Opinion
No. 98-CV-4988
September 10, 2002
ORDER
Plaintiff Shira Kasten, by her guardians Naomi Kasten and Avi Kasten, and Naomi Kasten, bring this suit pro se against defendant the Port Authority of New York and New Jersey ("Port Authority") for its alleged failure to make the terminals at Newark International Airport accessible to disabled people. Plaintiffs seek an order "requiring the P[ort] A[uthority] to make their air terminals accessible to disabled persons" and compensatory damages in the amount of $450,000. The Port Authority now moves for summary judgment.
To avoid confusion, I will refer to plaintiffs Naomi Kasten and Avi Kasten as Mrs. Kasten and Mr. Kasten, respectively; to their children, including Shira Kasten, by their first names; and to all the plaintiffs collectively as "plaintiffs" or "the Kastens".
FACTS
Unless otherwise indicated, the following facts are undisputed.
On an unspecified date in July 1997, Mr. and Mrs. Kasten drove to Newark International Airport in New Jersey with four of their children — Shira, age eleven, Leah, age six, Rebecca, age three, and Elana, age twenty — to drop Elana off for a flight abroad. Shira, whom her mother describes as microcephalic and quadriplegic, with visual and cognitive impairments, was in a stroller, as was Rebecca. When the Kastens reached the airport, they parked in a lot and walked over to Terminal B. Terminal B has four levels: the parking level at the bottom, then the arrivals level, then the mezzanine, and the departure level at the top. At the terminal, the Kastens took an elevator from the parking level to the departure level and proceeded to the boarding area for Elana's plane. After Elana boarded her plane, the remaining family members proceeded back to the elevator they had previously taken from the parking level and entered it, standing in the front part of the elevator car.
As the elevator proceeded down toward the parking level, it stopped at the arrivals level. The Kastens exited the elevator in order to let other passengers off. When those passengers had finished exiting, other people got on the elevator. The Kastens tried to re-enter the elevator too, but the elevator doors closed before they could get back on. The area around the elevator on the arrivals level was crowded with passengers, many of whom were trying to get on the elevator. The Kastens tried for some time, without success, to get back on the elevator, but eventually decided to seek an alternate route.
Mr. and Mrs. Kasten each testified at deposition to having seen a second elevator in the vicinity, but each observed that it was out of service and therefore unavailable for use. Renee Spann, Manager of the Newark Airport International Facility at Terminal B, testified at her deposition that, in the summer of 1997, only one elevator stopped at all four levels of the terminal, but that a second elevator serviced the two intermediate levels, the mezzanine and arrivals floors. It is not clear whether the out-of-service elevator the Kastens observed and the two-level elevator Spann referenced were one and the same.
In any case, the Kastens found no other working elevator in Terminal B that went to the parking level, so they decided to use the escalator instead. When the Kastens tried to put Shira's stroller on the escalator, however, a uniformed man informed them that they were not allowed to do so. The Kastens exited the arrivals level to the sidewalk outside, still seeking a way to get down to the parking level. A police officer whom they asked for assistance told the Kastens that they were permitted to use the roadway running past the arrivals level to proceed down to the parking level. The roadway was busy with vehicles, but the Kastens decided to use it and were able to return to the parking level via the roadway.
The Kastens filed this suit on July 31, 1998. Although plaintiffs never specify the legal bases for their claim of disability discrimination, defendant has assumed that they intend to invoke the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq., and Section 504 of the Rehabilitation Act of 1973 ("RA"), 29 U.S.C. § 794, and I will construe the complaint as raising claims under these two statutes.
DISCUSSION
Summary Judgment Standard
Motions for summary judgment are granted if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. See Lipton v. Nature Co., 71 F.3d 464, 469 (2d Cir. 1995). The moving party must demonstrate the absence of any material factual issue genuinely in dispute. See Id. The court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Howley v. Town of Stratford, 217 F.3d 141, 150-51 (2d Cir. 2000). However, the non-moving party may not "rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986), cert. denied, 480 U.S. 932 (1987). The party must produce specific facts sufficient to establish that there is a genuine factual issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
ADA and Section 504 Claims
Title II of the ADA prohibits discrimination against the disabled by public entities. It provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. The term "public entity" is defined as including "any department, agency, special purpose district, or other instrumentality of a State or States or local government," 42 U.S.C. § 12131, and it is undisputed that the Port Authority, as an instrumentality of New York and New Jersey, is a public entity subject to Title II. Cf. Hess v. Port Authority Trans-Hudson Corporation, 513 U.S. 30 (1994) (describing history and status of Port Authority).
Similarly, Section 504 provides, in pertinent part, that "[n]o otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794. The Port Authority does not contest that it is subject to Section 504 as a program receiving federal funds, nor does it dispute that Shira is a "qualified individual with a disability" within the meaning of both the ADA and Section 504.
Title II of the ADA authorizes the Attorney General to promulgate regulations to implement Title II, subtitle A, §§ 12131-12134. See 42 U.S.C. § 12134; Sutton v. United Air Lines, Inc., 527 U.S. 471, 478 (1999). These regulations "must be given legislative and hence controlling weight unless they are arbitrary, capricious, or clearly contrary to the statute." Civic Association of the Deaf of New York City, Inc. v. Giuliani, 915 F. Supp. 622, 635 (S.D.N.Y. 1996) (quoting United States v. Morton, 467 U.S. 822, 834 (1984)). Cf. Sutton, 527 U.S. at 479-80 (noting, in contrast, that "no agency . . . has been given authority to issue regulations implementing the generally applicable provisions of the ADA, see §§ 12101-12102, [which include the definition of `disability' and] which fall outside Titles I-V," and declining to address amount of deference due to EEOC regulations that nonetheless discuss the latter provisions). Different regulations govern depending on whether the facilities in question are currently in existence or being altered or newly constructed. New construction is not at issue here, but it is unclear whether Terminal B was undergoing alterations in the Summer of 1997 within the meaning of the regulations. Spann testified that some sort of "renovation of the facility" was going on in the summer of 1997, but could not recall the nature of the work being done. Spann Dep. at 28-29. However, plaintiffs frame their complaint as a challenge to the accessibility of the Terminal B facilities as they existed in July 1997; they are not claiming that the Port Authority failed adequately to take accessibility issues into account in undertaking renovations or new construction. And, the Port Authority makes no argument that the regulations for alterations rather than existing facilities should apply. Therefore, I conclude that the relevant regulation in this case is that applying to existing facilities, 28 C.F.R. § 35.150, not 28 C.F.R. § 35.151, which applies only to new construction and alterations. Section 35.150 provides that public entities such as the Port Authority "shall operate each service, program, or activity so that the service, program, or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities."
As for the Rehabilitation Act regulations, the rule applicable to airport facilities such as Terminal B provides that
Airport operators shall ensure that the terminal facilities and services subject to this section shall be readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs. Airport operators shall be deemed to comply with this section 504 obligation if they meet requirements applying to state and local government programs an(1 facilities under Department of Justice (DOJ) regulations implementing Title II of the Americans with Disabilities Act (ADA).49 C.F.R. § 27.71. Compliance with the applicable ADA regulations thus constitutes compliance with the applicable Section 504 regulations. The key issue under both laws, therefore, is whether Terminal B in July 1997, when "viewed in its entirety," was "readily accessible to and usable by individuals with disabilities."
Plaintiffs have failed to raise a genuine issue of fact as to this question. It is undisputed that plaintiffs had no difficulty entering Terminal B, by using the elevator to proceed from the parking level to the departure level. It is undisputed that, after dropping Elana off at her flight, plaintiffs had no difficulty re-entering the elevator at the departure level to proceed back to the parking level. It is undisputed that the only difficulty plaintiffs encountered occurred when the elevator stopped at the arrivals level en route to the parking level. This difficulty occurred because plaintiffs voluntarily got off the elevator as a courtesy to passengers behind them who wished to exit. Plaintiffs concede that, although they intended to get back on the elevator, they did not verbally communicate this intention to anyone else, and stood "four, five, [or] six feet" away from the elevator while waiting to get back on. A. Kasten Dep. at 23, 25. No reasonable jury could conclude, on the facts plaintiffs rely on, that Terminal B failed to be readily accessible to the disabled in July 1997.
Even the regulations for new construction suggest that the one elevator at Terminal B was sufficient. Section 35.151 provides that public entities are deemed in compliance with the regulation if new or altered facilities meet the standards of either the Uniform Federal Accessibility Standards, 41 C.F.R. Part 101-19.6, Appendix A, or the ADA Accessibility Guidelines for Buildings and Facilities ("ADAAG"), 28 C.F.R. Part 36, Appendix A. The relevant ADAAG provision, Section 4.3.2, provides, in pertinent part,
(1) At least one accessible route within the boundary of the site shall be provided from public transportation stops, accessible parking, and accessible passenger loading zones, and public street or sidewalks to the accessible building entrance they serve. The accessible route shall, to the maximum extent feasible, coincide with the route for the general public.
(2) At least one accessible route shall connect accessible buildings, facilities, elements, and spaces that are on the same site.
(3) At least one accessible route shall connect accessible building or facility entrances with all accessible spaces and elements and with all accessible dwelling units within the building or facility.
(Emphasis in original.) Because there was an elevator in Terminal B in July 1997 that serviced all four levels of the terminal, there was "[a]t least one accessible route," suggesting that the terminal was in compliance even with the requirements for new or renovated facilities. Although the phrase "at least one" indicates that the existence of a single accessible route may not suffice in every situation, no reasonable jury could find that it was insufficient in this case.
Because plaintiffs have failed to call genuinely into question the accessibility of Terminal B, defendant is entitled to summary judgment. Furthermore, Mrs. Kasten's ADA claim in her individual capacity must be dismissed because she does not allege that she is disabled. See Puckett v. Northwest Airlines, Inc., 131 F. Supp.2d 379, 383 (E.D.N.Y. 2001).
CONCLUSION
For the foregoing reasons, defendant's motion for summary judgment is granted. The Clerk of Court is directed to enter judgment for defendant.
SO ORDERED.