If the commercial storefronts in your building have steps, or are not otherwise handicap accessible, be warned: your building may be exposed to liability under Title III of the Americans with Disabilities Act (ADA).
Disabled individuals have the right under Title III to sue businesses whose facilities do not meet the ADA’s accessibility requirements, and to recover their attorneys’ fees for doing so. In the nearly 30 years since the ADA was enacted, a cottage industry has arisen to capitalize on the attorneys’ fees provision in the statute. Some attorneys will partner with a serial plaintiff to file hundreds of so-called 'drive-by' lawsuits, wherein the plaintiff merely drives past the building or business in question for the sole purpose of spotting ADA violations, without having any serious intention of actually patronizing the business. Often times, the violations found are very minor (such as having non-levered doorknobs, or a restroom mirror mounted a few inches above the maximum allowed height) and would be inexpensive to correct. The true goal of the opportunists who file these lawsuits is not necessarily to eliminate accessibility barriers, but rather to pocket hefty payments for their fees.
Given that these cases tend to be a slam-dunk for the plaintiff, and that the defendant is on the hook for the plaintiff’s attorneys’ fees, defendants are incentivized to settle quickly. Settling usually entails correcting the violations and paying an agreed-upon amount for attorneys’ fees that can range anywhere from $10,000 to $25,000 or more. While most businesses are happy to make any modifications necessary to better serve their disabled patrons, paying a five-figure sum for legal fees is a tough pill to swallow.
Buildings in New York City are particularly vulnerable to these drive-by suits – and the number of such actions filed in New York has increased dramatically over the last several years. Because most NYC buildings pre-date the ADA’s enactment and are subject to tight space constraints, many are not in technical compliance with ADA requirements, and therefore make easy targets for profiteering lawyers.
Congress recently took action to curb frivolous ADA litigation. In February 2018, it passed H.R. 620, the ADA Education and Reform Act. The Act has two important provisions that promote the ADA’s original goal of making public accommodations accessible, but at the same time protects businesses and property owners from opportunistic litigation.