Frank Lovece in Building Operations on February 11, 2020
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. This, clearly, is not in keeping with the lofty motivation behind the Americans with Disabilities Act (ADA).
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 that leads to some feeling like they were victims of a shakedown."
When the targeted businesses are in your building, that puts your cooperative corporation 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.
What are the most common things being targeted? And how can a board protect itself?
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.”
Adds Weltchek: “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 them.’’
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