throbber

`INDEX NO. 157500/2012INDEX NO. 157500/2012
`
`FILED: NEW YORK COUNTY CLERK 11/13/2017 03:06 PMFILED: NEW YORK COUNTY CLERK 11/16/2017 01:35 PM
`
`
`
`
`
`
`
`NYSCEF DOC. NO. 108
`R«C«IV«D NYSCEF: 11/18/2017
`
`NYSCEF DOC. NO. 106NYSCEF DOC. NO. 112
`
`RECEIVED NYSCEF: 11/13/2017RECEIVED NYSCEF: 11/16/2017
`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/OSC. — 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.
`
`Page 1 of11
`l of 11
`1 of 11
`
`

`

`
`
`INDEX NO. 157500/2012INDEX NO. 157500/2012
`
`FILED: NEW YORK COUNTY CLERK 11/13/2017 03:06 PMFILED: NEW YORK COUNTY CLERK 11/16/2017 01:35 PM
`
`F:ILED NEW YORK COUNTY CLERKW11
`
`
`
`
`
`NYSC.
`3F DOC. NO.
`1mg
`C«IV«.D NYSCEF: 11/18/2017
`
`NYSCEF DOC. NO. 106NYSCEF DOC. NO. 112
`
`RECEIVED NYSCEF: 11/13/2017RECEIVED NYSCEF: 11/16/2017
`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 A11. 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., Exi 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).
`
`2Pag§2 ffl11
`2 of 11
`
`

`

` F:ILED NEW YORK COUNTY CLERKM11
`
`INDEX NO. 157500/2012INDEX NO. 157500/2012
`
`FILED: NEW YORK COUNTY CLERK 11/13/2017 03:06 PMFILED: NEW YORK COUNTY CLERK 11/16/2017 01:35 PM
`
`
`
`
`
`
`
`NYSC.
`3F DOC. NO.
`1ma
`C«IV«.D NYSCEF: 11/18/2017
`
`NYSCEF DOC. NO. 106NYSCEF DOC. NO. 112
`
`RECEIVED NYSCEF: 11/13/2017RECEIVED NYSCEF: 11/16/2017
`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 happens1n 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
`Page3ot 11
`3 Of 11
`3 of 11
`
`

`

`
`INDEX NO. 157500/2012INDEX NO. 157500/2012
`
`FILED: NEW YORK COUNTY CLERK 11/13/2017 03:06 PMFILED: NEW YORK COUNTY CLERK 11/16/2017 01:35 PM
` FILED: NEW YORK COUNTY CLERK '11m2
`
`
`
`
`
`NYSC:
`
`NYSCEF DOC. NO. 106NYSCEF DOC. NO. 112
`
`RECEIVED NYSCEF: 11/13/2017RECEIVED NYSCEF: 11/16/2017
`3F DOC. NO.
`1ma
`. R«C«IV«D NYSCEF: 11/18/2017
`.
`.
`.. 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
`Is 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-IO7. Accordingly. the court has only considered the is-
`sue of vacating thejury‘s verdict as framed by defendant’s cross motion.
`
`4 P381?“ T111
`4 of 11
`
`

`

`
`INDEX NO. 157500/2012INDEX NO. 157500/2012
`
`FILED: NEW YORK COUNTY CLERK 11/13/2017 03:06 PMFILED: NEW YORK COUNTY CLERK 11/16/2017 01:35 PM
`
`
` 'IFLED: NEW YO’ COUNTY CLERKm112
`
`
`
`
`
`
`3F DOC. NO.
`lma
`C«IV«.D NYSC.3FFz-ll/lB/2017
`
`NYSCEF DOC. NO. 106NYSCEF DOC. NO. 112
`
`RECEIVED NYSCEF: 11/13/2017RECEIVED NYSCEF: 11/16/2017
`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 rightsin 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 (1SI
`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.
`
`5 P%¥%5 ill“
`5 of 11
`
`

`

`
`
`INDEX NO. 157500/2012INDEX NO. 157500/2012
`
`FILED: NEW YORK COUNTY CLERK 11/13/2017 03:06 PMFILED: NEW YORK COUNTY CLERK 11/16/2017 01:35 PM
`
`
`
`
`NYSC.
`3F DOC. No.108
`C«.IV«D NYSCEF: 11/18/2017
`
`NYSCEF DOC. NO. 106NYSCEF DOC. NO. 112
`
`RECEIVED NYSCEF: 11/13/2017RECEIVED NYSCEF: 11/16/2017
`
`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).
`
`Page60f11
`6 of 11
`6 of 11
`
`

`

`
`INDEX NO. 157500/2012INDEX NO. 157500/2012
`
`FILED: NEW YORK COUNTY CLERK 11/13/2017 03:06 PMFILED: NEW YORK COUNTY CLERK 11/16/2017 01:35 PM
`
` F:ILED NEW YORK COUNTY CLERKm112
`
`
`
`
`
`
`3F DOC. NO.
`1mg
`C«.IV«.D NYSCEF: 11/18/2017
`
`NYSCEF DOC. NO. 106NYSCEF DOC. NO. 112
`
`RECEIVED NYSCEF: 11/13/2017RECEIVED NYSCEF: 11/16/2017
`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 Servs., 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..2-6)
`
`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.
`
`Pogf 7ff111
`7 of 11
`
`

`

`FI:LED NEW YORK COUNTY CLERK 11m 23‘
`
`INDEX NO. 157500/2012INDEX NO. 157500/2012
`
`FILED: NEW YORK COUNTY CLERK 11/13/2017 03:06 PMFILED: NEW YORK COUNTY CLERK 11/16/2017 01:35 PM
`
`
`
`
`
`NYSC.
`3F DOC. NO.
`1mg
`C«IV«.D NYSCEF: 11/18/2017
`
`NYSCEF DOC. NO. 106NYSCEF DOC. NO. 112
`
`RECEIVED NYSCEF: 11/13/2017RECEIVED NYSCEF: 11/16/2017
`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

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge
throbber

Still Working On It

This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.

Give it another minute or two to complete, and then try the refresh button.

throbber

A few More Minutes ... Still Working

It can take up to 5 minutes for us to download a document if the court servers are running slowly.

Thank you for your continued patience.

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Your document is on its way!

If you do not receive the document in five minutes, contact support at support@docketalarm.com.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket