NOT FOR REPRINT

! Click to print or Select 'Print' in your browser menu to print this document.

Page printed from: https://www.law.com/newyorklawjournal/sites/newyorklawjournal/2018/01/02/wheelchair-

bound-lawyer-seeks-to-create-change-with-courthouse-access-litigation/

Disabled Lawyer Seeks to

'Create Change' With
Courthouse Access Litigation
Caner Demirayak has sued both New York City and New York State
under the Americans with Disabilities Act and other laws. He is trying to
compel the Kings County Supreme Court civil courthouse to remove
structural barriers that he says impinge on his lawyering.
By Jason Grant | January 02, 2018

The courtroom in Brooklyn overflowed

with lawyers waiting on the calendar
call. Caner Demirayak, sweating slightly,
sat in his 24-inch-wide Invacare Nutron
wheelchair and maneuvered himself
up through the crowd. The young
lawyer had motion papers stuffed
under his arm.
Caner Demirayak
He was there to argue liability in a car
accident case. But first he had to hand
up the reply motion papers to a judge’s clerk. It soon became clear that his
motorized wheelchair, one of the most compact available on the market, would not
squeeze between the courtroom rail and a bench.

Anxiety rippled through him. A 28-year-old trial lawyer with Becker’s muscular
dystrophy, a disease that causes his muscles to waste away, Demirayak had run into
a maze of barriers inside the cramped courthouse before.

“Go against the wall,” a clerk yelled at him, he alleges in court filings. Minutes later
the judge announced that his motion was adjourned because she had not received
the papers.

“I don’t care, in my [courtroom] I must read all the documents,” the judge told him as
he tried to explain the reason for his delay.

Demirayak’s next move was to ride to the back of the room and Google up on his
iPhone the Department of Justice’s regulations under the Americans with Disabilities
Act. On that morning in October 2016, he began to consider bringing a lawsuit.

This September, he launched his case, after what he describes as a series of

increasingly frustrating and sometimes career-impairing incidents during the past
year.

“It was really upsetting. It shook me up some,” Demirayak said of the calendar-call
incident. “I’m trying to figure out [by looking up the regulations] if they’re right” to
adjourn my case, he said. “Maybe I should have gone up there [to the clerk] earlier,
or something.”

He also remembers feeling humiliated as 40 or 50 fellow attorneys watched him lose

the chance to argue his motion after he struggled unsuccessfully to hand in the
documents using his wheelchair.

Demirayak has sued

(https://images.law.com/contrib/content/uploads/documents/292/Amended-
Complaint-.pdf) both New York City and New York State, under the ADA, the
Rehabilitation Act of 1973, the U.S. Constitution’s equal protection clause, the state’s
Human Rights Law and the city’s markedly progressive Human Rights Law. He is
asking for significant structural changes to the Kings County Supreme Court civil
courthouse, at 360 Adams St. in Brooklyn, where he appears as a lawyer, often
several times a week. He is also asking for money, making an initial demand of at
least $1 million in compensatory damages.

Court administration, meanwhile, has said that city court facilities are being
surveyed to assess their needs and that physical changes to at least some buildings
will follow. The state has also taken steps to have the lawsuit dismissed.

Demirayak, 29 and about three-and-a-half years out of law school, handles personal
injury cases for James G. Bilello & Associates, a 50-lawyer firm in Hicksville. The cases
usually come from car accidents.

In his federal ADA lawsuit, which may present certain issues of first impression for
the court, he is working on his own—proceeding pro se.

“I know that the suit helps me, but it also helps other disabled people, because I
want to help everybody else try to move it [the issue of better courthouse access]
along,” Demirayak said recently of his goals for the legal action. “This is exactly the
purpose of law and justice. You can’t change people’s social or psychological views of
the disabled, but you can pass laws and push in the courts and compel judges to
create case law, and that can allow disabled people to be out there more in society.
And the more disabled people are in the world out in public life, the more people
accept them. And you create change.”

Lodged by a Lawyer, Not a Litigant or Juror

What may set Demirayak’s suit apart from courthouse access suits filed over the
years, in both New York and other states, is the myriad ways in which he uses 360
Adams St. as a practicing lawyer.
Many ADA-based lawsuits that focus on courthouse access have featured, as
plaintiffs, people brought into courtrooms temporarily, such as disabled criminal
defendants, civil litigants or jurors. They’re often there for particular cases held in
one designated area. States and other localities operating the courthouses have
often argued that temporary fixes, such as moving a trial from one courtroom to a
more accessible courtroom, were appropriate accommodations. In other words,
they’ve maintained that a one-off fix, or limited fixes, were enough.

In Demirayak’s lawsuit, he describes numerous incidents, spanning more than a

year, that he alleges have happened in various parts of the massive, 10-story Adams
Street courthouse. He argues sweepingly, in a 20-page amended complaint, that he
is suffering harm of a “continuing nature” as “each and every time plaintiff
[Demirayak] performs attorney work in the courthouse, he is injured again and
again.”

One key to Demirayak’s suit may be whether a judge or jury decides that some of
the individual accommodations made for him, such as court administrators
switching a hearing, trial or conference to an area of the courthouse he could better
negotiate, reached far enough in protecting him such that the accommodations
blunted his claims that his career and livelihood are continuously being damaged
and that he does not have equal courthouse access.

“They [New York City and state] may try to say they’ve provided him with reasonable
accommodations when he has requested them and when they’ve been necessary,”
said Michelle Caiola, the director of litigation for Disability Rights Advocates, a
national civil rights group, who reviewed Demirayak’s complaint. “It will be a matter
of showing that is not going far enough to create equal access.”

“This isn’t a one-off situation for him,” she added, “where the court system can
accommodate him on a one-off basis. For him to have full and equal access to the
courts, they’re going to have to remove a lot of barriers.”
Caiola also said, “The goal of the ADA is to bring people with disabilities fully into all
aspects of life—employment, a social life, etc. It’s supposed to protect them from
some of these very humiliating experiences he [Demirayak] is describing.”

Demirayak claims he’s faced impingement almost everywhere in his near-daily

experiences inside the Adams Street building.

“There’s no courtroom that is completely ADA accessible,” according to Demirayak,

who says he has handled hearings and trials in about 20 of the facility’s dozens
of courtrooms. “And when you’re in one of the courtrooms, it’s too narrow, too
difficult to navigate it. You’re making awkward and embarrassing positions in your
wheelchair, trying to turn it around and fit yourself in the well of the courtroom, to
address the jury.”

“And when you’re doing sidebars with the judge,” he said, “the bench is too high, so
you’re looking at the wall from your wheelchair. So you have to ask the judge to
come down off the bench, so you can be heard and can do the sidebar. It shouldn’t
be that way.”

Also, “one of the main problems is, you’re assigned to a particular judge on a
particular floor, and then at the recess, you can’t use the bathroom on your floor.

“Sometimes you have to go to five different floors—you’re just searching for a

bathroom you can use with a working toilet you can fit into,” he said. And back in the
courtroom “everyone’s waiting for you, and then you’re not on time.”

In his complaint, Demirayak also alleges that in January 2017, he was hindered as he
tried a case on the courthouse’s third floor, because the “courtroom was especially
difficult to maneuver in.”

“Each time the plaintiff wanted to move around in the courtroom, every person had
to stand up and move out of the way,” he wrote. “Further, the lawyer tables had
insufficient space for wheelchairs. The plaintiff often tried to move around during
the trial, but there was no room to do so.… The plaintiff wanted to speak with his
independent eyewitness and client, but could not, due to the insufficient space in
the courtroom.… When the plaintiff called these two individuals as witnesses, he was
actually unsure if they were in the courtroom or outside waiting.”

He also alleged that in July 2017, he tried, unsuccessfully, to use the courthouse’s
third-floor law library for the first time.

“When the plaintiff entered the doorway near the law library he noticed the library
went down to a lower floor with a set of stairs,” he wrote. “An unknown person
standing nearby then shouted, ‘Damn that sucks!’” according to the complaint.

Caiola said the fact that Demirayak is a lawyer helps differentiate his court-access
case from others. It’s a case to watch, she said.

“I think his suit makes sense,” said Caiola, “and a judge should be able to understand
it.”

“Many courthouses have tried to address this issue [access for the disabled] and
some have done better than others,” she noted. “For instance, in Minnesota they
have made all sorts of changes. There is a judge there with a disability. California has
done better than New York.”

But “a lot of the courts are old buildings, and they all have not been remediated to
remove the barriers,” she said.

Citing his own research, Demirayak said he failed to turn up a court access suit
brought by a disabled lawyer, although he acknowledged his research was not
exhaustive.

“I don’t know any wheelchair-bound lawyers. It’s so rare,” he said. “Probably because
they are deterred, because the system is so bad. I mean, how are you going to be a
lawyer if you can’t do your job?”

The City’s and State’s Defenses

There are more than 30 courthouse facilities across New York City’s five
boroughs, including multiple buildings that are near a century old. They encompass
millions of square feet. The buildings are owned and maintained by the city’s
Department of Citywide Administrative Services. But the legal services
provided within the facilities are under the aegis of the state’s Office of Court
Administration.

Demirayak names as defendants in his lawsuit the city, the state, DCAS, OCA, the city
Department of Buildings, and various officers from the agencies.

The defendants’ responses thus far, in statements to the Law Journal and in papers
filed with presiding U.S. District Judge William Kuntz II of the the Eastern District of
New York, have been mostly terse. Still, the lawsuit is in its early stages. No motion
to dismiss has yet been filed, and Demirayak has agreed with defense lawyers that
he’ll file a slightly amended complaint later this month.

“There is not much I can say as this is pending litigation,” said Lucian Chalfen, an
OCA spokesman, in a recent email to the Law Journal. “Facilities issues should be
directed to New York City, as they are required by statute to provide and maintain
the courthouses. However, we are working with the city in an assessment of needs
in all our buildings at which point they will be implementing physical changes.”

In a follow-up email, Chalfen noted that 20 courthouse surveys assessing the

buildings’ accessibility and potential needs had been completed by Jan. 1, 2018,
including a survey of the 360 Adams St. building.

“It’s being addressed, and we’re participating with the city,” Chalfen also said by
phone, adding that the city “should get into telling you what they’re doing [in
assessing buildings’ needs].”

The city, in its Dec. 6, 2017, answer to Demirayak’s complaint, was to the point.
Signed by Agnetha Jacob, a Law Department attorney, the answer denied nearly all
allegations and said little else.
Apart from that document, the city has not provided a response. Lisette Camilo,
DCAS’s commissioner, did not respond to an email seeking comment for this story.
The media office for Mayor Bill de Blasio also did not respond to a request for
comment. The city Law Department, which is representing the city, its agencies and
named city officers, declined to comment.

The state, in a Dec. 1, 2017, letter

(https://images.law.com/contrib/content/uploads/documents/292/show_multidocs.pl_
Kuntz submitted by Carly Weinreb, an assistant state attorney general, took a more
detailed and expansive position. The state asked Kuntz to grant it a premotion
conference in anticipation of the state and OCA executive director Ronald Younkins
filing a motion to dismiss, and in the letter, Weinreb laid out anticipated bases for
the motion. She wrote, for instance, that Demirayak’s complaint “is devoid of
allegations directed specifically at the state of New York, Younkins, or OCA” and that
its “threadbare recitals of a cause of action’s elements, supported by mere
conclusory statements, fail to state a plausible claim.”

Weinreb also argued that the U.S. Constitution’s 11th Amendment immunity barred
Demirayak from asserting state law claims against the various state defendants in
federal court, and thus his Human Rights Law claims, as well as claims for intentional
interference with contract, intentional infliction of emotional distress, and
humiliation, should be dismissed.

In responding with a letter of his own to Kuntz, Demirayak argued

(https://images.law.com/contrib/content/uploads/documents/292/123113760600-
2.pdf) that the state and OCA had received federal funds and waived immunity. He
also wrote that, “when read liberally, the complaint clearly states a plausible claim
under Title II of the ADA as well as Section 504 [of the Rehabilitation Act] and for
equal protection.”
One thing seems certain: The battle over the facts and law, including the ADA, will be
hard-fought. Generally, for facilities built before the ADA was passed in 1990—such
as 360 Adams St., constructed in 1958—the building does not need to use “any and
all means” to make its services accessible. It only needs to provide “meaningful
access,” case law and experts say.

And, reasonable modifications do not require fundamentally altering the nature of

the service provided or imposing an undue financial or administrative burden on a
facility owner. But if modifications or temporary-type methods of fixing an access
issue are not effective in achieving compliance, the law may require architectural
changes to be made.

Sarah Bell, special counsel at Pryor Cashman in Manhattan and co-chair of the firm’s
Americans with Disabilities Act defense practice, said in an interview that “based on
my read [of Demirayak's lawsuit], there are some unique circumstances here.”

But she also said there may be “middle-ground accommodations that can be made.”

“If you think about a judge’s bench being up two or three steps,” for example, she
said, “there are less intrusive ways of overcoming those steps than renovating the
courthouse.”

She noted that “the [ADA] law is about 27 years old, and a lot of the newer buildings
[built in recent years] are more compliant.”

But “all around the country, courthouses are some of the oldest buildings we have,
and when they were built, handicapped access was not the primary concern.”

“For a government facility,” she said, “I have a feeling the most major defense is
going to be feasibility, and No. 2, financial concerns. I can’t imagine that state
governments are going to be able to afford to go and renovate all their
courthouses.”

The Condition of City Courthouses

Demirayak is hardly alone in drawing focus to difficulties faced by disabled people,
whether everyday working lawyers or one-time visitors, who try to access New York
City’s courts.

In March 2015, for instance, the New York Lawyers for the Public Interest, a
nonprofit civil rights organization, issued a 20-page report that found that “New
Yorkers with physical disabilities face an array of accessibility barriers in all areas of
courthouses throughout New York City, denying them meaningful access to justice in
a most fundamental way, in violation of federal, state and local laws.”

The report, based on a

review of 10 of the
more than 30
courthouses and
holding pens for
criminal defendants
across the five
boroughs, was said to
be a first-of-its-kind
widespread look at
courthouse accessibility
in the city.

Barriers to accessibility
for the disabled were
found to be
rife, including “entrances without ramps or lifts, issues of incorrect signage,
inaccessible bathrooms, heavy doors, blocked pathways and inaccessible spectator
seating,” according to Maureen Belluscio, a Disability Justice program staff attorney
with NYLPI, who testified in June 2016 before a New York City Council committee.

The 2015 report itself stated that the difference between an accessible and
inaccessible courthouse “can mean, for example, the difference between whether or
not a person who uses a wheelchair is able to participate in jury duty, represent a
client during a court proceeding, or have a job in the courthouse.”

It also said that “while barriers found in the design and layout of courtrooms,
holding pens and booking areas may require architectural modifications to be
eliminated, justice demands that New York City and State governments devote
resources to ensuring that people with disabilities have equal access to the city’s
system of justice.”

Yet, at the same time, it noted that “the fixes for at least some of the problems
identified in this report do not necessarily involve costly architectural changes.
Rather, with proper signage and adequate training, many barriers can be remedied
at little cost.”

In the wake of the report, the city and New York Lawyers for the Public Interest, and
four of the group’s clients, entered into what the NYLPI has described as a
“groundbreaking” structured negotiations agreement.

“The city, NYLPI and our clients will address a number of topics, including improving
the physical accessibility of existing courthouse facilities as well as any new
construction, improving training for city employees assigned to work at courthouse
facilities, and the city’s data collection processes,” said a July 2016 posting on the
NYLPI website.
Suzanne Lynn, general counsel at DCAS, said in city council testimony in June 2016
that “both the city and NYLPI will negotiate, in good faith, on issues related to
physical accessibility of courthouses in the city. As an incentive to engage in these
discussions, both sides preserve their claims and defenses while the negotiations
are ongoing.”

The structured negotiations continue today.

Lynn also pointed out several steps DCAS had already taken in recent years to
improve access to city courthouses. They included retaining an architectural firm to
provide services aimed at bringing DCAS-managed court buildings into compliance
with disability laws, and adding 162 new ADA signs to the outside of courthouse
buildings in 2015.

Demirayak’s Fight
In January 2017, months after the incident that help spur Demirayak to file his suit,
he was back in the courtroom, trying another case at 360 Adams St.

Negotiating the courtroom’s well slowly and awkwardly in his wheelchair, he was
once again confined to the room’s small center, along with cramped areas around
the lawyers’ tables. He was on the fourth floor of the building, and his adversary,
counsel for a plaintiff in a car accident case, was suddenly referring to Demirayak’s
disability as he made an opening argument to the jury.

“Will you be able to put away the fact that this attorney [for the defendant] is in a
wheelchair, and focus on my client?” the plaintiff’s lawyer said, according to
Demirayak.

Moments later, Demirayak rode up through the courtroom’s well, approaching the
jury box in his wheelchair so that he could make an opening argument of his own. As
he tried to inch close to the jury, though, he didn’t see a podium that had been set
up behind him. His wheelchair slammed into it, toppling the podium. It hit the
ground with a thud.

Some jurors instantly reacted by putting their faces in their hands, Demirayak recalls
today. His own face flushed red in embarrassment.

“I was definitely seething,” Demirayak said, “because any little thing can ruin a case in
front of a jury.”

He soldiered on, though, while quickly deciding to reference his own disability now
that his adversary had brought it up.

“Man, this courtroom could be in much better form, huh,” Demirayak recalled telling
the eight jurors. Then, transitioning from his own predicament to his client’s
defense, he said, “It looks like my client is not the only one being treated unfairly.”

For 11 years, Demirayak has been confined to his black, sleek wheelchair. It has
become a part of him—part of his life throughout college at Hofstra University,
through law school at St. John’s University and now as a busy lawyer.

As the muscular dystrophy with which he was born is known to do, it has grown
worse, tearing down his muscles increasingly each year. He has lost nearly 90
percent of the muscles in his upper legs, he says.

But he appears hearty, and is deeply involved in his caseload. A slightly stout, round-
faced man, Demirayak is nearly a fixture inside the Adams Street structure these
days. On a recent afternoon, he stopped to talk frequently in the hallways with
fellow lawyers, joking with them as he stared up from his chair. Then he kibitzed
with courthouse staff and shared a laugh with them. He’s social, and often engaging.

Workers in the building recognize the uphill battles he faces in negotiating the
courtrooms, bathrooms and areas found up stairways. But Demirayak says they also
seem unsure of what to do about it.
“Even court officers have said something to me about the problems,” he said. “And a
few judges who I’ve appeared before have asked me, ‘When are you going to do
something about this?’”

“One judge, I got a defense verdict before him, and he said afterwards, ‘You know,
you’re really good at this stuff [litigation]. You got to sue, you got to try to make a
change in the courthouse.” Demirayak declined to name the judge.

But at the same time, Demirayak has already hit roadblocks in his lawsuit, though
the case is still in the early stages.

In October, for instance, he moved for a preliminary injunction before Kuntz. He

asked for fast remedies such as correct signs for the disabled in the courthouse,
temporary portable ramps and lifts in certain places, and for a government-
submitted plan outlining the ultimate removal of architectural barriers.

Kuntz denied the injunction motion swiftly, then issued a written ruling
(https://images.law.com/contrib/content/uploads/documents/292/Kuntz-order.pdf).

“Plaintiff seeks far more than merely prohibitory relief or to maintain the status
quo,” the judge wrote. “Although the ADA and the Rehabilitation Act do provide for
such permanent, prospective relief, it is typically available only as a remedy after a
finding of liability. If the court granted plaintiff’s request at this juncture, it would be
giving him the ultimate, final relief he seeks without requiring him to prove the
merits of his case at trial.”

Now, Demirayak is back to focusing on the main case, which appears likely to
unspool over many months or years. He says he is undaunted by the injunction
setback, and still spends several hours a week on his pro se pursuit, while carrying a
full-time law practice.

He works on letters to Kuntz and on court filings late into the night in his one-story
Long Island home, he says. He’s also planning to file a separate lawsuit by the middle
of 2018. It will focus on the “other New York City courthouses I’m aware of” that he
says are likewise plagued by barriers for the disabled.

“I’m not going to be always working in this particular courthouse in Brooklyn, and
the fact that they’re not accessible deters a lawyer from wanting to work in other
places,” he explained. “My whole argument is that I may have taken a job that would
involve those courthouses, but it [the barriers] deters you from taking those cases.”

As for the effort and motivation involved in pushing forward his lawsuit and the fight
that lies ahead, Demirayak said he is secure about what he is doing and why he’s
doing it.

“I have disabled friends who have been trying to get out of the system of long-term
care for years,” he says, his voice growing quieter and steady. “But they can’t,
because the government only allows them to make a certain amount of money or
they get their benefits cut. And you’re talking about benefits where the person needs
to be lifted out of their bed, have their lives put together.

“They’re bright people and they want to contribute to society,” he goes on. “And so
you have the ADA law, but you don’t have people in the government who strongly
believe that they [the disabled] should be in the workforce. They’re not removing the
barriers. It’s a by-product of their own belief.

“I’m a big believer in justice and the rule of law. I’m a civil rights person—I think
everyone should be treated equally under the law. So this is my chance to compel
the government, to push the government along, to make sure that the last group of
people who were given their civil rights, the disabled, are more integrated into
society.”

Copyright 2018. ALM Media Properties, LLC. All rights reserved.