throbber

`INDEX NO. 157500/2012
`FILED: NEW YORK COUNTY CLERK 11/13/2017 03:06 PM
`
`
`
`
`
`
`NYSC:
`3F DOC. NO. 106
`RaCaIVaD NYSCEF: 11/13/2017
`NYSCEF DOC. NO. 106
`RECEIVED NYSCEF: 11/13/2017
`SUPREME COURT OF THE STATE OF NEW YORK
`NEW YORK COUNTY
`
`
`PRESENT: HON.W. FRANC PERRY J.S.C.
`
`JOAN REVEYOSO
`
`Plaintiff
`
`_ v _
`TOWN SPORTS INTERNATIONAL, LLC d/b/a
`NEW YORK SPORTS CLUB
`Defendants
`
`PART Q
`INDEX NO. 157500/20l2
`
`MOT. DATE September 26, 20l 7
`
`MOT. SEQ. NO. 005
`
`The following papers were read on this motion for Attemey’s Fees and Cross Motion to Set Aside
`Jury Verdict; or alternatively to reduce plaintiff’s damage award
`Notice of Motion/Petition/O.S.C. — Affidavits — Exhibits 1 through 10
`Notice ofCross-Motion/Answering Affidavits —— Exhibits A
`Replying Affidavits
`Exhibits 1 through 4
`
`
`ECFS DOC No(s). 1-1 1‘ HS
`ECFS DOC No(s). l-l3
`
`ECFS DOC No(s).
`l—3' 1-43' 1—6
`
`This is an action alleging disability discrimination against defendant in violation of New York City
`Human Rights Law (“NYCHRL”) §8—107, et seq. Plaintiff Joan Reveyoso, a sightless, former member
`of defendant Town Sports International, LLC d/b/a New York Sports Club (defendant and/0r NYSC), al-
`leges that defendant revoked a reasonable accommodation of providing an employee to escort her to and
`from an elliptical machine and program the machine for her use. Defendant NYSC contends that it did
`not refuse to provide this accommodation to plaintiff.
`
`On February 8, 2017, after a five-day trial, a jury determined that defendant failed to provide plain-
`tiff with a reasonable accommodation and awarded damages to plaintiff in the amount of $30,000 for
`mental anguish. In Motion Sequence No. 005, plaintiff moved by Order to Show Cause, seeking rea-
`sonable attorneys’ fees and costs as the prevailing party; defendant, filed a cross motion on May 24,
`2017, opposing plaintiff’s application for attorneys’ fees and seeking to set aside the verdict, as against
`the weight of the evidence and seeking a new trial on liability, on the grounds that there was no evidence
`of any kind that defendant refused, withheld or denied plaintiff access to the facility or any of its privi-
`leges, nor was there any evidence that defendant denied plaintific a reasonable accommodation. Defend—
`ant also moves alternatively, pursuant to CPLR §5501(c), to reduce the damage award under a material
`deviation standard of review. The Order to Show Cause and Cross Motion are consolidated for decision.
`
`FACTUAL BACKGROUND/TRIAL TESTIMONY and JURY VERDICT
`
`The facts of this matter are largely undisputed. Prior to any witness testimony, the parties stipulated
`to the following: “It has been agreed and the Defendant admitted the Plaintiff, one, has a disability as de—
`fined by the New York City Human Rights Law, and secondly, the Defendant is [an] entity-covered by
`the disability accommodations provisions of New York City Human Rights Law.” (Avila Atf. in Opp,
`Ex. A, p. 206, L. 13-18). The only issue at trial involved whether defendant had provided plaintiff with
`a reasonable accommodation and whether plaintiff had sustained any emotional pain or mental anguish
`as a result of defendant's alleged failure to provide her with a reasonable accommodation. In response to
`question number one, “Did plaintiff prove that the Defendant failed to provide Plaintiff with a reasona-
`ble accommodation” five out of six jurors answered Yes. (Avila Aff. in Opp., Ex. A, p. 338, L. 16-18).
`The jury also found that plaintiff has suffered emotional damages and awarded her $30,000 in damages.
`Following the jury’s verdict, plaintiff sought attorneys’ fees and costs, as the prevailing party, in the
`amount of $169,050.94.
`
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`INDEX NO. 157500/2012
`FILED: NEW YORK COUNTY CLERK 11/13/2017 03:06 PM
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`FILED: NEW YORK COUNTY CLERKIllm
`
`
`
`
`
`NYSC.
`3F DOC. NO. 106
`C«IV«.D NYSC3F: 11/13/2017
`NYSCEF DOC. NO. 106
`RECEIVED NYSCEF: 11/13/2017
`According to plaintiff’s testimony, she joined the NYSC at Lincoln Center, on élst Street and
`Broadway, on October 11, 2011, intending to use an elliptical bike. (Avila Aff. in Opp., Ex. A, p. 49-50).
`Plaintiff testified that she completed paperwork and sat down with one of the NYSC’s trainers and dis-
`cussed with her the specific accommodation she would require to utilize the club’s facilities. Specificall-
`ly, plaintiff testified, “I told her I would need an escort to the bike, I would need the bike’s computer set
`up, and I would need an escort from the bike, and that was all I said I Would need.” (Avila Aff. in Opp.,
`Ex. A, p. 51, L. 17-20). Plaintiff testified that the trainer indicated that her request to be escorted to and
`from the bike “would be no problem, and I thought that was great, and I found a bike I could use, and
`she said they had a Silver Sneakers Program, and since I had the insurance I did, it would be taken care
`of by my insurance.
`I was thrilled.” (Avila Aff. in'Opp., EX. A, p. 51, L. 22-26).
`
`The evidence showed that plaintiff was a sporadic user of the NYSC and that during her member-
`ship from October 11, 2011 through April 5, 2012, when she voluntarily resigned from the NYSC, she
`used the defendant’s facility a total of five to seven times. (See Member Usage Report, NYSEF Doc.
`No. 64). Plaintiff testified that she originally thought that she would avail herself of the NYSC’s circuit
`training equipment but after cancelling her fitness evaluation test due to illness and not rescheduling the
`evaluation, she decidedthat my entire use of this gym would be that bike and nothing else.” (Avila Aff.
`in Opp., EX. A, pp. 58-59, L.25 -26, L. 2). When asked specifically, on direct examination, whether
`plaintiff had any trouble being escorted to the elliptical bike during her membership at NYSC, plaintiff
`testified “I never had trouble being conducted to it. .
`.. Andjust to clear this up, in terms of being con-
`ducted back from it to the door, I was only conducted from the bike to the door one time. The rest of
`time I got to the door myself.” (Avila Alf. in Opp., Ex. A, p. 59, L. 10-11; 15-18).
`.
`
`Additionally, when asked whether she complained to anyone at NYSC about not having an escort
`return her from the bike, plaintiff unequivocally testified that “I don’t recall saying anything. If I did, I
`didn’t — if I would have, I probably wouldn’t have made much of an issue of it.” (Avila Aff. in.Opp., Ex.
`A, p.59, L. 21-23). Similarly, when asked if plaintiff ever made a specific complaint about not being es-
`corted after her work out, she again unequivocally testified that she did not make any complaint to any-
`one at NYSC. (Avila Aff. in Opp., Ex. A, p. 61, L. 8-10). Finally, plaintiff described her overall experi-
`ence at NYSC as “fine”. (Avila Aff. in Opp., Ex. A, p.61, L. 14-15).
`
`Plaintiff also called Mr. George Hondros as a witness. Mr. Hondros was the general manager at the
`NYSC during the time period that plaintiff was a member, and at the time of trial he no longer worked
`for NYSC. Mr. Hondros testified that he began working at NYSC after plaintiff had already been a
`member and thus, his testimony was limited to his specific interactions with plaintiff and with other
`NYSC employees who had discussed plaintiff’s bike usage with him. Mr. Hondros testified that during
`his tenure, he did not specifically see plaintiff use any particular equipment but “I do know that she used
`other pieces specifically with other trainers who helped her go up and down the stairs, and helped her
`get to machines, and other team members, employees1n the building.” (Avila Aff.1n Opp., Ex. A,
`pB9L nzn
`
`Mr. Hondros explained that on more than one occasion he would speak to plaintiff to determine
`whether she could provide him with a time frame that she would be utilizing the club so that he could
`make certain to have a staff member available to escort her to the equipment. (Avila Aff. in Opp., Ex. A,
`p. 146, L. 4-6). Mr. Hondros recalled a conversation he had with plaintiff attempting to confirm a time
`table, not a specific appointment, so that he could ensure that a trainer would be available to escort
`plaintiffto the bike and set up the equipment. (Avila Aff. in Opp., Ex. A, p.146-147). Despite several
`attempts to have plaintiff provide him with a timetable to ensure that a trainer would be available to es:
`eort plaintiff to and from the bike, Mr. Hondros testified that plaintiff told him “she wasn’t able to give
`me a specific time.” (Avila Ali“. in Opp., Ex. A, p.147, L. 26).
`
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` FILED: NEW YORK COUNTY CLERKmll
`INDEX NO. 157500/2012
`FILED: NEW YORK COUNTY CLERK 11/13/2017 03:06 PM
`
`
`
`
`
`
`
`NYSC.
`3F DOC. NO. 106
`C«IV«.D NYSC3F: 11/13/2017
`NYSCEF DOC. NO. 106
`RECEIVED NYSCEF: 11/13/2017
`Mr. Hondros testified about an incident that occurred on the day plaintiff resigned her membership,
`on or about April 5, 2012. Mr. Hondros was at the front desk and he heard plaintiff complaining about
`the NYSC_and “about how everyone in there was, quote, unquote, ‘worthless.’” (Avila Aff. in Opp., Ex.
`A, p.150, L. 1-12). Mr. Hondros testified that this particular event Was precipitated by the fact that a
`trainer was not available to escort plaintiff “at that time when she wanted it, when she came into the
`building.” (Avila Aff. in Opp., Ex. A, p.150, L. 13-19). Mr. Hondros explained that he attempted to
`work with plaintiff to ascertain the time frame she would be utilizing the facility because from a “busi—
`ness side, it doesn’t make sense to just have a staff member sitting there, waiting for a potential anything
`to happen. People are scheduled for certain shifts. Were held accountable for certain responsibilities,
`and thats what their jobIS entitled for.
`It’s not just to have somebody just being there for an extra body
`for anything that happensin the club.” (Avila Aff. in Opp. Ex. A, p. 152, L. 17-25).
`On cross examination, Mr, Hondros elaborated that he wanted to coordinate a timetable with plain-
`tiff to ensure that he would have staff available to escort her to and from the bike. Specifically, he ex-
`plained that there “would be times where it would be difficult if the only person at the front desk - - we
`can’t just leave the front desk, so anyone can just walk in, so there was [sic] times it was a little bit de-
`layed.” ' (Avila Aff. in Opp., Ex. A, p.177, L. 12-16). Mr. Hondros testified that he never refused to pro-
`vide plaintiff with accommodation, nor did any employee of NYSC ever refuse to assist plaintiff. (Avila
`Aff. in Opp., Ex. A, p.180, L. 249).
`
`
`
`Mr. Hondros” testimony was corroborated by Ms. Allisyn, who worked at the NYSC from July 2010
`as the Silver Sneakers program advisor. (Avila Aff. in Opp., Ex. A, p.249). Ms. Allisyn testified that
`Mr. Hondros had agreed to accommodate plaintiff and that he explained that it would be helpful for
`plaintiff to call in advance as the club does not “have‘people just standing around doing nothing, so I
`would like you to call in advance so that we can make special arrangements to have somebody there to
`help you in the way that you need it, but you need to call in advance, and Joan told him she was not a
`baby, she didn’t need special attention, and she was too busy to do that.” (Avila Aff. in Opp., Ex. A,
`p.260, L. 17-24).
`'
`
`Ms. Allisyn also testified that plaintiff 'was offered free personal training to assist her with setting up
`the elliptical bicycle and further corroborated Mr. Hondros’ testimony as follows: “That's what George
`was saying, make the appointment, and somebody will extend themselves and help you in whatever way
`you need. Q. They wanted her to have a personal trainer to get her to the bicycle? A. Right.” (Avila
`Aff.1n Opp., Ex. A, p. 278, L. 10- 15)
`
`Ms. Allisyn testified that NYSC had a policy of accommodating everyone, including someone with
`a disability, as she explained that they were there to help people reach their goals and achieve whatever
`they came in to achieve. s(Avila Aff. in Opp., Ex. A, p.259, L. 5-15). Ms. Allisyn testified that no one at
`NYSC refused to accommodate plaintiff. (Avila Afic. in Opp., Ex. A, p.260, L. 9-12). Finally, Ms. Al-
`lisyn testified that it was her understanding that during the times plaintiff came to the NYSC she was
`able to use the services ofthe club. (Avila Aff. in Opp., Ex. A, p.261, L. 5-8). .
`
`In describing the events that led to her voluntarily resigning her membership, plaintiff testified that
`on April 5, 2012 she had walked into NYSC intending to do her half hour workout on the bike and an
`employee came to her and said “we can’t do this anymore, we can’t help you anymore, and I’m the one
`who gets to give you the bad news”. (Avila Aff. in Opp. Ex. A, p. 63, L. 3--6) Plaintifftestified that she
`asked to go upstairs and speak to the manager, Mr. Hondros and that he had repeated what the other em-
`ployee had told her almost word for word and that1n that moment, “realizing my assistance was gone,
`[I] proceeded to resign.” (Avila Aff.1n Opp. Ex. A, p. 63, L. 26, p. 64, L. 2). Plaintiff also testified that
`someone from NYSC had suggested that she “call Medicare and get someone to sit with me the whole
`time I was on the bike, which I couldn’t even imagine doing. It would certainly be unnecessary as I said
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`INDEX NO. 157500/2012
`FILED: NEW YORK COUNTY CLERK 11/13/2017 03:06 PM
` FILED: NEW YORK COUNTY CLERK 1133592
`
`
`
`
`
`NYSC:
`NYSCEF DOC. NO. 106
`RECEIVED NYSCEF: 11/13/2017
`3F DOC. NO. 106
`. RaCaIVaD NYSCEF: 11/13/2017
`.
`.
`.. and I turned 180 degrees to walk from the reception desk to the door”. (Avila Aff. in Opp., Ex. A,
`p.64, L. 14-21).
`
`On cross examination, plaintiff reiterated her thoughts that utilizing the Silver Sneakers program to
`contact Medicare to arrange for a personal trainer to accompany her at her workout was “overkill and it
`was stupid, .
`.
`. there was no point to it.” (Avila Aff. in Opp., Ex. A, p.86, L. 14-16). Plaintiff also reit-
`erated during cross examination that it was her decision to resign from NYSC and that she never com-
`plained to anyone about her experience during her membership, nor did she ever complain to anyone at
`the club prior to April 5, 2012 that she was not being accommodated. (Avila Afi‘. in Opp., Ex. A, pp.86,
`88, 89). The record also shows that plaintiff never contacted Medicare to arrange for a personal trainer
`through the Silver Sneakers program, nor did she ever contact NYSC prior to her workout to provide a
`general timeframe of when she Would be using the facility.
`
`Plaintiff testified that no one from NYSC told her that she could not utilize the facility, nor did any-
`one ever specifically tell her that she should resign her membership. (Avila Aff. in Opp., Ex. A, 85, L.
`6-9). Rather, plaintiff testified that she “inferred” that she had no choice but to resign her membership
`and that her “perception” of the events that transpired on April 5, 2012, left her no choice but to resign
`her membership from NYSC. (Avila Aff. in Opp., Ex. A, p. 86, L. 6-16; p.86-87). Thereafter in June,
`2012, plaintiff hired a lawyer to write a letter to NYSC threatening a lawsuit because she did not want
`other people “to be treated the same way”. (Avila Aff. in Opp., Ex. A, p. 73, L. 2-12; p.89, L.2-6).
`
`STANDARD OF REVIEW/ANALYSIS
`
`CPLR §4404(a) provides in pertinent part that, "the court may set aside a verdict or any judgment
`entered thereon and
`may order a new trial of a cause of action or separable issue where the verdict is
`contrary to the weight of the evidence." The question of whether a verdict is against the weight of the
`evidence involves a discretionary balancing of many factors, and. for a court to conclude that the verdict
`is against the weight of the evidence, there must be no valid line of reasoning which could possibly lead
`rational people to the conclusion reached by the jury on the basis of the evidence presented at trial. Co-
`hen v Hallmark Cards, Inc. 45 NY2d 493 (1978); Killon v Parrolta. 28 NY3d 101 (2016).
`In short, a
`new trial cannot be granted if the jury could have reached its conclusion on any fair interpretation of the
`evidence. Goldsteirz v Snyder, 3 AD3d 322 (15‘ Dept 2004); See also, Lolik v Big VSupermarke/s, 86
`NY2d 744, 746 (1995).
`
`"[T]he determination that a factual finding was against the preponderance of the evidence is itself a
`factual determination based on the reviewing court's conclusion that the original trier of fact has incor-
`rectly assessed the evidence (see Middleton v Whitridge, supra pp 505-508, 514)”. Cohen v Hallmark
`Cards. Inc. 45 NY2d at 497. It is discretion-laden analysis and the critical inquiry is whether the ver-
`dict rested on a fair interpretation of the evidence (see McDermaII v Coffee Beanery, Ltd. 9 AD3d 195,
`206, 777 NYSZd 103 [2004]). Thejudge's common sense reaction to the evidence (Siegel, NY Prac §
`406, at 687 [4th ed]), informed by the judge's professional judgment, is the practical test employed to
`determine whether a verdict rested on a fair interpretation of the evidence. (see, Nicastro v Park, 113
`AD2d 129, 135 [1985]). Notably, a court‘s discretion to set aside a verdict as against the weight of the
`evidence
`15 at its broadest when it appears that the unsuccessful litigant‘s evidentiary position was par-
`ticularly strong compared to that of the victor". Nicastro, 113 AD2d at 136.|
`
`‘ Defendant did not move for a directed verdict at the end of the trial, nor did defendant argue in its post-trial submission that plaintiff
`failed to prove a prima facie case offailure to accommodate under NYCHRL §8~|07. Accordingly. the court has only considered the is-
`sue of vacating thejury‘s verdict as framed by defendant’s cross motion.
`
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`INDEX NO. 157500/2012
`FILED: NEW YORK COUNTY CLERK 11/13/2017 03:06 PM
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` ' FILED: NEW YO' COUNTY CLERKmug
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`3F DOC. NO. 106
`C«IV«.D NYSC.3FF:-11/l3/2017
`NYSCEF DOC. NO. 106
`RECEIVED NYSCEF: 11/13/2017
`NYSC.
`Under NYCHRL §8-107(4)(a), it is “an unlawful discriminatory practice for any .
`.
`. owner, lessee,
`proprietor, manager, superintendent, agent or employee of any place or provider of public accommoda-
`tion, because of the actual or perceived .
`.
`. disability .
`.
`. of any person, directly or indirectly, to refuse,
`withhold from or deny to such person any of the accommodations, advantages, facilities or privileges
`thereof.” NYC Admin Code §8-107(4)(a). The NYCHRL requires that “any person prohibited .
`from
`discriminating on the basis of disability shall make reasonable accommodation to enable a person with a
`disability to.
`.enjoy the right or rights1n question provided that the disability1s known or should have
`been known by the covered entity.” NYC Admin Code §8-107(15) (a)
`
`A prima facie case of failure to accommodate requires a showing that (l) plaintiff was disabled
`within the meaning of the statutes; (2)'the covered entity had notice of the disability; (3) plaintiff could’
`enjoy the rights in question, with a reasonable accommodation; and (4) the covered entity refused to
`make a reasonable accommodation”. See, e.g., Pimentel v Citibank, NA, 29 AD3d 141 , 145-146 (lSI
`Dept. 2006), lv denied 7 NY3d 707[2006].
`
`The NYCHRL defines T‘reasonable accommodation” as “such accommodation that can be made that
`shall not cause undue hardship in the conduct of the covered entity’s business. The covered entity shall
`have the burden of proving undue hardship.” NYC Admin Code '§8-102[18]. The First Department has
`interpreted this section to mean that “there is no accommodation .
`.
`. that is categorically excluded from
`the universe of reasonable accommodation.” Phillips v City ofNew Ybrk, 66 AD3d 170, 182 (15‘ Dept
`2009); see also, Miloscia v BR. Guest Holdings LLC, 33 Misc 3d 466, 477, 928 N.Y.S.2d 905 [Sup Ct,
`NY County 2011], afl’d inpart, mod in part, 94 A.D.3d 563, 942 N.Y.S.2d 484 [lst Dept 2012]).
`
`Additionally, the First Department has held that a covered entity is not obligated to provide the dis-
`abled person with the specific accommodation that the diSabled person requests or prefers. Porter v City
`ofNew York, 128 AD3d 448,449 (lSt Dept 2015); Silver v City ofNYDept. ofHomeless Servs.. 115
`AD3d 485, 486 (15‘ Dept 2014). “The first step in providing a reasonable accommodation is to engage
`in a good faith interactive process that assesses the needs of the disabled individual and the reasonable-
`ness of the accommodation requested.” Phillips, 66 AD3d at 176. There is no controlling authority,
`however, holding that a covered entity may be held liable based solely on its failure to engage in an in-
`teractive process, absent a showing that the breakdown of the interactive process led to the covered enti-
`ty5 failure to provide a reasonable accommodation. See, e. g, Hayes v Estee Lauder Cos. 34 AD3d
`735, 737 (2"d Dept 2006) (court upholdingJury finding that employer had endeavored to provide plain-
`tiff with reasonable accommodation).
`-
`
`Established precedent makes clear that both the disabled person and the covered entity have a duty
`to act in good faith once the request for an accommodation has been made and when it is the disabled
`person who is responsible for the breakdown of the interactive process, she may not recover for a failure
`to accommodate. Graham v New York State Ofiice ofMental Health. 2017 NY. App. Div. LEXIS 7542;
`2017 NY Slip Op 07501 (3rd Dept. 2017), citing, (Matter of Vinikoflv New York State Div. ofHuman
`Rights, 83 AD3d at 1163- 1164, Pimentel v Citibank NA. 29 AD3d at 148; Pembroke v New York State
`Off OfCt Admin. 306 AD2d at 185); Conneen v MBNA Am. Bank, NA. 334 F3d 318, 333 (3rd Cir
`2003).
`
`Application. of these legal principles to the record here, leads to the unmistakable conclusion that
`the jury’s factual finding that NYSC did not provide plaintiff with a reasonable accommodation, simply
`cannot be supported by any fair interpretation of the evidence. As noted, on a motion to set aside the
`verdict as against the weight of the evidence, the question is whether the result the jury reached is so
`contrary to the conclusion that might fairly have been reached on the basis of the evidence, that the court
`should exercise its power to overturn the jury’s determination, “based on the reviewing court’s conclu-
`sion that the original trier of fact has incorrectly assessed the evidence”. Cohen, 45 NY2d at 497.
`
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`INDEX NO. 157500/2012
`FILED: NEW YORK COUNTY CLERK 11/13/2017 03:06 PM
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`
`
`NYSC.
`3F DOC. NO. 106
`C«.IV«D NYSCEF: 11/13/2017
`NYSCEF DOC. NO. 106
`RECEIVED NYSCEF: 11/13/2017
`
`At trial, the parties stipulated that plaintiff was disabled within the meaning of the NYCHRL and
`that the defendant was a covered entity under the NYCHRL. As such, the only issue before thejury was
`whether plaintiff proved that defendant failed to provide a reasonable accommodation. The jury heard
`evidence that plaintiffjoined the NYSC on October 11, 2011 and asked for a reasonable accommoda-
`tion, to be escorted to and from the elliptical bike, have it programmed for her work out and then to have
`someone return to escort her back up the stairs. (Avila Aff. in Opp. Ex. A, p. 51, L. 22-26; p 75, L. 12-
`18). The NYSC did not have an elevator and the elliptical bike was one flight below the lobby. (Avila
`Afic inOpp., Ex. A, p53, L. 13-20).
`
`According to the case law, once the request for accommodation is made, both plaintiff and NYSC
`had a duty to act in good faith in reaching an accommodation that would allow plaintiff to enjoy the use
`of the facility without placing an “undue burden” on NYSC. See, e.g_., Graham v New York State Office
`ofMental Health, 2017 NY. App.»Div.‘LEXIS 7542; 2017 NY Slip Op 07501 (3rd Dept. 2017), citing,
`(Matter of Vmikoflv New York State Div. ofHuman Rights, 83 AD3d at 1163-1164. The jury heard evi-
`dence that defendant explained to plaintiff that in order to accommodate her she would need to either
`call ahead and provide NYSC with a general time frame to ensure that an employee would be available
`to escort her to and-from her work out, or plaintiff could avail herself of the Medicare option to have a
`personal trainer assigned through the Silver Sneakers program.
`
`The trial testimony demonstrated that plaintiff rejected the reasonable accommodation to call ahead
`when she told George Hondros that “she wasn’t able to give him a time frame” (Avila Aff. in Opp., Ex.
`A, p.147, L26), insisting that NYSC provide her with the accommodation she specifically preferred as
`she did not want to call ahead. Additionally, the jury heard testimony that plaintiff never even attempted
`to utilize the Medicare option, deeming that “overkill” and “unnecessary”. (Avila Aff. in Opp., Ex. A, p.
`86, L. 14-16).
`-
`'
`
`The record contains unequivocal testimony that defendant never refused to accommodate plaintiff
`but merely asked plaintiff to either utilize the Silver Sneakers program Medicare option to have a per-
`sonal trainer accompany her during her work outs, or to give NYSC a time frame related to her work out
`to ensure that an employee would be available to escort plaintiff to and from her work out. (Avila Afl“. in
`Opp., Ex. A, p. 84, L. 20-26, p. 146, L 2- 17). Plaintiff was never told that she could not come to NYSC,
`nor was she ever refused or denied access to NYSC.(Av11aAff1n Opp. EX. A, p. 85, L. 6-9-). Further-
`more, plaintiff never made any complaints to anyone at NYSC even though she testified that there were
`times that she waited for an employee to escort her upstairs but after waiting in vain, decided to find her
`own way outside with help from another patron. (Avila Aff. in Opp., Ex. A, p.89, L. 7-14; p. 76-77; p.
`59-61).

`
`The jury’s verdict that defendant did not provide plaintiff with a reasonable accommodation simply
`cannot be supported by any fair interpretation of the record evidence. Plaintiff’s own actions and testi-
`mony demonstrate the “reasonable” nature of defendant’s requests as plaintiff herself admitted that at
`times, she would wait in vain for an employee to escort her from the bicycle to the stairs, when no em-
`ployee was available. (Avila Aff. in Opp., Ex. A, p.76, L. 14; p. 77, L. 2). Moreover, Plaintiff unequiv-
`ocally testified that she did not complain to anyone at NYSC about her experience during her member-
`ship, nor did she make any complaints to anyone at the club prior to April 5, 2012 that she was not being
`accommodated. (Avila Afl‘. in Opp., Ex. A, pp.86, 88, 89). Plaintiff herself admitted that she rejected
`the accommodation options that were offered to her, i.e., the Medicare option of a personal trainer,
`and/or calling ahead to ensure that an employee escort would be available, noting that it was “unneces-
`sary’, “stupid” and “overkill”. (Avila Aff. in Opp., Ex. A, p.64, L. 14-21).
`
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`INDEX NO. 157500/2012
`FILED: NEW YORK COUNTY CLERK 11/13/2017 03:06 PM
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` FILED: NEW YORK COUNTY CLERKW112
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`3F DOC. NO. 106
`C«.IV«.D NYSC3F: 11/13/2017
`NYSCEF DOC. NO. 106
`RECEIVED NYSCEF: 11/13/2017
`NYISC.
`Upholding the jury’s verdict on this factual record, would not advance the legislative intent of en-
`couraging public institutions to engage in an interactiveprocess to craft an accommodation that allows a
`covered person to enjoy the facility’s offerings, while not imposing an “undue hardship” on the covered
`entity’s business. See, Jacobsen v New York City Health & Hosps, Corp. 22 NY3d 824, 834 (2014);
`Phillips v City ofNew York, 66 AD3d at 174 (“when confronted with a disabled employee’s request for
`' reasonable accommodation, the employer is to engage in a good faith interactive process whereby em-
`ployer and employee clarify the individual needs of the employee and the business, and identify the ap-
`propriate reasonable accommodation. This good faith process is ‘the key mechanism for facilitating the
`integration of disabled employees into the workplace’ (citation omitted)”.
`
`As the Court ofAppeals explained in Jacobsen, unlike the State HRL, the NYCHRL places the bur-
`den on the employer to show the unavailability of any safe and reasonable accommodation and to show
`that any proposed accommodation would place an undue hardship on its business. Jaeobsen, 22 NY3d
`at 834, citing, Romanello v [mesa Sanpaolo SpA, 22 NY3d 881, 885 (2013). Moreover, the First De-
`partment has held that an employee cannot reject an employer’s attempt to reasonably accommodate the
`disability at issue on the basis that the accommodation is not the employee’s preference or Specific
`choice. Porter v City ofNew York. 128 AD3d 448, 449 (1St Dept 2015); Silver v City ofNYDept. of
`' Homeless Servs,, 115 AD3d 485, 486 (15‘ Dept 2014). Indeed, the legislative history 0fthe NYCHRL
`confirms the New York City Council’s legislative policy choice to deem all accommodations reasonable
`“except for those a defendant proves constitute an undue hardship”. Phillips v City ofNew York 66
`AD3d at 181.
`
`As such, the interactive process between plaintiff and defendant for the purpose of reaching a mutu—
`ally acceptable accommodation, is deeply embedded in the fabric of the NYCHRL, specifically as it re-
`lates to a defendant’s ability to demonstrate that the requested accommodation presents an undue hard-
`ship in the conduct of the covered entity’s business. Jacobsen v New York City Health & Hosps. Corp.
`- 22 NY3d 824, 834 (2014); Phillips v City afNew York 66 AD3d at 174; Silver v City ofNYDept. of
`Homeless Says, 115 AD3d 485, 486 (15‘ Dept 2014).
`
`Here, plaintiff admitted that she alone concluded that NYSC was revoking the accommodation and
`that she had been “kicked out”,.during what she described as a very tense encounter on April 5, 2012.
`(Avila Aff. in Opp., Ex. A, p.64, L. 23-64). Her testimony demonstrates that in this highly-charged mo-
`ment, she chose to voluntarily resign her membership, noting that someone from NYSC had suggested
`that she “call Medicare and get someoneto sit with me the whole time I was on the bike, which I
`couldn’t even imagine doing. .It would certainly be unnecessary as I said .
`.
`.. and I turned 180 degrees
`to walk from the reception desk to the door”. (Avila Aff. in Opp, Ex. A, p. 64, L. 14-21). The next time
`the NYSC heard from plaintiff was in June, 2012 through a lawyer’s letter, threatening a lawsuit. (Avila
`Aff. inOpp, Ex. A, p. 73, L. 2- 12, p.89 L.-.26)
`
`In opposition to defendant’s motion to set aside the verdict as against the weight of the evidence,
`plaintiff argues that the verdict is supported by a fair interpretation of the evidence and that the jury re-
`solved credibility issues in favor of plaintiff, specifically crediting plaintiff’s testimony that the Medi-
`care option of a personal trainer was “overkill” and simply unrealistic. This argument however, is con-
`trary to precedent in the First Department which holds that a covered entity is not obligated to provide a .
`disabled person with the specific accommodation the disabled person requests or prefers. Porter v City
`ofNew York, 128 AD3d 448, 449 (1St Dept 2015); Silver v City afNYDep‘t. ofHomeless Servs., 115
`AD3d 485, 486 (15‘ Dept 2014). Moreover, this argument ignores the legislative history of the NY-
`CHRL and the specific policy choice made by the New York City Council to deem all accommodations
`reasonable “except for those a defendant proves constitute an undue hardship”. Phillips v City ofNew
`York. 66 AD3d at 181.
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`FILED: NEW YORK COUNTY CLERK llfly'bZ‘
`INDEX NO. 157500/2012
`FILED: NEW YORK COUNTY CLERK 11/13/2017 03:06 PM
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`NYSC.
`3F DOC. NO. 106
`C«IV«.D NYSC3F: 11/13/2017
`NYSCEF DOC. NO. 106
`RECEIVED NYSCEF: 11/13/2017
`In that regard, the statute specifically cites factors to be considered in the evaluation as to whether
`an accommodation would cause an undue hardship, including, “(b) The overall financial resources of the
`facility or the faculties involved in the provision of the reasonable accommodation; the number of per-
`sons employed at such facility; the effect on expenses and resources, or the impact otherwise of such ac-
`commodation upon the operation of the facility;”. NYC Admin Code §8-107(15) (b).
`
`Here, defendant’s manager, Mr. Hondros, testified that he had several conversations with plaintiff
`attempting to explain to her the reason NYSC was asking her to provide a time frame that she would be
`utilizing the club’s facilities. (Avila Aff. in Opp., Ex. A, p. 148, L. 4-8). Mr. Hondros testified that he
`wanted to ensure that an employee would be available to escort plaintiff to and from the elliptical bike;
`specifically, he explained that there “would be times where it would be difficult if the only person at the
`front desk - - we can’t just leave the front desk, so anyone can just walk in, so there was [sic] times it
`was a little bit delayed." (Avila Aff. in Opp., Ex. A, p.177, L. 12-16). Mr

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