Eastern Paralyzed Veterans Ass'n v. Metropolitan Transportation Authority

Kupferman and Yesawich, JJ.,

dissent in a memorandum by Kupferman, J., as follows: Plaintiffs-respondents allege that the failure of defendants-appellants after September 1, 1974 to make public accommodations more accessible to physically disabled persons constituted unlawful discriminatory practices in violation of subdivision 9 of section 292 and section 296 (subd 2, par [a]) of the Executive Law. Those sections, when read together, prohibit the withholding or denial to disabled persons of any of the accommodations, advantages, facilities or privileges of, inter alia, all public conveyances as well as the stations and terminals thereof. In the memorandum prepared upon approval of this legislation, then Governor Malcolm Wilson stated that he recognized that “unavoidable architectural barriers in * * * places of public accommodation * * * may be such that their presence may, in a sense, result in ‘withholding from’ a disabled person the advantages of a particular activity under the Human Rights Law”, but he went on to emphasize that the legislative intent was “to allow a disabled individual to enjoy that which he is otherwise capable of enjoying, notwithstanding the fact that some architectural barriers exist which make enjoyment impossible.” He then made special reference to new provisions of law to eliminate architectural barriers in new and rehabilitated places of public accommodation. (NY Legis Ann, 1974, p 415.) Plaintiffs specifically contend that, since the effective date of this law, September 1, 1974, until the *518 filing of the complaint, newly contracted for buses and newly built and rebuilt stations and terminals were not designed nor built to be barrier free, and that, in essence, defendants’ actions during this period resulted in the erection' of new barriers for the handicapped rather than amelioration thereof. They do not seek special accommodation of their needs or renovation of existing structures, but fixture access where it could be provided after the effective date of the legislation so that they may enjoy “that which [they are] otherwise capable of enjoying.” The majority disavows Special Term’s construction of the statute, as requiring “special efforts” in making facilities accessible to the disabled, and instead declares that because the act does not clearly and explicitly mandate affirmative' action, a court should not attempt to fill the vacuum. This approach neglects to take into account the direction of section 300 of the Executive Law to construe the Human Rights Law “liberally for the accomplishment of the purposes thereof.” The implication is clear from the totality of the language of the legislation and comments thereon, that although existing barriers to access presented a problem, the new legislation would result in the gradual elimination of those barriers with new construction, future purchases, and renovation in the normal course. Although Special Term’s use of the term “special efforts” may have been unfortunate in that it could connote some more required effort than plaintiffs seek, it seems clear to me that what has been mandated is that at least some affirmative action be taken by those defendants on projects begun after September 1, 1974. They could no longer be oblivious to the special needs of those represented by the plaintiffs, and future planning would require attention to the needs of the handicapped. As Special Term aptly stated, “defendants have not demonstrated on this motion, at least, that any significant effort was being made” during the period at issue (103 Misc 2d 933, 936; emphasis added). A cause of action is stated and, therefore, I would affirm the denial of defendants’ motion to dismiss that part of the complaint alleging discriminatory practices in violation of subdivision 9 of section 292 and section 296 (subd 2, par [a]) of the Executive Law. [103 Misc 2d 933.]