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Case 1:18-cv-05792-PAE Document 126 Filed 10/20/20 Page 1 of 67
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`AMERICAN COUNCIL OF THE BLIND OF
`NEW YORK, INC., MICHAEL GOLFO, and
`CHRISTINA CURRY, on behalf of themselves
`and all others similarly situated,
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`
`Plaintiffs,
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`
`
`v.
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`CITY OF NEW YORK, NEW YORK CITY
`DEPARTMENT OF TRANSPORTATION,
`BILL DE BLASIO, in his official capacity as
`Mayor of the City of New York, and POLLY
`TROTTENBERG, in her official capacity as
`Commissioner of the New York City Department
`of Transportation,
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`
`Defendants.
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`
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`
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`18 Civ. 5792 (PAE)
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`OPINION &
`ORDER
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`PAUL A. ENGELMAYER, District Judge:
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`This case involves a challenge under the Americans with Disabilities Act of 1990
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`(“ADA”) and related statutes to the accessibility of New York City’s signalized crosswalks
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`to blind and low-vision pedestrians.
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`On behalf of a certified class of blind and low-vision New York City pedestrians,
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`plaintiffs—the American Council of the Blind of New York, Inc. (“ACBNY”), Michael Golfo,
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`and Christina Curry—have sued the City of New York, the New York City Department of
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`Transportation (“DOT”), Mayor Bill de Blasio, and DOT Commissioner Polly Trottenberg
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`(collectively, the “City” or “defendants”). Plaintiffs allege that the City has long failed to
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`provide non-visual crossing information at the vast majority of its signalized intersections, i.e.,
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`those which provide visual crossing information to sighted pedestrians. Plaintiffs allege that the
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`City’s failure to accommodate blind and low-vision pedestrians violates Title II of the ADA,
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`Case 1:18-cv-05792-PAE Document 126 Filed 10/20/20 Page 2 of 67
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`42 U.S.C. § 12132; section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a)
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`(“Rehabilitation Act”); and the New York City Human Rights Law, N.Y.C. Admin. Code
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`§ 8-107(4)(a) (“NYCHRL”).
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`With discovery complete, plaintiffs now move for summary judgment on all claims, but
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`solely as to liability, without yet seeking a judicial remedy. Plaintiffs principally argue that
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`(1) the absence of non-visual crossing information at the vast majority of the City’s signalized
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`intersections denies blind and low-vision pedestrians meaningful access to those intersections
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`and the pedestrian grid, in violation of the ADA, the Rehabilitation Act, and the NYCHRL; and
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`(2) the City’s failure to add non-visual crossing information on occasions when it has done
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`construction at, or upgraded aspects of, the same intersections is also unlawful.
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`For the following reasons, the Court grants plaintiffs’ summary judgment motion in
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`principal part. Most significantly, the Court finds, on the undisputed facts, that the near-total
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`absence at the City’s signalized intersections of crossing information accessible to blind and low-
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`vision pedestrians denies such persons meaningful access to these intersections, in violation of
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`all three statutes cited above. The Court also grants plaintiffs’ motion as to liability on their
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`claim that the City’s failure to add non-visual street-crossing information at particular
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`intersections at which it installed new traffic signals after June 27, 2015, violates the ADA and
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`Rehabilitation Act. The Court otherwise denies plaintiffs’ motion for summary judgment. The
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`case will now proceed promptly forward on two tracks: (1) to determine the remedy for the
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`violations that have been established; and (2) to resolve plaintiffs’ open claims.
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`Case 1:18-cv-05792-PAE Document 126 Filed 10/20/20 Page 3 of 67
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`I.
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`Background
`A.
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`Factual Background1
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`According to the U.S. Census Bureau’s 2017 American Community Survey 1-Year
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`Estimates, among New York City’s non-institutionalized population, 205,212 persons are blind
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`or have other vision difficulties. Atkinson Decl., Ex. 1 (“Census Community Survey”) at 2.
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`That amounts to approximately 2.4% of the City’s population. See id.
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`1.
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`The Parties
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`Plaintiff ACBNY is a New York non-profit corporation. JSF ¶ 1. Its purpose is to
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`“support and promote the educational, vocational and social advancement of people with vision
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`disabilities.” Id. Its members include individuals with vision disabilities within the meaning of
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`the ADA, Rehabilitation Act, and NYCHRL, including approximately 45 members in its Greater
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`New York Chapter, which includes New York City. Id. ¶¶ 2, 20.
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`1 The Court draws its account of the underlying facts from the parties’ respective submissions on
`the motion for summary judgment, including: the parties’ joint statement of undisputed facts,
`Dkt. 91 (“JSF”); plaintiffs’ Local Rule 56.1 statement, Dkt. 93 (“Pl. 56.1”); defendants’ Local
`Rule 56.1 counter-statement, Dkt. 105 (“Def. 56.1”); the declaration of Lori Scharff, Dkt. 95
`(“Scharff Decl.”); the declaration of Christina Curry, Dkt. 96 (“Curry Decl.”); the declaration of
`Michael Golfo, Dkt. 97 (“Golfo Decl.”); the declaration of Torie Atkinson, Esq., Dkt. 98
`(“Atkinson Decl.”), and supporting exhibits; the corrected declaration of Joshua Benson,
`Dkt. 107 (“Benson Decl.”), and supporting exhibits; the corrected declaration of James
`Celentano, Dkt. 108 (“Celentano Decl.”), and supporting exhibits; and the declaration of Pamela
`A. Koplik, Esq., Dkt. 102 (“Koplik Decl.”), and supporting exhibits.
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`Citations to a party’s 56.1 statement incorporate the evidentiary materials cited therein. When
`facts stated in a party’s 56.1 statement are supported by testimonial, video, or documentary
`evidence and not denied by the other party, or denied by a party without citation to conflicting
`admissible evidence, the Court finds such facts to be true. See S.D.N.Y. Local Civil Rule 56.1(c)
`(“Each numbered paragraph in the statement of material facts set forth in the statement required
`to be served by the moving party will be deemed to be admitted for purposes of the motion
`unless specifically controverted by a correspondingly numbered paragraph in statement required
`to be served by the opposing party.”); id. Rule 56.1(d) (“Each statement by the movant or
`opponent . . . controverting any statement of material fact[] must be followed by citation to
`evidence which would be admissible, set forth as required by Fed. R. Civ. P. 56(c).”).
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`Case 1:18-cv-05792-PAE Document 126 Filed 10/20/20 Page 4 of 67
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`Plaintiff Christina Curry is deaf, legally blind, and uses a forearm crutch as a mobility
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`aid. Id. ¶ 3. As a result, she cannot see traffic in intersections unless it is “very close,” and
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`cannot rely on visual street signals to cross the street. Id. ¶ 31. Because of her visual and
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`auditory disabilities, she requires “tactile information” to use pedestrian signals. Id. She lives in
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`the Bronx and regularly walks on New York City sidewalks to commute and as a part of her job
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`as Executive Director of the Harlem Independent Living Center. Id. ¶¶ 32–34, 36. She avers that
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`during her frequent pedestrian travel throughout New York City, she risks being hit by vehicles,
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`fears for her life, is often grabbed by well-meaning pedestrians, and uses circuitous, sometimes
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`costly, alternatives to walking to avoid such incidents—all because she cannot use the visual traffic
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`signals that are available to sighted pedestrians. See id. ¶ 60; Curry Decl. ¶¶ 9–13.
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`Plaintiff Michael Golfo is a blind resident of Tarrytown, New York, who previously
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`commuted to Manhattan daily for work and now walks on New York City sidewalks about once
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`per week to visit his doctors and friends. JSF ¶¶ 63–64. As a result of his disability, he relies on
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`his hearing and guide dog to navigate the New York City streets. Id. ¶ 65. Even with these aids,
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`Golfo finds it difficult to traverse the City; he has almost been hit by cars on many occasions
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`while crossing the street. Id. ¶ 74. Like Curry, Golfo often must rely on sighted persons to help
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`him make such crossings. Id. ¶¶ 75–76. He also often relies on expensive taxis or car services to
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`navigate the City, or takes elongated routes to avoid difficult intersections. Id. ¶¶ 79–80.
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`Defendants the City of New York and the DOT are responsible for and have broad
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`authority over the City’s streets, and oversee the installation, repair, and maintenance of its
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`traffic signals, sidewalks, crosswalks, and roadways. Id. ¶ 6. Each receives federal funds,
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`including from the Federal Highway Administration (“FHWA”). Id. ¶ 5.
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`Defendant Bill de Blasio, sued in his official capacity, is Mayor of the City of New York.
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`Id. ¶ 7. Defendant Polly Trottenberg, also sued in her official capacity, is Commissioner of the
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`DOT. Id. ¶ 8.
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`2.
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`New York City’s Pedestrian Landscape
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`New York City has the highest population density of any major American city. Id. ¶ 9.
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`Walking “is a major form of transportation in the city, and access to sidewalks is an important
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`component of city life.” Id.
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`To allow pedestrians safely to navigate its sidewalks and traffic intersections, the City has
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`installed roughly 120,000 pedestrian control signals—i.e., devices informing pedestrians when to
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`cross the street and when to wait—at about 13,200 of its 45,000 intersections. Id. ¶¶ 11, 13. Of
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`those 13,200 signalized intersections, all but 443 (roughly 96.6%) communicate crossing
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`information exclusively in a visual format, id. ¶ 19, with an image of a mid-stride white stick
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`figure indicating “walk,” and an upraised orange hand indicating “don’t walk,” id. ¶ 108. These
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`visual signals are inaccessible to the blind. Id. ¶ 138.
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`3.
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`Difficulties Facing Blind Pedestrians
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`As the parties agree, any pedestrian attempting to cross a street must perform four tasks:
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`(1) locate the edge of the street and crossing point; (2) align to cross the street; (3) decide when
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`to begin crossing; and (4) maintain alignment (i.e., the correct direction) while crossing the street.
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`Pl. 56.1 ¶ 6. Those with a visual disability, however, have difficulty accomplishing each of these
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`tasks. Id. ¶¶ 8–15.
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`Typically, a blind person traversing New York City sidewalks will stop when he or she
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`encounters a curb or other detectable warning surface, and will assume that a crossing point is
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`located there. Id. ¶ 8. However, without assistance, blind pedestrians begin crossing from
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`outside the crosswalk (i.e., in a traffic lane) nearly 30% of the time. Id. ¶ 9. And once blind
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`Case 1:18-cv-05792-PAE Document 126 Filed 10/20/20 Page 6 of 67
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`pedestrians locate a crossing point, they cannot receive the visual “walk” or “don’t walk”
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`information communicated to sighted individuals by the standard pedestrian control signals
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`described above. JSF ¶ 138. Instead, they generally must rely on other cues, such as fellow
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`pedestrians’ movements or the sound of traffic parallel to the crosswalk, to ascertain when it is
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`safe to walk. Pl. 56.1 ¶¶ 13–14. But picking the correct audible cues out of many traffic lanes
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`can be difficult. Id. ¶¶ 11–12. That difficulty is often compounded, especially in the City, by
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`idiosyncratic crosswalk architecture and quiet traffic such as hybrid cars and bicycles. Id. As a
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`result, the assumption that a pedestrian has the “walk” signal when parallel traffic is moving is
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`unreliable, leading blind pedestrians to attempt to cross the street against moving traffic up to
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`half the time. Id. ¶ 14. Likewise, when following sighted pedestrians, a blind person might not
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`realize that those pedestrians were in fact jaywalking until they hear onrushing traffic. See JSF
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`¶¶ 56, 76.
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`As a result, absent any accommodations, pedestrians with visual disabilities often
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`encounter danger, inconvenience, and humiliation while attempting to use the City’s crosswalks.
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`Unable to reliably locate crosswalks or time their crossing, they risk being hit by cars, JSF
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`¶¶ 25, 58, 73–74, and becoming stranded in the middle of intersections, id. ¶ 73, and may be
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`unwillingly grabbed by strangers hoping to assist them, id. ¶¶ 26, 59, 77; see also Scharff Decl.
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`¶ 18 (“I feel that I and every other blind and deafblind pedestrian are taking our lives into our
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`hands every time we walk out into the community.”). They are often forced to take longer, less
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`convenient routes than they otherwise would to avoid troublesome intersections, JSF ¶¶ 27–28, 57,
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`may wait up to 20 minutes at a single intersection to make sure they are crossing with other
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`pedestrians, id. ¶¶ 24, 55, 75, and may forgo walking altogether in favor of more expensive, but
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`safer, transit methods, such as taxis or car services, id. ¶¶ 27, 60, 79; Golfo Decl. ¶¶ 2, 9 (“These
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`experiences are inconvenient, frustrating, often humiliating, and deny me my dignity and
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`independence.”). Alternatively, rather than undertaking such fraught excursions, they may
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`simply decline to participate in activities or visit portions of the City at all. See Golfo Decl. ¶ 8.
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`4.
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`Accessible Pedestrian Signals
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`Accessible Pedestrian Signals (“APS”) are devices that communicate “walk” and “don’t
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`walk” signals to pedestrians in a non-visual format, through audible tones, speech messages,
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`and/or vibrating surfaces. JSF ¶ 14. According to plaintiffs’ expert, Janet M. Barlow, APS
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`greatly increase blind pedestrians’ ability to safely cross intersections. Pl. 56.1 ¶¶ 14, 17.
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`Where installed in New York City, APS function as follows. At an intersection with
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`APS, devices on each street corner emit a soft “locator tone” every second, which allows blind
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`and low-vision pedestrians to locate them when they approach the intersection. JSF ¶ 16. Each
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`device also has a pushbutton with a raised arrow pointing at the crossing with which it is
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`associated. Id. ¶ 15. Because each APS device points to a specific crosswalk from each side of
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`the street, a standard four-cornered intersection equipped with APS typically requires two
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`devices per curb, and eight per intersection. See id.
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`When an APS button is pressed, the device responds with an audible speech message. Id.
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`¶ 17. If the visual “walk” signal is not on for the crosswalk associated with that APS device, the
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`device audibly says “wait.” Id. If, on the other hand, pedestrians do have a “walk” signal for the
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`relevant crosswalk, then the APS device either says “walk sign is on” or emits a rapid ticking
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`sound. Id. ¶ 18. The pushbutton itself also vibrates, to alert pedestrians who are both deaf and
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`blind that it is safe to walk. Id. APS thus inform blind individuals, solely through audio and
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`tactile cues, both where and when to cross the street safely.
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`5.
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`New York City’s APS Program
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`The City installed its first APS device in 1957, but as of 2003 had only added about a
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`dozen throughout the City. JSF ¶¶ 87–88. Around 2004, the DOT established an informal APS
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`Program, pursuant to which it installed APS upon request, but only near organizations or
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`programs that served large numbers of blind and low-vision persons. Id. ¶¶ 90, 93, 111.
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`Each year between 2004 and 2011, the DOT received more requests for APS than it
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`installed. Id. ¶ 109. It chose among these requests without any formal ranking system. Id.
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`Beginning in 2011, however, the DOT developed a Prioritization Tool for ranking these
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`requests. Id. ¶ 113. The Prioritization Tool is a “worksheet completed by traffic engineers,”
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`which evaluates the characteristics of an intersection, including its “geometry, crossing width,
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`the presence of bike lanes or signal timing changes, traffic volume, and proximity to high-
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`pedestrian areas,” and determines that intersection’s priority for the installation of APS. Id.2
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`Each characteristic is assigned a numeric score, with features that make a crosswalk more
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`challenging for blind pedestrians producing a higher score. Id. ¶ 117. Cost is not a factor in this
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`ranking process. Id. ¶ 125. Once the DOT evaluates an intersection, it generally enters its
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`ranking into the City’s database with other ranked locations, to determine how it compares with
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`other intersections. Id. ¶ 118. Because newly ranked intersections may be ranked as higher
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`priorities than ones already on the list, a ranked intersection may remain on the ranking list for
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`years. Id. ¶¶ 127–128. The DOT does not appear to maintain a policy for deciding which
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`intersections to rank at any given time, but today it evaluates and ranks at least all intersections
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`for which it receives a new APS request. Pl. 56.1 ¶ 65; JSF ¶ 121. As of June 2019, the DOT
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`had ranked approximately 1,600 intersections using the Prioritization Tool. JSF ¶ 129.
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`2 The Prioritization Tool was adapted from a similar tool developed by the National Cooperative
`Highway Research Program, overseen by the National Academy of Sciences. JSF ¶ 114.
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`In 2012, the New York City Council passed a law requiring the City to install APS at 25
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`locations per year. Id. ¶ 95. Between 2012 and 2015, the DOT installed APS at slightly more
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`than 25 locations each year, bringing the total number of intersections with APS to 131 by
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`November 1, 2015. Id. ¶¶ 97–100.
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`In 2014, the New York City Council passed a new law requiring the City to install APS
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`at 75 intersections annually, effective January 1, 2016. Id. ¶ 101. Between 2016 and 2018, the
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`DOT installed APS at slightly more than 75 intersections each year, raising the total number of
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`the City’s intersections with APS to 371 by 2019. Id. ¶¶ 102–104.
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`Since 2019, the DOT has received appropriations to install more APS than are required
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`under City law, with funding to install APS at 150 intersections per year in 2019–2020, 235 per
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`year in 2020–2021, and 305 per year in 2021–2024. Id. ¶¶ 106–107. As of September 10, 2019,
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`443 intersections within New York City were equipped with APS. Id. ¶ 108.
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`Further, in November 2019, after plaintiffs had moved for summary judgment in this
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`lawsuit, the New York City Council passed, and the Mayor signed, a law—the “Safe Streets
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`Legislation”—mandating “master plans” for city streets, sidewalks, and pedestrian spaces. See
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`N.Y.C. Admin. Code § 19-199.1; Koplik Decl., Ex. B. That law requires the DOT to issue a
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`five-year master plan every five years, beginning December 1, 2021, and by December 1 of
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`every fifth year thereafter. N.Y.C. Admin. Code § 19-199.1(b)(2), (c). It further sets certain
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`benchmarks that each master plan must include. Id. § 19-199.1(c)(2). For both the 2021
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`and 2026 master plans, the law requires the DOT to set, as a benchmark, the installation of APS
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`at no fewer than 2,500 intersections within the next five years, with installation of such signals at
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`no fewer than 500 intersections during each year of the plan. Id. § 19-199.1(c)(2)(vi), (3)(iii).
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`Thus, in sum, the 2019 Safe Streets Legislation requires the installation of APS at 5,000
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`intersections by 2031. The legislation does not, however, appear to allocate funding or resources
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`to meet these goals. See Def. Mem. at 12 n.5.
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`On October 21, 2019—the day plaintiffs moved for partial summary judgment—the DOT
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`also issued a memorandum entitled “Accessible Pedestrian Signals Policy.” Koplik Decl., Ex. A
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`(“2019 APS Memo”). That memorandum purports to “clarify” the City’s existing policy
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`regarding the installation of APS. Id. at 1. First, it states that “[e]ach newly approved signal will
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`be designed and constructed with APS.” Id.3 Second, it provides that APS will be installed
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`whenever either a Capital Street Project or Street Improvement Project (“SIP”)4 involves the
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`relocation or reconstruction of any traffic signal pole foundation. Id. at 2.
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`6.
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`Installing APS
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`Even at intersections that already have pedestrian control signals, the process of installing
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`APS is more burdensome than merely affixing a pushbutton unit to the signal. Because most
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`intersections do not have extant signals at all the locations necessary to effectively install APS,
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`“[t]he vast majority of locations require at least one or two new poles per corner.” Celentano
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`Decl. ¶ 6(f). Installing such poles requires the excavation of part of the sidewalk, cutting into the
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`roadway to install conduits and signal cables, and the installation of new foundation poles, as
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`well as restoration of the roadway, sidewalk, and roadway markings. Id. ¶ 6(e)–(k). As a result,
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`according to the DOT’s 30(b)(6) witness, the average cost per intersection to install APS
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`3 As discussed below, that policy reverses the City’s historic practice, which was generally not to
`do so. Between 1990 and 2014, no new traffic-signal installations included APS. JSF ¶ 133.
`Beginning in 2014, the DOT began ranking new traffic signals for the addition of APS, but
`continued to install new signals at a faster rate than it was adding APS. Compare id. ¶ 135
`(between 100 and 120 new traffic signals each year), with id. ¶¶ 95–104 (between 26 and 83 new
`intersections equipped with APS each year since 2014).
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` These terms are defined and discussed more fully below.
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`averaged approximately $60,930 in 2018. Benson Decl. ¶ 17. For the 85 intersections that were
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`equipped with APS in 2018, the total cost was $5.18 million. Id.
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`7.
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`Upgrades to Pedestrian Signals Other than APS
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`Over the years, the City has improved and modified various aspects of its streets, pedestrian
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`signals, and crosswalks, while not simultaneously installing APS. As discussed more fully
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`below, plaintiffs allege that making such improvements without also including APS violates the
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`ADA and Rehabilitation Act. The Court briefly describes each type of modification.
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`a.
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`New Signal Installations
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`In a typical year, the City installs between 100 and 120 traffic signals. JSF ¶ 135.
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`Between 1990 and 2014, none of these installations included APS. Id. ¶ 133. Between 2014
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`and 2019, the City ranked new traffic signals using the Prioritization Tool, but did not
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`consistently include APS with newly constructed signals. Id. ¶ 132. As of July 2019, DOT
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`purports to have adopted a policy requiring the installation of APS whenever a new traffic signal
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`is installed. See 2019 APS Memo at 1.
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`b.
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`Capital Street Projects and SIPs
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`Capital Street Projects, or “Capital Projects,” are major reconstruction projects, which
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`can range from repaving to full reconstruction of a roadbed, sidewalks, and utilities, among other
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`eclectic projects. JSF ¶ 178. They are planned, funded, and initiated by the DOT, but actually
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`constructed by the Department of Design and Construction (“DDC”) on the DOT’s behalf. Id. ¶ 179.
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`A SIP is generally of a similar scale—and can include redesigning or reconfiguring
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`intersection geometry, adding or removing lanes of traffic, adding or removing traffic and
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`pedestrian control signals, and adding or removing bike lanes or crosswalks. Id. ¶ 171. They
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`may also include “some level of signal work.” Id. ¶ 174. SIPs are carried out within the DOT,
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`without the involvement of the DDC, id. ¶ 171, and, unlike Capital Projects, do not involve the
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`full reconstruction of a roadbed or the utility lines underneath, see Benson Decl. ¶ 13. Even
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`though “a good majority” of all SIPs involve “some level of signal work,” Atkinson Decl., Ex. 3
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`(“Celentano Tr.”) at 48, only 14 of the 778 SIPs completed between 2009 and 2019 included the
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`installation of APS at the intersection(s) affected, JSF ¶ 173.
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`In the 2019 APS Memo, the DOT purports to have clarified its policy that it will install
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`APS whenever a Capital Project or SIP involves the relocation or reconstruction of any traffic
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`signal pole foundation. See 2019 APS Memo at 2.
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`c.
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`Signal Lens Replacements
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`Before 2000, New York City’s pedestrian crossing signals displayed textual messages
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`reading “walk” and “don’t walk” to indicate whether pedestrians should or should not cross the
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`street. JSF ¶ 137. Between 2000 and 2004, the DOT replaced the displays in every pedestrian
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`signal in the City to instead show a mid-stride white stick figure, signaling “walk,” and an
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`upraised orange hand, signaling “don’t walk.” Id. ¶¶ 137, 139. According to the DOT’s 30(b)(6)
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`witness, the City undertook that project to improve the “clarity of communication” to
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`pedestrians, especially for those who do not speak English, but did not also install APS at the
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`same time. Pl. 56.1 ¶ 70; Atkinson Decl., Ex. 2 (“Benson Tr.”) at 63. The DOT has conceded that
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`the clarity provided by such a display “is not available to pedestrians who cannot see the
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`display.” Def. 56.1 ¶ 71; Benson Tr. at 64. Unlike APS installation, the replacement of a signal
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`lens requires only the removal of one lens and the attachment of a new one. It does not involve
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`any construction with regard to the sidewalk, roadway, or any electrical cables or conduits.
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`Celentano Decl. ¶¶ 21–22.
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`Similarly, between 2012 and 2014, the DOT replaced over half of the City’s pedestrian
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`signal displays to include a “countdown clock” indicating how much time a pedestrian has to
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`finish crossing the street. JSF ¶ 141. As with the signal lenses discussed above, the City did not
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`concurrently add APS. Id. ¶ 142. The benefit of a flashing visual countdown clock is not
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`available to blind pedestrians. Id. ¶ 143. The installation of countdown clocks also involves
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`only removing one lens from the crossing signal and attaching a new one. It does not involve
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`any other physical alterations to the traffic signal or excavation of any roadway or sidewalk.
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`Celentano Decl. ¶¶ 17–18.
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`d.
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`Leading Pedestrian Intervals and Exclusive Pedestrian Phases
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`The City has also implemented two forms of timing changes at certain intersections,
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`which give pedestrians additional time to cross the street without any vehicles entering the
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`intersection.
`
`First, a Leading Pedestrian Interval (“LPI”) is a “signal timing treatment” that gives
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`pedestrians an advanced “walk” sign for about seven to 10 seconds before the parallel vehicular
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`traffic signal turns green. JSF ¶ 145. This allows pedestrians to enter a crosswalk before turning
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`vehicles have an opportunity to do so. It thereby “makes pedestrians more visible to drivers and
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`discourages motorists from aggressively turning before pedestrians begin crossing.” Benson
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`Decl. ¶ 22. The DOT’s 30(b)(6) witness avers that the safety benefits of LPIs inure to sighted
`
`and blind pedestrians alike because an LPI is a “training tool” that reminds motorists to “exercise
`
`greater caution when driving around pedestrians.” Id. However, he also testified at his
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`deposition that LPIs “can make an intersection more challenging for a blind or low vision
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`pedestrian[]” because, during an LPI, “the lack of sound of parallel traffic movement is, you
`
`know, mysterious and confusing to someone who is not able to see.” JSF ¶ 147; see also id.
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`¶ 149 (DOT received complaints that LPIs are “unsafe for the visually impaired”). By
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`August 2019, the City had implemented LPIs at 3,951 intersections, only 113 of which also have
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`APS. Id. ¶¶ 158–159. The presence of an LPI increases an intersection’s ranking—i.e., its
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`priority for being upgraded with APS—under the DOT’s Prioritization Tool. Id. ¶ 162.
`13
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`Case 1:18-cv-05792-PAE Document 126 Filed 10/20/20 Page 14 of 67
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`
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`Second, an Exclusive Pedestrian Phase (“EPP”), or “Barnes Dance,” is a timing treatment
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`in which pedestrians at all corners of an intersection have an exclusive interval during which to
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`cross using any of the crosswalks within an intersection. Id. ¶ 163. In other words, all vehicular
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`traffic has a red light, and all pedestrians at the intersection have a “walk” sign. Similar to LPIs,
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`EPPs can cause confusion and disorientation to blind and low-vision pedestrians who, without
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`APS, generally rely on the sound of parallel traffic to determine when it is safe to cross. Id.
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`¶ 164 (Benson: “My understanding of it is that a lot of people with vision impairments have
`
`either learned on their own or received training to use the sound of traffic movements to help
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`navigate. So in the absence of those sounds, it becomes disorienting.”). As of June 2019, 98
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`intersections in New York City have EPPs, none of which also are equipped with APS. Id.
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`¶¶ 168–169. As with LPIs, the presence of an EPP increases an intersection’s ranking under the
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`DOT’s Prioritization Tool. Id. ¶ 170.
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`“No physical alterations” are performed when implementing an LPI or EPP at a given
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`intersection. Celentano Decl. ¶¶ 9, 14. Rather, each requires only that a new “phasing
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`document” be uploaded to the intersection’s traffic controller via a flash drive with the new
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`timing information. Id. ¶¶ 8, 13.
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`8.
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`Regulatory Guidance on the Installation of APS
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`The U.S. Department of Justice (“DOJ”) is responsible for promulgating regulations
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`under the ADA. See 42 U.S.C. § 12134(a). However, Congress has also tasked a separate
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`federal agency, the Architectural and Transportation Barriers Compliance Board (“Access
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`Board”) with issuing “minimum guidelines” under the ADA, id. § 12204(a), with which the
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`DOJ’s regulations “shall be consistent,” id. § 12134(c). These guidelines “do not have any
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`binding effect on their own, but instead help shape the Attorney General’s regulations, which
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`
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`14
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`Case 1:18-cv-05792-PAE Document 126 Filed 10/20/20 Page 15 of 67
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`
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`must be ‘consistent’ with the Board’s guidelines.” Paralyzed Veterans of Am. v. Ellerbe Becket
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`Architects & Eng’rs, P.C., 950 F. Supp. 389, 390 (D.D.C. 1996).
`
`In 1999, the Access Board began the rulemaking process for guidelines related to
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`pedestrian facilities in “public rights-of-way,” and in 2002 and 2005 released proposed drafts of
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`such guidelines. See Accessibility Guidelines for Pedestrian Facilities in the Public Right-of-
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`Way, 76 Fed. Reg. 44664, 44667 (July 26, 2011) (notice of proposed rulemaking summarizing
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`past draft guidelines and regulatory history).
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`On July 26, 2011, the Access Board published in the Federal Register a notice of
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`proposed rulemaking, proposing its Accessibility Guidelines for Pedestrian Facilities in the
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`Public Right-of-Way, or “PROWAG.” Id.5 However, the Access Board has not formally
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`promulgated a final rule adopting the PROWAG. And the DOJ has never taken action
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`conforming its regulations to the PROWAG’s recommendation. See, e.g., Sarfaty v. City of Los
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`Angeles, No. 17 Civ. 3594 (SVW), 2020 WL 1078804, at *5 (C.D. Cal. Feb. 7, 2020) (“The Court
`
`declines to consider the PROWAG standards in its analysis, because (as noted by the City), they
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`have not yet been adopted by the DOJ, the agency responsible for implementing ADA
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`regulations.”); Scharff v. County. of Nassau, No. 10 Civ. 4208 (DRH), 2014 WL 2454639, at *12
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`(E.D.N.Y. June 2, 2014) (noting that Access Board has “proposed, but not yet promulgated,
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`standards for public rights-of-way”).
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`The PROWAG contains some guidance on the installation of APS. Relevant here, it
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`states at R209.1 that “[w]here pedestrian signals are provided at pedestrian street crossings, they
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`shall include accessible pedestrian signals and pedestrian pushbuttons.” 76 Fed. Reg. at 44690.
`
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`5 Although the Access Board’s guidelines do not use this language, the acronym PROWAG
`stands for “Proposed Right-of-Way Access Guidelines,” and reflects common usage. See, e.g.,
`Def. 56.1 ¶¶ 22–23.
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`15
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`Case 1:18-cv-05792-PAE Document 126 Filed 10/20/20 Page 16 of 67
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`That specification appears to relate only to newly installed pedestrian signals, because R209.2
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`further states that “[e]xisting pedestrian signals shall comply with R209.1 when the signal
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`controller and software are altered, or the signal head is replaced.” Id

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