79 A.D.2d 516 | N.Y. App. Div. | 1980
Lead Opinion
Order, Supreme Court, New York County, entered March 17, 1980, denying defendants’ motions to dismiss the. complaint insofar as it alleged violations of subdivision 9 of section 292 and section 296 (subd 2, par [a]) of the Executive Law, modified, on the law, by declaring that the defendants have not engaged in unlawful discriminatory practices in violation of those statutes, and, as modified, affirmed, without costs. Plaintiff Eastern Paralyzed Veterans Association is a not-for-profit corporation with a membership of disabled veterans, plaintiff Peters is the association’s executive director. Plaintiffs seek both declaratory and injunctive relief on the theory that the defendants had engaged in unlawful discriminatory practices in violation of subdivision 9 of section 292 and section 296 (subd 2, par [a]) of the Executive Law. Specifically, the plaintiffs allege that the defendants have unlawfully failed to buy buses and to construct terminals which provide access to wheelchair-bound and semiambulatory persons. Special Term, relying upon recent Federal legislation and case law, denied defendants’ motions to dismiss. That
Dissenting Opinion
dissent in a memorandum by Kupferman, J., as follows: Plaintiffs-respondents allege that the failure of defendants-appellants after September 1, 1974 to make public accommodations more accessible to physically disabled persons constituted unlawful discriminatory practices in violation of subdivision 9 of section 292 and section 296 (subd 2, par [a]) of the Executive Law. Those sections, when read together, prohibit the withholding or denial to disabled persons of any of the accommodations, advantages, facilities or privileges of, inter alia, all public conveyances as well as the stations and terminals thereof. In the memorandum prepared upon approval of this legislation, then Governor Malcolm Wilson stated that he recognized that “unavoidable architectural barriers in * * * places of public accommodation * * * may be such that their presence may, in a sense, result in ‘withholding from’ a disabled person the advantages of a particular activity under the Human Rights Law”, but he went on to emphasize that the legislative intent was “to allow a disabled individual to enjoy that which he is otherwise capable of enjoying, notwithstanding the fact that some architectural barriers exist which make enjoyment impossible.” He then made special reference to new provisions of law to eliminate architectural barriers in new and rehabilitated places of public accommodation. (NY Legis Ann, 1974, p 415.) Plaintiffs specifically contend that, since the effective date of this law, September 1, 1974, until the