Sheppard Mullin Aids Deal On Accessible NY Subway Stations

By Matt Perez | July 8, 2022, 8:02 PM EDT ·

Sheppard Mullin Richter & Hampton LLP's pro bono partner recently played a key role in negotiating what could be a landmark settlement to guarantee more accessible subway stations in New York — the latest in a series of disability rights wins for the attorney.

Dan Brown's legal career has been centered around attaining accessibility rights for people with disabilities, a personal goal that stretches back to his first year as an attorney. In the late '90s, the attorney, whose brother uses a wheelchair, worked on a lawsuit brought under the Americans With Disabilities Act that spurred the New York City Marathon to open a wheelchair division.

"That sort of led me ultimately to my passion for disability work and pro bono, and now I'm the pro bono partner at Sheppard Mullin," he told Law360 Pulse.

In the interim between that first win and this latest victory, Brown picked up numerous other wins for disability rights in New York City during his two-decade-long career.

In 2013, Brown worked on a case that eventually went to trial regarding the city's emergency preparedness for people with disabilities. Representing a class of 900,000 residents with disabilities, Brown secured a win that led to a comprehensive disaster plan.

Also that year, Brown was involved in negotiating a settlement in a separate case that resulted in at least half of the city's yellow taxis becoming wheelchair accessible; only 1.8% were accessible before the case.

Late last month, Brown and his co-counsel, Disability Rights Advocates, a nonprofit legal center in California and New York, secured a settlement with New York's Metropolitan Transit Authority to make nearly all of the city's 364 currently inaccessible subway stations — which make up more than 75% of its total — accessible to people with disabilities.

"Hopefully they'll get even better," Brown said. "I do think they were perhaps neglectful over the years in recognizing this issue and they're doing better now."

The fight for accessibility within the MTA system dates back to the late '80s. According to Brown, the subway system was given somewhat of a carveout in the ADA, which required 100 accessible stations by 2020. At the time, advocates felt good about the plan.

"Roll the tape forward to where we are now and I think, certainly disability rights advocates but most people would agree, that ... less than 25% accessibility is unacceptable," Brown said.

Brown and his co-counsel filed two class actions: one in 2017 alleging that the MTA and city violated the New York City Human Rights Law with its inaccessible system, and another in 2019 claiming that the stations are renovated without adding stair-free access, violating the ADA. The June settlement resolved both suits.

The litigation rested on the risky argument that the MTA and the city's actions — or inaction — violated the New York City Human Rights Law. Brown acknowledged that even some legal experts were skeptical the court would find the MTA liable under the law. However, the state court backed the plaintiffs in 2019 and refused to grant a motion to dismiss, which was appealed by the MTA and city.

According to Brown, the "turning point" of the case came in 2020, when the Appellate Division affirmed the decision. Following a subsequent year of negotiations, the two sides reached the settlement agreement.

If approved by the court, the deal will see the MTA dedicate 14.69% of its five-year Capital Plan budgets to station accessibility, while also ensuring that stations will be accessible as part of renovation and rehabilitation projects. The current plan, which runs through 2024, includes 81 stations up for accessibility changes, followed by 85 more by 2035, 90 more by 2045 and a final 90 by 2055.

"Never before has there been an obligation to make these subways accessible, and we now have a firm commitment to make that happen," Brown said.

Representatives for the MTA and city could not immediately be reached for comment for this story. Both groups, however, applauded the deal when it was announced in June.

"This is a seminal moment for accessibility in the New York City transit system," MTA Chief Accessibility Officer Quemuel Arroyo said in a press release announcing the settlement. "For far too long, the MTA and accessibility advocates have appeared at odds over a goal that we in fact share, making the transit system fully accessible. This settlement is not just the unveiling of a gameplan, but the start of a closer collaboration between the MTA and advocates to achieve our shared goal, to ensure that everyone has the ability to ride mass transit without needing to plan around accessible stations." 

New York Gov. Kathy Hochul called the deal "a critical step towards further expanding accessibility in our subways and serving the needs of New Yorkers with disabilities."

"My administration will continue to ensure that New York State is accessible for all," Hochul added.

Reflecting on the differences between fighting for accessibility rights earlier in his career and now, Brown noted that there's a greater recognition by the courts and adversaries of the present issues, but "unfortunately what has not changed is that litigation is often required to make things happen."

"I believe and hope there's been a change in attitude there, but I also think no question, advocacy and lawsuits helped make this happen," he said.

--Editing by Alanna Weissman and Marygrace Anderson.

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