A lawsuit filed against the city and the Metropolitan Transportation Authority by advocates for the disabled in 2017 will proceed after a panel from the Appellate Divisions of state Supreme Court on June 4.

Plaintiffs in the class action lawsuit, including The Center for Independence of the Disabled, New York, are suing to increase the number of accessible subway stations in the city.

The MTA right now has 120 accessible stations out of 472.

The four-judge panel last week upheld a June 2019 ruling by Justice Shlomo Hagler in Manhattan that rejected motions from the city and the MTA to dismiss the suit.

“Finally, it has been made clear to the MTA and the City of New York that they cannot continue to ignore the hundreds of thousands of people shut out of the subway system because they cannot use stairs,” said Michelle Caiola, Disability Rights Advocate’s managing director of Litigation in a press release. “Instead of wasting more time and money fighting lawsuits brought by people with disabilities, the MTA needs to focus on elevator installation at the large number of currently inaccessible stations.”

The MTA, citing ongoing litigation, declined to comment.

But since the suit was filed the state has approved the MTA’s Fast Forward plan which, among their capital improvements, will make 50 stations accessible in the next five fiscal years and more than 100 others thereafter, with the long-term goal of requiring riders to go no more than two stops before reaching an accessible station.

A lower court had rejected the claims of the MTA and the city that the complaint should be dismissed because of the statute of limitations — some subway stations were first built in 1904 — and a further claim by the city that “it is not a proper party because it has no control over the subway system.”

In her 22-page opinion, Justice Judith Gische upheld the previous ruling.

“Defendants argue that the statute of limitations accrued when the subway stations were originally built at the turn of the last century,” Gische wrote. “Under the [New York City Human Rights Laws], however, it has long been recognized that continuing acts of discrimination within the statutory period will toll the running of the statute of limitations until such time as the discrimination ends.”

“... The lack of access to the subway system, a place of public accommodation, continues every time a person seeks to use the subway system, but is prevented from doing so based upon their physical disability.”

The court also ruled that the city’s claim of not having control over the subway system was a case of too little, too late.

“While conceding that it is the owner of the subway system, it argues that it bears no responsibility for the claimed violations and has no authority to remedy them,” Gische continued on page 20 of her decision.

“CNY relies on the fact that it was required to and actually did lease the subway system to its codefendants. The motion court denied CNY’s motion, without prejudice to renewal, following discovery. The motion to dismiss was properly denied because CNY waived that argument because it was raised for the first time in its reply brief ...”

“We are delighted with this decision,” said Jean Ryan of Disabled in Action New York in the press release. “We want all subway stations to be accessible so we can reliably use the subways which are the fastest way to get around our city.”

Additional plaintiffs in the case include Bronx Independent Living Services, Brooklyn Center for Independence of the Disabled, Harlem Independent Living Center, New York Statewide Senior Action Council, Inc., and three individuals who use wheelchairs.

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