The Bronx Ink

New York City remains steadfast in its position that it did not violate Title II of the American Disabilities Act in the pedestrian pathway class action lawsuit filed by Disability Rights New York on behalf of Bronx residents Carlos and Stephanie Diaz. 

In its response to the lawsuit, the city stated the Diazes’ complaint of not being able to access their Mt. Eden Mall neighborhood because people parked illegally on their front street, did not include enough harm or injury to warrant getting relief from the court. It also argued that the Diazes neighborhood is generally accessible most of the time and asked the case be dismissed. 

“Nor does the Complaint plead how the alleged obstructions rise to the level of a violation of the ADA and the Rehabilitation Act. Instead, the Complaint merely generally alleges that a problem of accessibility to the pedestrian pathways in the Mt. Eden Mall area violates the ADA,” the city’s response stated.

The court filing comes after the federal government submitted a brief in the Diazes’ lawsuit that said the city’s interpretation of the American with Disabilities Rights was wrong and it must provide clear pedestrian pathways to all residents in the Mount Eden neighborhood of the Bronx.  

Carlos Diaz who has cerebral palsy and Stephanie Diaz who has loss of vision due to degenerative disease filed the lawsuit in June saying they were not able to access their Mount Eden neighborhood because of illegal parkers and placard abusers. 

This worsened after the department of transportation granted special Covid-19 placards for healthcare workers in 2020. 

The city now argues the Mt. Eden Mall neighborhood is a large area and the Diazes’ complaint did not document very specifically what type of obstruction they encountered, where they encountered it, how frequent it was and how long it lasted for it to be a violation of the ADA.

“Plaintiffs merely alleged general conditions and obstructions on the pedestrian pathways in the general Mt. Eden Mall area without specifying, at the very least, their locations within the area that includes many blocks, avenues and intersections,” their dismissal filing claims.

Stephanie Diaze shared with the court in June that she and her husband had submitted 25 311 incident reports regarding illegal parking and recorded at least 45 illegally parked vehicles in front of curb cuts January through March 2021 with specific locations on where the incidents took place. 

The city said that Diaze’s argument is not specific enough on pedestrian pathway obstructions and what harm they caused. They reiterated the Covid-19 healthcare parking permits mentioned in the case expired and the argument of it contributing to illegal parking is now “moot”. 

According to the city’s filing, under the New York Administrative Code, conditions of sidewalks are the adjacent properties owners responsibility. They stated not all the blocked pedestrian pathways mentioned in the complaint are specific enough to determine if the obstructions fall within the city’s pathway program. 

“Thus, viewing the City of New York’s pedestrian pathways in their entirety. The Complaint, which at best alleges a few random non specific grievances that even if true do not rise to the level of ADA violations, fails to state a claim under the ADA or the Rehabilitation Act, and these claims should be dismissed.”  the filing stated.

Disability Rights New York et al v. City of New York et al is currently awaiting the judges ruling on dismissal.

By Ryan Tracy and Dan Lieberman

Word that four year-old Joshua Delarosa was still alive came as good news Tuesday to folks familiar with the intersection at 230th Street and Broadway, but news of another accident in the area was no surprise.

Yolanda Ellerbe, 43, stood near the site of the accident that left Delarosa in critical condition at New York Presbyterian Hospital Columbia Monday as a pair of crossing guards in reflective vests tried, often in vein, to hold off drivers cutting through the crosswalks. Ellerbe called the intersection “terrible.”

Near 230th Street and Broadway, where a car accident injured a four year-old Bronx resident Monday morning, caution tape marked the site of the crash. (Ryan Tracy/Bronx Ink)

Between 1995 and 2005, 19 crashes occurred at the location, according to crashstat.org, a website run by pedestrian advocacy group Transportation Alternatives. There were two pedestrian injuries at the same intersection last year, according to the city Department of Transportation.  Another injury occurred there in 2007, but none were reported in 2008 and 2009.

In 2005, a man in a wheelchair was killed after an SUV hit him at the intersection and dragged him 50 yards.  Another pedestrian was killed at the same intersection in 1999, according to crashstat.org.

“There’s too many schools around here, they need to do something about the (traffic) lights,” said Ellerbe, who worked with Delarosa’s family at a Head Start Program in the Marble Hill public housing buildings next to the intersection.  Delarosa’s mother, Romula Fernandez, was walking him to day care on Monday morning when a swerving livery cab knocked over a nearby traffic sign.  The sign fell and hit the child.

Other observers echoed Ellerbe’s concerns about safety.

“This street, the cars, they running fast,” said Jose Avelar, who can see the intersection from his nearby barber shop.  “There’s something every week.”

After the crash, a nearby crossing guard lifted a traffic sign off Delarosa’s body.  The driver of the cab, who turned to avoid a city Department of Environmental Protection truck “could have run over (Delarosa).  He could have crushed him,” said the crossing guard, who asked to remain anonymous because she was not supposed to speak with the media.

The crossing guard, who has been working with the New York Police Department for 11 years, said she was nearly hit by the sign.  Her navy raincoat still had yellow stains on the sleeve from the spot where a street sign had fallen against it.  She quickly grabbed the heavy sign and surprised even herself with her strength.

“I’m still amazed I did that,” she recalled.

As rain fell, cars, buses and trucks rolled through from five directions.  Schoolchildren, mothers with strollers, people in wheelchairs and dozens of pedestrians walked from side to side, hiding behind steel pillars as vehicles rushed by and a subway train rumbled overhead.

Delarosa’s mother was also injured in the accident, but was discharged from the St. Barnabus Medical Center emergency room Tuesday, said a hospital spokesman.

Ellerbe said she had spoken to Delarosa’ mother Tuesday afternoon and she had reported Delarosa was “doing a little better.”  Ellerbe’s colleagues at Little Angels Head Start expect Delarosa to attend pre-school there this fall.

Last year, the mother had regularly dropped off his older sister at the center, and it was clear young Joshua wanted to go to school too.  “He would come in in the morning and go right in the classroom and sit in the chair immediately,”  Ellerbe remembered.

Despite statistics showing accidents in the Bronx have decreased since 2001, “There are still too many accidents caused by driver inattention, speeding, and failing to yield to pedestrians and too many motorists speed away from crash scenes,” said DOT spokesman Seth Solomonow.