No co-op or condo board wants its commercial spaces to be inaccessible to the disabled. But a particular type of disability lawsuit may be targeting small businesses in your building, not with any intention of seeing them made fully accessible but simply to collect a token fee for the plaintiff and a large fee for the attorney through a quick settlement.
It's an updated version of ambulance-chasing, say critics, who note that targeted businesses are never sent a letter with specific issues to cure and a time frame to do so, as is normally the case. “I call these wheelchair-chasers,’’ says Emil Samman, a partner at the law firm Romer Debbas, referring to lawyers who fire off multiple disability lawsuits with the same boilerplate language more to enrich themselves than to implement meaningful change or help a client – who, in many cases, is the same plaintiff filing dozens of lawsuits against businesses they do not even patronize.
“The right of the [disabled] plaintiff to have access is very clear,’’ says Andrew Weltchek, an attorney at Cohen, Hochman & Allen, who speaks on disability laws as they relate to co-ops and condos. ‘“But the amount of fees the attorneys attempt to settle for can vary widely, and I think what people perceive as a shakedown is the fact that attorneys' fees may be exaggerated.”
When the targeted businesses are in your building, that puts your cooperative or condominium association on the hook as well. While payouts to plaintiffs are generally only in the $500 to $1,000 range, legal fees to their attorney can be as high as $20,000. Your insurance may not cover them – and if it does, you may have to pay higher premiums in the future.
Are there pre-emptive steps a board can take to avoid such lawsuits? What are the most common things being targeted? How can a board protect itself?
A Plethora of Laws
New York co-ops and condos are vulnerable because multiple laws apply. And they are complex: Title III of the Americans With Disabilities Act, which covers public accommodations and commercial facilities such as a business in your building, runs to 261 pages. New York State's Human Rights Law clocks in at 49, and New York City's at 53. They cover such obvious things as the need for a ramp if there's a step up into a business, as well as more obscure items like the maximum height of any self-service counter with condiments, utensils, or tableware.
The laws also require expert interpretation. Single-family homes are exempt, but co-op and condo lobbies and other common areas are questionable. While they normally are not subject to the ADA as a place of “public accommodation,” says Weltchek, the possibility exists that if there is a place of public accommodation accessible only from the lobby, such as a doctor's office, then the lobby entrance might have to be made accessible to disabled persons. “Otherwise,” he adds, “the lobby wouldn't be subject to the ADA, although it might be subject to the Fair Housing Act."
Virtually all of the disability lawsuits over the last decade or so have involved commercial spaces, says Samman, adding, “It's mostly improper entrances for ADA compliance. Restrooms are usually an issue, especially with restaurants.”
Street access is the most vulnerable area. Boards should ensure that any commercial space in their buildings with an entrance not at sidewalk level installs a ramp or has a portable ramp available. Note that the ADA requires a permanent ramp only if installing one is "readily achievable" – otherwise, a portable ramp is acceptable. If a business has two public entrances, only one, in most cases, must be accessible. There is a bottom line, according to Samman: “If a space is not ADA-compliant, there is liability there.”
That means, says Weltchek, “the real issue is what is the cost-effective, legally required, responsible business decision for the co-op or condo to make.”
“If you're doing a major [retail-space] renovation and the cost of putting a permanent ramp or lift is relatively minor,” he adds, “then by all means do it then and there. But if you have an old building and no one's sued you yet, you can kick the can down the road. It may or may not be the most morally upstanding thing, but you're making make a business decision to wait until you might get caught.’’
If that's the case, insurance becomes especially important. “Three types of insurance might cover it,” Weltchek says. “The building or the tenant or the owner will usually have a comprehensive general-liability policy. Those rarely have coverage for ADA claims, but it's worth looking into.’’
Second, “the tenant will almost certainly have an employment-liability policy, since disabled employees, like disabled customers, are also a protected class,” he says. Finally, "you may get an umbrella policy that covers miscellaneous risks,” he adds. “You can consult your insurance agent and try to find coverage that would protect you and at least see how much it costs. Then consult with an architect and get an estimate of what physical modifications would cost. Fixing the problems might be cheaper than getting insurance for the problem.’’
Who's responsible for making accessibility changes? It depends. “The owner of the building and the tenant in the space are both potential defendants," says Weltchek. “Those parties enter into a lease that allocates that burden, and almost always the tenant is responsible under the lease.’’
But he adds: “Anybody could get sued. With a co-op, that could be the board, the shareholder with the proprietary lease of the space, and the subtenant. With a condo, it's usually whoever owns the commercial unit, and the tenant.’’
As a practical matter, Weltchek adds, if a struggling mom-and-pop restaurant has been sued, the co-op or condo board may want to chip in to help keep them in business and not create a vacancy.
There's some grandfathering in the laws. Generally, if no building permit has been issued for your commercial space since 1992, the space's owner or tenant need only do what is “readily achievable” for ADA compliance. The law defines “readily achievable” as “easily accomplishable and able to be carried out without much difficulty or expense.”
So, for instance, a restaurant that hasn’t made any material renovations in the last 27 years wouldn't have to tear out its restrooms and renovate them, but it might have to install visual fire alarms to accommodate the hearing-impaired. If the commercial space has been issued building permits since 1992, then it must comply with the ADA unless doing so would be, as the law puts it, “virtually impossible.”
Who's Suing Whom
In the New York City area, most of the so-called “drive-by lawsuits” have been filed by B. Bradley Weitz of the Weitz Law Firm in Aventura, Fla. (The firm did not respond to a request for comment.) Between 2010 and 2017, Weitz filed 183 disability lawsuits for one client alone, Zoltan Hirsch, plus another 78 for Luigi Girotto, 64 for Mike Costello, and 62 for Kiran Vuppala, among others, according to a report by an Albany-based advocacy group, the Lawsuit Reform Alliance of New York. "It's easy for someone to roll down a street to see if there are steps or other obstacles to get into a clothing store or bodega or any other business," Weltchek says.
One co-op subjected to such a suit was 478 West Broadway in Soho. “A complaint was filed in [federal court] claiming an art gallery in the building was in violation of the ADA,” says Herbert Henryson II, an attorney who was the co-op board president in 2018 when Vuppala, one of the serial litigants, sued the gallery, the shareholder entity that owned the space, and the co-op corporation. The co-op settled its part of the suit with the purchase of a $500 portable ramp, plus monetary damages of "about $1,000" and fees to Vuppala's attorney, Weitz. Nearly a year after the case was settled, Henryson asked the gallery staff if they’ve ever used the ramp. “And they told me no," he says.
The newest wrinkle? Lawsuits against websites that are not accessible to the visually impaired. “Lawyers are going after fine-art galleries,” Henryson says, “because their websites are not compliant."
The Need for a Master Plan
Some states are addressing the spate of serial disability lawsuits. California plaintiffs who file such suits frequently must meet certain conditions and are charged an additional $1,000 court fee. Minnesota requires that before filing such a suit, the plaintiff or attorney must send the business a letter detailing the possible violations and giving the business an opportunity to make alterations; the letter cannot demand money to not file the suit.
Whether or not such measures come to New York, Ethelind Coblin, the principal of her namesake architectural firm, advises boards to have an architect or engineer look at their buildings holistically and create a master plan covering problem areas that need to be addressed. “Some things can't be resolved so easily,” she says. “There are tradeoffs that have to be made. But the building has to be aware of what issues it’s facing, so that when someone comes to you [about a disability issue] you can say, ‘You are right, here's what we're looking at, and here are our limitations.’’’
That may not prevent drive-by lawsuits, but at least you'll be better prepared.