Opinion
22730
November 20, 2002.
Norman Deep, Esq., for the Petitioners.
Thomas O'Brien, Esq. for the Respondents.
DECISION AND ORDER
QUESTION PRESENTED: Respondents move to dismiss the petition as abandoned, alleging that the Petitioners' failed to submit a proposed judgment within sixty days of this Court's Decision. Petitioners' Counsel, who is a qualified individual under the American's With Disabilities Act, asserts that his visual disability is "good cause" for his failure to submit the proposed Judgment within sixty days of the Decision as required by 22 N.Y.C.R.R., Section 200.48.
HOLDING:
Petitioners' Counsel's disability constitutes good cause for non-compliance with the time limits of this regulation. Motion is denied and the proposed Judgment is signed.
DISCUSSION:
The Petitioners, after an extensive evidentiary hearing, were directed by the Court in a Decision dated 6/18/02 to submit a Judgment with Costs. Spinella, Matter of, v. Town of Paris Zoning Bd. of Appeals, 191 Misc.2d 807, 744 N.Y.S.2d 310 (2002).
The Petitioner did not submit a proposed Judgment within sixty days, presenting the same to the Court on or about August 26, 2002, although the sixty day period expired on or about August 17, 2002, nine days earlier. After a written inquiry by the Court requesting Respondent's position regarding the proposed Judgment, Respondents advised on September 9, 2002 that they had not yet received the proposed Judgment. Thereafter Petitioners' counsel served the proposed Judgment on Respondent. On September 30, 2002, the Court received an application and proposed order from the Respondent moving to dismiss this matter pursuant to 22 N.Y.C.R.R. Section 202.48 (hereinafter 202.48(b)), asserting that the Petitioners had abandoned their petition by failing to submit a proposed Judgment within sixty days of the date of the Decision. The regulation specifically relied upon by Respondents provides that a "failure to submit the order or judgment timely shall be deemed an abandonment of the motion or action, unless good cause is shown" (Section 202.48(b)).
In a responsive Affidavit Petitioners' Counsel asserted that he has a visual impairment rendering him a qualified individual with a disability as defined by the American's With Disabilities Act (hereinafter ADA), thereby making him eligible for reasonable accommodation by the Court. He argues that his disability and the attendant need for reasonable accommodation is good cause for the Court to extend the time limits of 202.48((b). He asserted that he was provided reasonable accommodation when attending Syracuse University Law School, consisting of thirty seven readers and several recorders; that the State Bar Examiners provided him reasonable accommodation by providing him four days to take the Bar Exam instead of two and by providing him with two readers and one recorder to type his answers. He further alleged that all New York State Courts, as well as District and Appellate Courts in the Federal Second Circuit have always granted him twice the usual time for motion responses, orders, or any other documentation falling under time requirements. He further alleges that it takes him twice as long to write and read and absorb material as a non-disabled attorney. Petitioners' counsel further advises that in July, 2002 he lost his secretary of seven years, which created an increased work load for his paralegal/reader and which resulted in diminished time for reading and reviewing documentation.
The Court finds that Petitioners' counsel that has demonstrated good cause for the breach of the time limits established by 202.48(b), even though there is no New York precedent that is precisely on point with the case at bar. Reviewing New York cases that have inferential relevance, in People of the State of New York v. Caldwell, 159 Misc.2d 190, 603 N.Y.S.2d 713 (Crim. Court, New York County, 1993), the Court found that "the court system is required to make all of its services, programs, and activities available to `qualified individuals with disabilities'", supra at page 191, and the visually impaired juror was found to be qualified to sit, given the subject matter and evidence in the case, because her disability was capable of being addressed with reasonable modifications. There are a series of cases that provide direction regarding the situations and circumstances in which jurors and Judges with disabilities may hear a case or be disqualified therefrom ( People v. Guzman, 76 N.2d 1 [1990]; Pagan v. Pagan, 191 A.D.2d 651 [Second Dept., 1993]; Jones v. New York City Transit Auth, 126 Misc.2d 585 [Civ. Ct., New York County, 1984]; People v. Brown, 62 N.Y.2d 743; and People v. Johnson, 134 A.D.2d 617 [Second Dept., 1987].
The Petitioners' counsel has a disability within the definition of 42 U.S.C.A. § 12102(2)(A) (the ADA) in that he has "a physical or mental impairment that substantially limits one or more of the major life activities of the individual". A leading commentator gives a succinct explanation of the definitions set forth in the statute and the regulations thereunder:
The definition of disability under the ADA contains two crucial terms: "`major life activities' and `substantially limits'". 42 U.S.C.A § 12102(2)(A) (West, 1995). The Equal Employment Opportunities Commission (hereinafter EEOC) defines "major life activities" as "those basic activities that the average person in the general population can perform with little or no difficulty". 2 C.F.R. pt.1630, app. § 1630 2(i) (1998). Examples of major life activities are "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working". 2 C.F.R. § 1630 2(ii) defines major life activities under Title I; see also, C.F.R. § 35.104(2) 1998 (defining major life activities under Title II); 28 C.F.R. § 36.104(2) (defining major life activities under Title III).
The term "substantially limits" under the EEOC regulations implementing title one means . . . significantly restricted as to the condition, manner, or duration under which an individual under which an individual can perform a particular major life activity as compared to the condition, manner or duration under which the average person in the general population can perform that same major life activity. (Familant, "The Essential Functions of Being, a Lawyer with a Non-visible Disability: On the Wings of a KIWI Bird", 15 TM Cooley, L. Rev. 517 at page 526-527).
The Court accepts Petitioners' counsel's unrefuted representation that he meets the definition of a qualified individual under the ADA. The Court finds that with accommodation he can perform the essential functions of a lawyer as defined by the EEOC by virtue of his skills, experience, and his license to practice law. (Familant, "The Essential Functions of Being a lawyer with a Non-Visual Disability, etc.", supra, at pages 536-537, 539).
Turning to the issue of whether or not granting more time to Petitioners' counsel constitutes a reasonable accommodation, the Court finds that the Courtroom and the Court System constitute the trial lawyer's work place. This finding logically extends to the preparation of documents associated with litigation. A leading treatise, Accommodating Disabilities — Business Management Guide Volume 1, (1999) gives a succinct definition of reasonable job accommodation:
Job accommodation under the ADA refers to the reasonable amount of expense, effort, or restructuring an employer must undertake to enable a "qualified individual with a disability" to perform the essential functions of a job. An accommodation is any change in the work environment or in the way jobs are customarily performed that enables a worker with a disability to perform essential job functions in the same manner as someone without a disability.
There are basically three types of reasonable job accommodations:
1. Accommodations that allow persons with disabilities to apply for jobs on an equal basis as persons without disabilities;
2. accommodations that enable workers to perform essential functions of the position held or being applied for; and
3. accommodations that allow workers with disabilities to enjoy the same benefits and privileges of employment that are enjoyed by workers without disabilities.Supra, 65100, page 1211
Qualified persons have been accommodated in the method of administration of the bar exam. Bartlett v. New York ( 970 F. Supp, 1094 [S.D.N.Y., 1997], reh'g denied, 2 F. Supp.2d 388 [S.D.N.Y., 1997], and aff'd in part, vacated in part, 156 F.3d 321 {2nd Circuit, 1998]). Moreover in Bartlett ( supra) the Second Circuit expressed its view that in most situations visual impairment does not impede the ability to practice law. In D'Amico v. New York State Board of Law Examiners, 813 F. Supp. 217 (W.D.N.Y., 1993) a severely visually disabled applicant won the right to take the bar exam over four days rather than the usual two days. If Petitioner's Counsel was given reasonable accommodation in terms of extended time limits to take the bar exam or law school examinations, similar accommodation should be made by this Court given the discretion vested in it by the regulation. ( Familant, supra).
The Court finds that the accommodation sought in this case helps Petitioners' counsel perform the essential functions of his profession and is not personal to him. The accommodation sought is not unreasonable and does not impose an undue hardship upon the judicial system pursuant to 42 U.S.C.A. § 12112(b)(5) (A). No prejudice has been demonstrated by the Respondents and the extension of time does not in any way impact the outcome of the case.
Petitioners' Counsel's visual impairment is good cause for the failure to meet the time requirements of Uniform Rules for Trial Court, Supreme and County Court, Section 202.48(b) for submission of the Judgment. The Court finds that excusing the failure is a reasonable accommodation to this disability, and as a consequence, will execute the Judgment with Bill of Costs in this matter.
The foregoing is the Decision and Order of this Court.