Disabilities Act Prompts Flood of Suits Some Cite as Unfair
A small cadre of lawyers, some from out of state, are using New York City’s age and architectural quirkiness as the foundation for a flood of lawsuits citing violations of the Americans With Disabilities Act.
The lawyers are generally not acting on existing complaints from people with disabilities. Instead, they identify local businesses, like bagel shops and delis, that are not in compliance with the law, and then aggressively recruit plaintiffs from advocacy groups for people with disabilities.
The plaintiffs typically collect $500 for each suit, and each plaintiff can be used several times over. The lawyers, meanwhile, make several thousands of dollars, because the civil rights law entitles them to legal fees from the noncompliant businesses.
The practice has set off a debate about whether the lawsuits are a laudable effort, because they force businesses to make physical improvements to comply with the disabilities act, or simply a form of ambulance-chasing, with no one actually having been injured.
The suits may claim a host of problems: at a deli grocery in West Harlem, an overly steep ramp without guardrails, high shelves and a narrowing pathway near the refrigerators; at a yogurt shop in the theater district, no ramp, no bathroom doorknob that can be opened with a closed fist and exposed hot water drains under the bathroom sink; at a flower shop on the Upper East Side, no ramp and shelves that are too high.
All of those suits were filed by Ben-Zion Bradley Weitz, a lawyer based in Florida, who has a regular group of people with disabilities from whom he selects plaintiffs. One of them, Todd Kreisler, a man in a wheelchair who lives on the East Side of Manhattan, sued 19 businesses over 16 months — a Chinese restaurant, a liquor store and a sandwich shop among them.
The results of the suits were almost immediate: workers grabbed their hammers, installing new ramps, lowering counters and shelves and making businesses more accessible to people with disabilities. And as a product of the litigation, the businesses had to pay thousands of dollars in legal fees to Mr. Weitz and his associates.
Mr. Weitz is leading the charge into New York’s courtrooms. Since October 2009, he has sued almost 200 businesses in the state, mostly in Federal District Court in Manhattan. He has eight years of experience filing these suits in Florida, where his practice does not seem to be lagging. Two weeks ago, he brought claims against four Tampa businesses — a strip mall, a convenience store, a bar and a print shop.
Another lawyer with a thriving practice, Martin J. Coleman of Long Island, has filed almost 130 cases in the Eastern District of New York. Mr. Coleman said he was aware the lawsuits had drawn criticism.
“Folks go out there and say, ‘I’m mad at the plaintiffs,’ and ‘I see the same names,’ and ‘Let’s go bash the plaintiffs’ attorneys,’ “ Mr. Coleman said. “I don’t mind that, but the law has been there, don’t kid yourself.”
“As a private attorney, every lawsuit that I file is to make money, because that’s how I make a living,” he added. “And in that regard, I’m no different than any other private attorney.”
Few, if any, cases have gone to trial, according to a review of electronic court records; the defendants usually agree to settle, often in less than six months, closing the cases at a breakneck pace for federal court.
Suit by suit, the lawyers are forcing this tough and intensely pedestrian city, so resistant to change, to meet standards for accessibility that are more than 20 years old. In doing so, they are part of a nationwide trend: In the last year, 3,000 similar suits, including more than 300 in New York, were brought under the Americans With Disabilities Act, more than double the number five years ago. Most of the cases involve claims against businesses filed by nonemployees.
Lawmakers and federal judges have questioned the practice, contending that the lawyers are only interested in generating legal fees; they say the lawyers typically do not give the businesses a chance to remedy the problem before filing suit. Those who defend the lawsuits say the means are justified to bring more businesses into compliance.
Because the settlements are invariably bound by confidentiality agreements, it is impossible to calculate the precise amount lawyers earn in total. One defense lawyer said his client had paid Mr. Weitz and the lawyers who worked with him $6,000 in legal fees. At that rate, Mr. Weitz would take in more than $600,000 for the 106 cases he has closed in New York.
The Americans With Disabilities Act of 1990 prohibits discrimination by private entities that are open to the public. When Congress was considering the law, advocates for people with disabilities wanted to be able to sue for damages. But Congress allowed litigants to sue only for injunctive relief, or court-ordered remedies to the problems that were raised in lawsuits.
As a compromise for disabled plaintiffs, Congress also awarded fees to the lawyers that bring their discrimination cases.
Ruth Colker, a law professor at The Ohio State University, who specializes in disability law, said the lawsuits were an effective enforcement strategy. “It would be really be impossible for people to find a lawyer if there was no way for lawyers to get paid,” she said.
In Florida, editorial boards, lawmakers and federal judges have long argued against the practice. In 2004, Judge Gregory A. Presnell of Federal District Court in Orlando said in a written opinion in favor of a business owner: “Plaintiff’s testimony left the distinct impression that he is merely a professional pawn in an ongoing scheme to bilk attorney’s fees from defendant.”
Former Representative Mark Foley of Florida regularly introduced legislation to amend the Americans With Disabilities Act to require that business owners receive 90 days notice before being sued. Similar legislation is pending now.
Mr. Weitz, described on his firm’s Web site as an “advocate for the disabled community,” filed cases in New York with a local lawyer at first, but then on his own after his admission to the state bar in 2010. He did not return calls seeking comment.
Mr. Weitz’s use of Mr. Kreisler was not unique. Zoltan Hirsch, a double leg amputee, was represented by Mr. Weitz in 143 suits, filing as many as nine suits on a single day. Maryann Santiago filed six suits. Carr Massi, who uses a wheelchair, sued five businesses in Manhattan.
Ms. Massi said she learned about Mr. Weitz’s efforts at a meeting of Disabled in Action, an advocacy group in New York. “He gave a presentation about access and stuff,” she recalled.
“Let’s give it a shot,” she said she thought to herself. “Stop complaining and do something about it.”
Asked if she ever patronized the businesses she sued after they made improvements, Ms. Massi said, “Unfortunately, no.”
While the disabled plaintiffs cannot collect damages under the disabilities act, they are entitled to receive awards as long as they also sue under city or state human rights law.
Local business owners, who say they are often sued without warning, call the suits shakedowns, invariably signing settlement agreements with strict confidentiality requirements.
“All they want is money; they get the money, and they move on to the next target,” said Ming Hai, a Queens lawyer who has defended businesses from the suits. “It has become a profession to go out and look for a little problem here and there.”
Ms. Massi did not agree with critics of the aggressive litigation by Mr. Weitz. “He is fighting for something he believes in, and if he gets a few bucks, why not?” she said. “I feel like whatever he is doing I am benefiting from it and other wheelchair users are benefiting from it.”