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News10NBC investigates an explosion of ADA lawsuits in New York

April 30, 2019 11:29 PM

ROCHESTER, N.Y. (WHEC) -- There is an explosion happening in New York state. It's the number of lawsuits filed against malls and restaurants for discriminating against people with disabilities. 

But our investigation shows the complaints are almost always identical. In our first story, you heard one judge call the complaints "copy and paste." You heard one lawyer say the whole thing is a "money grab."

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The lawsuits say at dozens of properties in Rochester and Buffalo, the conditions make it dangerous for people with a disability. 

So, News10NBC put one of the lawsuits to the test. 

News10NBC Chief Investigative Reporter Berkeley Brean joined Chris Hilderbrant at Southtown Plaza in Henrietta. A diving accident when he was young paralyzed him from the waist down. Now Hilderbrant runs a consulting business, advising property owners how to comply with the Americans with Disabilities Act. 

News10NBC Chief Investigative Reporter Berkeley Brean: "What do you see?"

Chris Hilderbrant, ADA compliance consultant: "I see a property, an organization that has tried to do right. Things are generally accessible. Things are generally pretty easy to get around. There may be some places where they didn't quite follow the letter of the law, but I think there was a good faith effort to follow the heart of the ADA."

Southtown was sued in federal court in December. The lawsuit says Southtown violates Title III of the ADA because of the slope of its parking lot, some of the handicap parking spaces and the sidewalk ramps. 

So that's where Hilderbrant and News10NBC went. We did find what he called technical violations. 

First, an accessible parking spot. 

Brean: "So what's the problem here?" 

Hilderbrant: "For this spot, they've labeled it accessible but they don't have an access aisle."

That would make it hard for people like Hilderbrant to get out of a car. But the slope of the parking lot and ramps seemed fine. 

Hilderbrant: "So this curb ramp is pretty slow and gentle."

Hilderbrant says he did see a ramp where the "asphalt of the parking lot didn't line up" creating an inch to two-inch bump. He said "that could be challenging for some wheelchair users. It could be a trip hazard for somebody who has limited walking ability so something like that could be a concern that would need to be addressed."

Brean: "If you were in a position to do it, would you sue the owners of this property for violating the terms of the ADA?"

Hilderbrant: "No. I can think of dozens and dozens of other places that would be on my list. But this place wouldn't be on it at all."

But the owners of the property are sued in federal court. So is the owner of Eastview Mall and Elmridge Plaza in Greece. They are some of the 18 malls and restaurants sued in Rochester and Buffalo over the past year. 

And every time, the name of the plaintiff on the complaint is the same: Christopher E. Brown, from Queens, New York. 

Scott Mooney, Boylan Code law firm: "We knew right away that this was just a money grab."

Scott Mooney was the lawyer for Southtown when Christopher E. Brown filed his lawsuit in December. The property got sold so Mooney can talk about it now. 

Brean: "How do you prove something like that?"

Mooney: "That's the thing. It's difficult to prove. And that's why these types of cases which we call "drive by ADA cases" they're difficult to defend against. And most of the time, most businesses can't afford to fight them. So they end up paying a settlement which is exactly what the plaintiff and his attorney wants."

A representative for the current owner of Southtown declined to comment because of the lawsuit. 

In 2012, The New York Times reported the average plaintiff collects $500. 

The average lawyer fees are $16,000. 

In a similar case in Louisiana, court documents show Brown's attorney demanded $46,825.69 in legal fees. 

In April, News10NBC called Brown's lawyer in Florida and exchanged a series of emails. 

On Tuesday, Louis Mussman wrote: "These cases are about improving access for the disabled, not about money.  Neither the law firm of Ku & Mussman, P.A. nor any of our clients have ever been sanctioned or admonished by any court for frivolous litigation in an ADA matter.  In fact, several courts around the nation have noted the excellent results obtained by our firm.  We take pride in bringing ADA actions to fight against discrimination in the form of barriers to access. For example, in the Southtown matter we hope to force Defendant to provide access aisles and signs at its disabled use parking spaces, fix broken pavement and regrade curb ramps to provide gentler slopes for greater wheelchair access. Our recommendation to property owners would be to remove ADA barriers at their properties because more access means more business."

Federal court documents say Brown and his lawyer have filed "at least 111" lawsuits in New York, New Jersey, Connecticut and Pennsylvania.

The number of Title III ADA lawsuits in New York state in 2017 was 1,023. 

In 2018, it jumped 128 percent to 2,338. 

And 2018 set a record with 10,163 lawsuits filed across the country. 

Brean: "How does something like this happen? Why is this allowed to happen?"

Mooney: "So, Title III of the ADA, it's a well-intentioned law. Okay? But it's become a tool for abuse and has spawned a cottage industry of serial plaintiffs who target small businesses for the purpose of making a quick buck."

Hilderbrant: "I think one potential positive outcome is if our local business community and disability community were to come together to proactively work on improving access so that nobody is getting sued but also nobody is being denied access. That would be one potential good outcome of these lawsuits."

We contacted the attorneys for many of the lawsuits in western New York. They either said they don't comment on pending cases, or they settled and signed a non-disclosure agreement. 

We received a statement from the attorney for Eastview Mall late Tuesday. It reads: 

"Eastview Mall is aware of Mr. Brown's lawsuit," attorney John Mancuso said. "As a general matter, we at Harris Beach are aware of the challenges posed by serial litigation related to Title III of the Americans with Disabilities Act. We also understand that Mr. Brown has instituted several hundred lawsuits in various courts alleging violations of the Americans with Disabilities Act, and these types of lawsuits are continuing to increase across the country.  This is time consuming and expensive for businesses, but nevertheless Eastview believes in the principle that individuals with disabilities deserve equal access to public accommodations. Over time, Eastview has spent millions of dollars to ensure its facilities are ADA compliant."

News10NBC is going to continue to investigate why a potential solution to this issue never got passed in Congress. 

Credits

Berkeley Brean

Copyright 2019 - WHEC-TV, LLC A Hubbard Broadcasting Company

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