Celebrating One Elevator, Suing for Hundreds More

By Arthur Z. Schwartz

The NYC subway system doesn’t do the greatest job serving the public. Trains are late, trains are broken with no A/C, stations are dirty, and one third of people jump the turnstiles. But if you have a disability – use a wheelchair, walk with a walker or a cane, if you are blind, or are just getting to old to do the stairs, much of the subway is inaccessible. Less than 25% of the nearly 450 subway stations in NYC have elevators. That means that 340 subway stations are not accessible to people with disabilities, or older New Yorkers. Their alternative is a dysfunctional Access-a-Ride paratransit system, which requires 24 hour notice of a trip, or using an accessible taxi, which costs a lot more.

Access to the subway system is particularly critical for people with mobility or visual disabilities because most of them do not own, or cannot operate cars and cannot rely on ridesharing systems, which have limited accessibility options, and because of the lack of the ability of the Respondents’ paratransit system, called Access-a-Ride to provide transportation in a manner which even approaches that offered by the subway system..

The Metropolitan Transportation Authority, and its subsidiary, the NYC Transit Authority, routinely deny this critical service to hundreds of thousands of New Yorkers with mobility disabilities. Residents and visitors with mobility disabilities, visual disabilities or other disabilities affecting a person’s ability to use stairs are barred, limited, and deterred from equal use of, in the words of former MTA Chairperson and CEO Thomas F. Prendergast, “…the most efficient way to get around town.”

MTA and NYC Transit’s failures in this regard generally violate the anti-discrimination requirements of the New York City Human Rights Law (NYCHRL), the very purpose of which is to “eliminate and prevent discrimination from playing any role in actions relating to employment, public accommodations and housing and other real estate, and to take other actions against prejudice, intolerance, bigotry, discrimination and bias-related violence or harassment.” See N.Y.C. Admin. Code § 8-102. In fact, the NYCHRL requires entities that operate public transportation systems in the City to take affirmative steps to ensure that their programs and services are accessible to people with mobility disabilities. See N.Y.C. Admin. Code § 8-107(4)(a) et seq. The anti-discrimination protections that the NYCHRL provides to people with disabilities are independent from and in addition to the anti-discrimination protections provided by federal and state laws. See N.Y.C. Admin. Code § 8-130.

The NYCHRL’s goal of eliminating discrimination, and to guarantee equal citizenship is violated if people with disabilities cannot utilize the subway system on an equal basis as the millions of other residents and visitors do.

Litigation in 2019 Wins Seven New Elevators on 14th Street

In 2018 the City of New York decided to turn 14th Street into a “Busway.” In conjunction with that project, the MTA announce that it was going to renovate all of the subway stations on 14th Street. Those stations run from 1st Avenue to 8th Avenue, and intersect with just about every major subway line in Manhattan. In 2018 there was elevator service at Union Square, and a never working, urine smelling elevator at 8th Avenue. But the MTA plan was only going to add one new elevator, at 1st Avenue and 14th Street. What the MTA planned violated the Americans With Disabilities Act, so the 504 Democratic Club and a group of wheelchair users sued the MTA.

The MTA agreed to settle almost right away. We (I was plaintiffs’ lawyer) agreed to the installation of three elevators, both at 6th Avenue, one for the L Train and two for the F Train. Work was supposed to start by December 2020. Of course it didn’t. To resolve things, the MTA offered to install two more elevators at 7th Avenue (for the 1.2.and 3 train), and to upgrade the 8th Avenue elevator. They conditioned the agreement on freeing up some unused federal funds. We called Senator “Chuck” Schumer, and he got the funds shifted. We celebrated in April 2021.

Somehow, it took until September 2024 for the first of these elevators to become operative on the corner of 14th and 6th. On September 29, the Center for the Independence of the Disabled, NY (CIDNY) and the 504 Democratic Club held a ribbon cutting, attended by Public Advocate Jumaane Williams and City Comptroller Brad Lander.

New Litigation

But that same event also saw the announcement of a new lawsuit vs. the MTA and NY City Transit over the stalling of elevator installation which was part of the 2024 MTA Capital Budget. 23 elevator projects which had been started were shut down on June 26 by the MTA Board.

CIDNY was part of an earlier litigation where they believed that they had won a commitment from Respondents MTA and NYC Transit, in a lawsuit titled, Forsee v. Metropolitan Transportation Authority, and a second lawsuit titled Center for the Independence of the Disabled v. Metropolitan Transportation Authority, to make 95% of NY City’s subway stations accessible via elevators by the year 2055. That agreement, however, reflected potential levels of annual funding in the MTA’s Capital Plan, but did not envision a year when there would be no capital funds made available for the elevator project. The MTA and NYCTA entered into the Forsee settlement agreement with the assumption, based on laws passed by the NY State Legislature, and signed into law, that Congestion Pricing would provide the capital funds necessary for this 33-year project. Nevertheless, knowing that voting to cancel all accessibility projects, because of the “pause” in Congestion Pricing funding, undercut the essence, if not the actual terms of the promises made in Forsee and CIDNY, went ahead with approving a freeze on all accessibility capital projects on June 26, 2024 without any plan for even a discussion about an alternative means of financing the promised accessibility projects, and immediately ceased work on elevator installation projects which had been commenced as a result of the Capital Plan in effect prior to June 26, 2024.

A sizeable share of the capital funds which were going to be made available due to Congestion Pricing was slated to go to elevator modernization. The cut in capital funding caused by the Congestion Pricing pause, and the MTA Board vote on June 26, 2024 has eliminated, (not just reduced; totally eliminated) that planned use. Like with elevator installation, the principal impact in the cut in elevator modernization funds is felt by people with disabilities.

According to the NYC Department of Transportation’s most recent Mobility Survey (Exhibit F at page 57) the most common transit mode used by New Yorkers in 2022 is the subway, used for 71% of weekday transit trips. About one-quarter (24%) of weekday transit trips are made using buses.

People with disabilities suffer severe consequences from pervasive exclusion from the New York City subway system. According to the city’s Mobility Survey only 5% of people with disabilities use the subways, and 8% use buses.

Access to public transportation is especially vital for people with disabilities. But on June 26, 2024 the MTA board declared accessibility a “low priority.”

The New York City subway system’s woeful level of station accessibility is even more striking when compared to the rates of station accessibility in other major metropolitan areas. Indeed, the New York City subway system’s level of station accessibility is the lowest among the ten largest metropolitan transit systems in the U.S. The Washington D.C. and San Francisco Bay Area transit systems have 100% station accessibility. The accessibility rate in Boston is at 74%; Philadelphia is at 68%; and Chicago is at 67%, compared to New York’s 24%.

In the time period since their first capital program, authorized in 1982, MTA and NYC Transit spent more than $150 billion on the New York City subway system. Their current revised capital program budget totals $55.4 billion.

But despite this massive spending, MTA failed, prior to 2022, to formulate a comprehensive plan to make the majority of subway stations vertically accessible for people with mobility disabilities or other disabilities affecting the ability to use stairs until they entered into the Forsee/CIDNY settlement. That settlement was designed to launch a 30-year program of elevator installation. However, when the MTA Board approved the Congestion Pricing Pause, and put all ongoing elevator installation on pause, declared all accessibility “low priority,” its action meant that the New York City subway system would remain overwhelmingly inaccessible to people with disabilities in perpetuity.

So, on September 30, CIDNY and the 504 Democratic Club brought suit again, assailing the decision to make capital spending on accessibility projects. Hopefully, coupled with the lawsuits to get Congestion Pricing reinstated, the plan to make our subways accessible will get back on track.