Pickman v. Dole

671 F. Supp. 982, 1987 U.S. Dist. LEXIS 9330
CourtDistrict Court, S.D. New York
DecidedOctober 14, 1987
Docket84 Civ. 2693 (RJW)
StatusPublished
Cited by9 cases

This text of 671 F. Supp. 982 (Pickman v. Dole) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pickman v. Dole, 671 F. Supp. 982, 1987 U.S. Dist. LEXIS 9330 (S.D.N.Y. 1987).

Opinion

OPINION

ROBERT J. WARD, District Judge.

William A. Pickman, who is blind, and the Greater New York Council of the Blind (“plaintiffs”) brought this action against federal, state and local officials seeking an injunction requiring the installation of in-tercar safety barriers on subway cars operated by the New York City Transit Authority (“NYCTA”) and by the Staten Island Rapid Transit Operating Authority (“SIR-TOA”). The parties settled the case after the defendants agreed to a timetable for completing installation of the barriers. Plaintiffs then filed this motion for attorneys’ fees and costs. For the reasons set forth below, the Court holds that plaintiffs are prevailing parties in this action and entitled to reasonable attorney’s fees.

*984 BACKGROUND

The controversy involving intercar safety barriers for R-44 and R-46 subway cars has a long and troubled history. Defendants first purchased the R-44 and R-46 subway cars in 1971, and through 1984, had put 1106 of these cars into service. Earlier cars had been equipped with panto-graphic gates extending between them. 1 The R-44 and R-46 cars were longer than the earlier cars, seventy five feet instead of sixty feet. The increased length of the cars led to added stress around curves, so that the old-style pantographic gates could not be fitted on the new cars. The cars were put in service without any safety barriers.

A blind person traveling on the subway commonly assists himself or herself with a cane. When a subway train lacks intercar safety barriers, a blind person attempting to board a train from a station platform could mistakenly perceive the empty space between two cars to be an open door into a waiting car. Beginning in 1971, after the R-44 and R-46 cars were put into service, through 1984, when these cars were equipped with safety barriers, there were at least six incidents when a blind person fell onto the subway tracks between cars while attempting to board a train. These incidents resulted in four deaths and one case of serious injury, where the victim lost three limbs. The sixth person was rescued by a bystander before the train pulled out of the station.

After the first of these incidents in 1971, advocates for the blind demanded that subway trains be equipped with intercar safety barriers. 2 In 1974, after the second incident, representatives of the blind met with transit officials, and received from them a commitment to develop and install an inter-car safety barrier on the R-44 and R-46 cars. Irwin Cohen, manager of the car overhaul program for the NYCTA, testified at an evidentiary hearing before this Court that a safety barrier for R-44 and R-46 cars was designed in 1976, prototypes were tested and approved, and material was ordered to outfit the entire fleet. However, just when the material arrived, cracks appeared in the fiberglass bonnet of the prototype cars due to stress, forcing the NYC-TA to abandon the design. Transcript of July 26, 1985 Evidentiary Hearing (“Tr.”) at 30-81. Defendants intended with this testimony to explain the assurances given by the NYCTA chairman in 1977 to the blind community that materials would be ordered “as quickly as possible,” that the gates would be installed within six months after the NYCTA received the materials, and that installation of the gates on the R-44 and R-46 cars was in progress. Plaintiffs’ Exhibits 3, 4.

After the abandonment of the gate design, the NYCTA evaluated several designs, but none were considered acceptable. Tr. at 32. In 1982, the NYCTA hired outside consultants, who by early in 1983 had developed a design for a spring-type barrier for the R-44 and R-46 fleet. Tr. at 32-34. 3 A prototype of the spring design was installed and tested in 1983, and certain modifications were made at the end of that year. Tr. at 35-36.

These developments were reported to the blind community in a letter dated September 16, 1983 from Mr. John Nelson, Vice President of External Affairs for the NYC-TA. Mr. Nelson wrote that a prototype train outfitted with an assortment of experimental intercar safety barriers would be available for inspection on October 1, 1983. Tests would be conducted during the *985 month of October, after which procurement and production of the barriers would begin. Mr. Nelson set a timetable to begin installation of the intercar barriers on February 1, 1984 and to complete the job by July 31, 1984. Plaintiffs’ Exhibit 5. 4 In a follow-up letter of November 10, 1983, Mr. Nelson declared that testing was underway and that the installation program was on schedule. Plaintiffs’ Exhibit 6.

In a February 15,1984 letter, Mr. Nelson declined to confirm the expected completion date for the installation program. Defendants’ Exhibit C. In a February 23, 1984 letter to a representative of the blind community, and in a February 24 memo to David Gunn, President of the NYCTA, Mr. Nelson asserted that in spite of procurement problems, the completion date of July 31,1984 would be met. Defendants’ Exhibits D, E. On March 22, 1984, however, Mr. Gunn reported that the July 31, 1984 completion date would not be met, and that a new timetable would be prepared. Plaintiffs’ Exhibit 7. In a letter of the same date to Mayor Koch, Mr. Gunn declared that the installation of safety barriers would be complete by February 15, 1985. Plaintiffs’ Exhibit 8.

Members of the blind community had first consulted Leboeuf Lamb Leiby & Mac-Rae (“Leboeuf Lamb”) in September of 1983. At first, LeBoeuf Lamb recommended a wait-and-see attitude to permit the NYCTA to demonstrate its good faith. Tr. at 13-16. In response to Mr. Gunn’s letter abandoning the July completion date, plaintiffs asked LeBoeuf Lamb to file the present lawsuit. Tr. at 18.

Plaintiffs filed this action on April 16, 1984, seeking an injunction requiring the installation of intercar safety barriers on all R-44 and R-46 subway cars then in service. Plaintiffs also sought an injunction against planning, approving, issuing-money for, or contracting for the purchase or lease of subway cars that are not equipped with such barriers. 5

A memorandum dated April 16, 1984 from the Chief Mechanical Officer of the NYCTA to Charles Kalkhof, Vice President and General Manager, declared that the Intercar Safety Barrier program would be completed no later than December 31,1984. Defendants’ Exhibit I. Defendants presented several internal documents dated late March and early April that indicate an expected completion date of December 1984. Defendants’ Exhibits K, L, M. Mr. Cohen testified that the schedule calling for completion of the safety barrier project by December 31, 1984 was developed in January of that year. Tr. at 37.

In a letter to Bronx Assemblyman Eliot Engel dated April 25, 1984, Mr. Gunn stated that the NYCTA was “in the process of developing a realistic program for installing intercar barriers.” Plaintiffs’ Exhibit 9. Interoffice memos dated April 26, 1984 from Mr. Nelson and from Mr. Gunn admonish NYCTA employees that no commitments should be made regarding intercar barriers before a production schedule had been approved. Plaintiffs’ Exhibits 11, 12.

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Bluebook (online)
671 F. Supp. 982, 1987 U.S. Dist. LEXIS 9330, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pickman-v-dole-nysd-1987.