Matter of Cauwels v New York city Tr.
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Matter of Cauwels v New York city Tr. 2013 NY Slip Op 31168(U) May 28, 2013 Supreme Court, New York County Docket Number: 400356/13 Judge: Donna M. Mills Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON 513112013 [* 1] SUPREME C101JKT OF PRESENT : __ . . In h c A4oticr of ihe Application qf GAIL (.I UWELS, Petitioner, 1,aw and Rules -again st - The l'ollowiiig papers, iiiiiiibere r*** a ~* Notice o f MotioidOrder lo Show Cause-Affidavits- Exhibits ... Answering AiGdavits- Exhibits " . - _ I ?, 5 Replying Allidavits C K 0 SS- M C I T I O N : I 3;,3 -~ .~ YES - - L A -."x- ) Upon the [oregoing papers, it is ordered that this motion is: IIKC1I)ED IN ACCOKDANCE WJ'I'II AI"I'AClJE13 OlWBIi. -#2bBL- Dated: Check one: / DONNA MfhkLS, J.S.C. b'INAI, [IISPOSI'I'JON NON-FINAL, IIISPOSITTON [* 2] Petitioner, For a Judgment Pursuant to CPLR Article 78 -against- Index No. 400356113 NEW YORK CITY TRANSIT, an agency of In this special proceeding pursuant to C.P.L.R. Article 78, petitioner Gail -. .. Cauwels ( Petitioner ) seeks to annul, vacate and set aside the determination of respondent New York City Transit ( NYCT or Respondent ) which denied her application for paratransit services (Access-A-Ride); and an order directing the NYCT to grant Petitioner Access-A-Ride services effective as of the date of its filing. Petitioner is a 48 year old woman with chronic vertigo arthritis, and a history of breast cancer. Petitioner first applied for Access-A-Ride services on June 30, 201 1. In her application, Petitioner claimed that she suffered from unpredictable vertigo. Petitioner also indicated that she was currently using the subway and bus for travel and that she was registered with the MTA Reduced-Fare Metrocard program. She further stated that her disability was permanent and that she sometimes used a cane and also the assistance of a friend or family member. In support of her application, Petitioner also submitted letters from her doctors, including a letter from her medical doctor at [* 3] Sloan-Kettering Cancer Center and her primary physician, indicating that she had recently been diagnosed with cancer, and would be receiving treatments at Sloan Kettering Hospital. As a result of her condition vertigo, the upcoming radiation, and the need for her to travel to her appointments, both doctors recommended that Petitioner be accepted for Access-A-Ride services. On July 26, 201 1, Petitioner appeared for her eligibility assessment at the Access Community Health Center, where she underwent functional testing and an interview At her assessment, Petitioner indicated to the licensed medical professional, Occupational Therapist Ruth Laube, inter alia, that she had breast cancer and would be starting radiation treatment and she also stated that she had limitations in climbing subway steps and riding escalators. At the end of her written report, Ms. Laube recommended that Petitioner be granted temporary full eligibility for 12 months just for the treatment of her cancer. The NYCT eligibility staff granted Ms. Cauwels temporary full eligibility for 12 months. Once Petitioner s temporary eligibility expired around one year later, Petitioner had to reapply to be re-certified for the services, which included coming in for an assessment/interview. On August 8, 2012, Petitioner re-applied for Access-A-Ride services. In her application, Petitioner indicated that the time it took her to get to the nearest transit bus stop or subway station, the frequency of her travels on public transit and her ability to navigate the system depended on her vertigo and how it was affecting her in the moment. She also wrote that she occasionally uses the subway and sometimes has a family member assist her when she travels. In support of her application, petitioner also submitted two letters from her -2- [* 4] doctors, Anthony Jahn, M.D. and Cathy Caron, M.D. recommending that she be approved for Access-A-Ride service based on her condition of vertigo. On August 16, 2012, Petitioner appeared in person for a functional assessment and evaluationlinterview, wherein Licenced Practical Nurse, Jeffrey Bourisquot, evaluated her. At the interview, Mr. Bourisquot noted that Petitioner had chronic episodic vertigo and arthritis and a history of breast cancer. At her functional test, Petitioner was observed to be able to climb bus steps with limitations, walk 2-3 city blocks in 3 minutes, cross a multi-lane intersection in a safe and timely manner, use the fare box, sit with ease, hold onto overhead support rails, use the stop requester and determine destination signs. Mr. Bourisquot recommended temporary full eligibility of Access-A-Ride service for 12 months based on the applicant s condition. On September 25, 2012, the Transit Authority issued a letter denying Petitioner s eligibility for Access-A-Ride Services. The letter indicated that based on the review of the application, supporting medical documentation and in-person functional assessment, the Transit Authority determined that Petitioner did not show that she was unable to use regular fixed-route bus and subway service. The Transit Authority pointed out that at her functional assessment, she demonstrated that she was able to perform all of the necessary tasks associated with independent travel on fixed-route service, which included, inter alia, walking city blocks, getting on, riding and exiting the bus and subway and exhibiting a functional gait. Petitioner appealed the denial to the NYCT Appeals Board. Upon reviewing her application, the prior evaluations, and her submitted medical documentation, the -3- [* 5] Appeals Board determined that Petitioner had not demonstrated that her medical conditionldisability prevented travel on the bus/subway. Petitioner was notified by letter dated October 24, 2012, that the Board was upholding the decision denying her Access-A-Ride services, since she did not demonstrate that her medical condition/disability prevented her from taking the bus or subway. The letter to Petitioner noted that the medical information submitted provided only general information or a diagnosis and failed to support her claim that her medical condition or disability prevented her from traveling on buses and subways. Further, the letter noted that the functional assessment indicated that the Petitioner was able to walk well without using an assistive device, navigate stairs on the bus, and perform other tasks associated with the use of buses and subways. In assessing Petitioner s appeal, Dr. Louise Doniyan, M.D. a member of the Appeals Board explained that she carefully reviewed the entire file, including petitioner s 201 1 and 2012 applications, her functional assessments, the supporting medical documentation submitted, and that in her professional opinion as a medical doctor, Petitioner, on the whole, could use public transit. Consequently, Petitioner commended this CPLR Article 78 proceeding seeking such relief as would provide her with round-trip Access-A-Ride transportation to and from her home and her various medical providers. The Americans with Disabilities Act ( ADA ) requires that, for an individual to be considered paratransit eligible, the applicant must be found to be unable, as a result of a[n] . . . impairment, and without the assistance of another individual . . ., to board, ride, or disembark from any vehicle on the system which is readily accessible to and usable -4- [* 6] by individuals with disabilities (49 CFR ยง 37.123 [e] [I]). An applicant is ineligible when the applicant s disabilities do not make the individual unable to or prevent him from using transportation services available to those without disabilities (see, 49 CFR 3 37.123 [e] [3] [ I I). An eligibility determination is predicated upon whether an applicant is able to travel on the general public fixed-route system (i,e ,subways, buses), and not upon whether an individual has a disability. Pursuant to the ADA, transit agencies devise the specifics of their individual eligibility processes (see generally, 49 CFR 3s 27, 37). The ADA regulations set only broad requirements that all agencies must incorporate (ibid.). Respondent NYCT has responsibility for running the day-to-day operations of Access-A-Ride services within the City of New York. NYCT determines which persons with disabilities are eligible for Access-A-Ride services, as required by federal regulations. Eligibility may be with unconditional (full unrestricted use), conditional (partial, restricted use) or denied in all respects. The NYCT uses a two-prong criterion to determine one s eligibility predicated upon establishing an applicant s disability and hidher inability to make use of fixed public transportation services. This is an Article 78 proceeding, and as such, the applicable standard of review is whether the administrative decision was: ( I ) made in violation of lawful procedure; (2) affected by an error of law; or (3) arbitrary or capricious or an abuse of discretion, An including whether the penalty imposed was an abuse of discretion (CPLR 7803 [3]). agency abuses its exercise of discretion if its administrative orders lack a rational basis. [Tlhe proper test is whether there is a rational basis for the administrative orders, the review not being of determinations made after quasi-judicial hearings required by -5- [* 7] statute or law (Mater-of Pel1 v Board of Educ. Of Union Free School Dist. No. 1 of Towns of Scarsdale 8 Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974]). The court has only a review function and not original jurisdiction to second guess the decision of the administrative agency (Matter of Rocco v Matter of Police Pension Fund, Art. II, 98 AD2d 609 [Ist Dept 19831). Upon such review, this Court is compelled to conclude that the contested determination of the NYCT was not made in violation of lawful procedure, was not affected by error of law and was not arbitrary and capricious or an abuse of discretion (CPLR 7803 [3]). In this case, the NYCT appeals board acted upon a sound basis in reason and with regard to the facts when it considered the documentary and testimonial record consisting of submissions from Petitioner (applications, medical records, and verbal assertions) and the NYCT (Nurse s assessment). The NYCT confirmed Petitioner s disability as indicated by her application, medical record and testimony, and determined her ineligibility since she performed the tasks necessary for her to utilize the general public fixed route transportation system. The NYCT Appeals Board appropriately proceeded in a manner consistent with the relevant ADA directives, as the rightful agency responsible for determining the propriety of the complained of eligibility denial. As a result, Ms. Cauwels s petition must be denied in all respects. However, this decision neither precludes Petitioner from filing a subsequent Access-A-Ride eligibility application with the NYCT from revisiting, upon recertification, the complained of eligibility denial at issue in this proceeding. -6- [* 8] Accordingly it is .r.s.c. -7-
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