Crossgates among subjects of local disabled access suits

  • December 11, 2008
  • Bruce Bromley

Capital Region businesses are coming under increasing pressure from disabled New Yorkers who are allegedly encountering physical barriers that violate the Americans with Disabilities Act in public accommodation areas.

Leading the charge in federal court to break down the alleged barriers at Crossgates Mall and two convenience stores in Gansevoort is Miss Wheelchair New York Crystal Bergmann. A Florida nonprofit organization has also launched a similar lawsuit on behalf of a New York City man over alleged accessibility hurdles at the Clarion Hotel in Albany.

Bergmann on Tuesday and Wednesday filed three suits in U.S. District Court in Albany against Guilderland mall owner Crossgates Mall Holdings, Cumberland Farms and Nice N Easy Grocery Shoppes. Bergmann, a wheelchair user, alleges she encountered a host of physical barriers largely in the businesses’ parking lots and public restrooms.

The suits identify Bergmann as a “tester” who discovers, encounters and engages “discrimination against the disabled in public.” She is an Albany woman who suffers from scoliosis and spinal bifida.

At Crossgates, Bergmann alleges that pedestrian crosswalks lack detectable warnings, the counters of mall kiosks are too high and that there are no curb cuts on the shortest routes from the parking lot to the entrances of JC Penney and Dick’s Sporting Goods. She also noted the mall’s food court and other dining areas lack accessible tables and bathrooms with mirrors that are too high and soup dispensers that are out of reach.

In all, Bergmann listed 16 accessibility complaints at the mall.

Spokeswomen for Crossgates and Cumberland Farms were not able to immediately comment on the suits because they were unfamiliar with the cases. In each suit, Bergmann is requesting a federal judge to order the businesses to remove the alleged barriers and make necessary alterations.

“The removal of the physical barriers to access, dangerous conditions and ADA violations set forth herein is readily achievable and can be accomplished and carried out without much difficulty or expense,” Bergmann’s suits state.

At the Cumberland Farms on Route 9 in Gansevoort, Bergmann listed 11 complaints, including a path to the store’s restroom that was too narrow and a restroom that lacked an accessible stall. It also allegedly had grab bars that were too short or missing . Also on Route 9, at the Nice N Easy strip mall, Bergmann listed another 11 complaints, including a ramp leading to the Subway sandwich store that was too steep, a restroom door that was too heavy and an insufficient number of accessible parking spaces.

The spike in public accommodation-related suits surprised John Bagyi, an Albany labor and management attorney. He said businesses usually respond to disabled individuals’ complaints without prodding from courts.

However, Bagyi noted businesses do not need to immediately rectify every instance where their public accommodations fall short of ADA requirements. Congress passed the ADA in 1990 to establish standards designed to prevent discrimination against disabled individuals in the work place and public spaces.

“It’s really depends on whether there’s been modifications recently, and the costs associated” with making compliance-related alterations, Bagyi said. “All they want to do is find out what their obligations are and then fulfill them,”