Wahid v. Long Island Railroad

17 Misc. 3d 309
CourtNew York Supreme Court
DecidedAugust 9, 2007
StatusPublished

This text of 17 Misc. 3d 309 (Wahid v. Long Island Railroad) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wahid v. Long Island Railroad, 17 Misc. 3d 309 (N.Y. Super. Ct. 2007).

Opinion

OPINION OF THE COURT

Charles J. Markey, J.

The postverdict posture of this case raises an interesting issue, raised by the court sua sponte, of the proper payment to be made by New York’s Unified Court System (UCS) for the services of a sign language interpreter who worked unassisted or without the relief of another sign language interpreter. The is[310]*310sue raised is one of national first impression, since the court’s research has not found another federal or state case discussing it.

At the conclusion of this court’s prior opinion, Wahid v Long Is. R.R. Co. (15 Misc 3d 1120[A], 2007 NY Slip Op 50777[U], *6 [2007]), deciding several important pretrial issues, the court stated that it “commends [its Part Clerk] for . . . making the arrangements for a sign language interpreter for plaintiff Far-rah Wahid commencing from June 5, 2007 through the conclusion of this trial.” Although the court, by the foregoing quotation, thought of getting a sign language interpreter for the trial, it did not anticipate the related problems encountered in engaging one.

This personal injury case, commenced by plaintiff Farrah Wahid, who was an infant at the time of the accident, was tried from June 5 to 13, 2007. Farrah Wahid was and is deaf. A sign language interpreter, Mr. Gabriel Grayson, interpreted for Far-rah Wahid. For jury trials or for cases lasting two hours or more in duration, sign language interpreters often work in tandem in order to give one interpreter a respite while a colleague takes over.

Grayson actually worked on this trial of Wahid v Long Is. R.R. Co. on June 5, 6, 8, 11, 12, and 13, 2007. Grayson submitted four vouchers requesting double payment only for four days of this civil trial, for services rendered on June 8, 11, 12, and 13, in my Trial Term, Part 32, in the courthouse at Long Island City in Queens County, since Grayson, on June 5 and 6, also provided and was paid for services in a criminal case in another courthouse.

About a day before the trial, Grayson informed the senior court interpreter for Queens County, Ms. Cynthia Whiteman, that he would do the sign language interpretation only if he were permitted periodic rest periods. The prevailing custom is that American Sign Language (ASL) interpreters get relieved by a colleague after a stretch of time in light of the intensity of concentration and swift and tiring arm and hand movements. When Grayson made clear that he would not provide his signing skills unassisted, Whiteman sought another sign language interpreter to assist Grayson.

Whiteman kept her immediate supervisor current of the problem. With her supervisor’s consent, Whiteman contacted the Office of Court Interpreting Services (OCIS), a part of the Division of Court Operations of New York’s Office of Court [311]*311Administration (OCA), by both e-mail and telephone, about the problem. OCIS always assists in the search for interpreters whenever courts exhaust the resources at their disposal. An OCIS representative was unable to find another ASL interpreter to assist Grayson, and Whiteman so informed him. Grayson then proposed that he would work without relief if he were paid a double per diem rate. In response to Whiteman’s follow-up call, OCIS responded that the matter was entirely a budgetary decision over which the local court and its administration have discretionary authority. Whiteman, accordingly, then agreed to Grayson’s demand.

Toward the start of the trial, having been informed by Gray-son of the difficulties he encountered interpreting without a relief person and by Mark Finkelstein, the head clerk of the Long Island City courthouse, of Whiteman’s conversations with OCIS, I approved the arrangement. In order for this trial to proceed, I agreed that Grayson be paid double the per diem rate, where his services were being provided to the undersigned’s courtroom exclusively. After the trial, I signed an order, dated July 25, 2007, authorizing Grayson to recover “double the usual rate of pay for four days, to wit: June 8, June 11, June 12, and June 13, 2007, for providing said services without the customary assistance.”

This memorandum decision is intended to explain the court’s decision in signing the order and to throw a spotlight on the disturbing lack of skilled ASL interpreters in the courts.

Section 390 of the Judiciary Law, in pertinent part, states:

“Whenever any deaf person is a party to a legal proceeding of any nature, or a witness therein, the court in all instances shall appoint a qualified interpreter who is certified by a recognized national or New York state credentialing authority as approved by the chief administrator of the courts to interpret the proceeding to, and the testimony of, such deaf person; provided, however, where compliance with this section would cause unreasonable delay in court proceedings, the court shall be authorized to temporarily appoint an interpreter who is otherwise qualified to interpret the proceedings to, and the testimony of, such deaf person until a certified interpreter is available . . . The fee for all such interpreting services shall be a charge upon the state at rates of compensation established by rule of the chief administrator . . . .”

[312]*312Two ways exist to approach the issue of the appropriate payment to be made to Grayson. First, as a matter of contract law, an agreement was forged when I gave my consent to the double payment after Finkelstein alerted me to the problem and I talked with Grayson who explained his difficulties. Grayson made clear that he would not continue unless he were paid double or received relief by another sign language interpreter, and I then consented to the arrangement, having been advised of the arrangements with OCA. As a matter of simple contract law, the agreement must be respected.

Second, in terms of accommodation for persons with disabilities, the court sees many policy reasons why this agreement should be respected. Random House Reference has published an important and vital work recently, entitled Random House Webster’s American Sign Language Legal Dictionary (2003), written by Dr. Elaine Costello. Dr. Costello, in the introduction to this brilliant work, states:

“Except for the skilled intervention of a legal interpreter, most Deaf [litigants] would not ... be able to participate effectively .... [I]t remains the task of practiced interpreters, knowledgeable of the judicial system and legal concepts, to accurately communicate legal proceedings whether between the Deaf person and the arresting officer, the Deaf person and the attorney, or the Deaf person in the context of a courtroom hearing or trial.
“The task of using sign language in a legal setting is far more complex than in any other circumstance. The meanings of otherwise ordinary terms have unique meanings when used in the legal arena” (id. at iv).

In addition to the excellent Random House Webster’s American Sign Language Legal Dictionary, an insightful law review article by Michele LaVigne and McCay Vernon, An Interpreter Isn’t Enough: Deafness, Language, and Due Process (2003 Wis L Rev 843 [2003]), is a well-researched and eloquent addition to the little existing legal literature of the special needs facing deaf-mute persons.

Attorney Carla M.

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Cite This Page — Counsel Stack

Bluebook (online)
17 Misc. 3d 309, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wahid-v-long-island-railroad-nysupct-2007.