when considering the encroachment proposal. When she later asked Sharon Davidson, an employee of the Common Council, what was the status of the Easter encroachment proposal, she was advised that it was "held" until his outstanding tax debts were made current. In reply to a subsequent inquiry she made to Assistant Corporation Counsel John Black, Esq. concerning the delay in the construction of the handicap ramp, Mr. Black replied that it was Council policy not to grant permits to tax delinquent persons. (Pltf Ex.16). "Discriminatory intent may be inferred from the totality of the circumstances, including . . . the historical background of the decision . . . the specific sequence of events leading up to the challenged decision . . .; [and] contemporary statements by members of the decision making body." LeBlanc-Sternberg, 67 F.3d at 425.
After examining the materials submitted by the parties hereto, and hearing oral arguments in support of their respective positions, the court finds that a genuine issue of material fact still exists concerning the precise requisites that must be fulfilled prior to the City's acceptance of an encroachment for statutory mandated construction of disabled persons access to commercial establishments by this legislation.
Accordingly, defendant City of Syracuse's motion for summary judgment is DENIED.
IT IS SO ORDERED