Hours before Sandy hit on Oct. 28, 2012, Mayor Michael Bloomberg stood in an evacuation shelter on the lower east side and urged residents of Zone A — the area most in danger of flooding — to get out.
“We have a plan to keep you and New Yorkers safe. If you follow that plan we’ll get through this storm just fine,” Bloomberg said, addressing a nervous city.
But that plan didn’t work for everyone and, in the chaotic days after the storm, stories emerged of people trapped in darkened high-rises struggling to survive.
To be sure, many of those people chose to ignore evacuation orders and didn’t prepare for the storm despite repeated warnings. But for some — particularly the city’s 900,000 disabled residents — the local emergency plans were inadequate, according to advocates for people with disabilities.
Those advocates are suing New York City in federal court alleging the city’s emergency plans violate the Americans with Disabilities Act — a case that could have implications for local governments nationwide.
“We brought this lawsuit because people with disabilities in New York were scared of what was going to happen during a disaster,” said Julia Pinover, a senior staff attorney for Disability Rights Advocates, the organization handling the class-action lawsuit against the city. The plaintiffs include the Brooklyn Center for Independence of the Disabled and Center for Independence of the Disabled, New York.
According to the lawsuit, the city doesn’t have adequate transportation to help disabled people evacuate, has failed to ensure shelters are accessible and has no plan to find and rescue those trapped after an emergency.
And advocates say practically nothing has changed since Sandy — meaning the city’s most vulnerable are in just as much danger today as they were a year ago.
“I haven’t seen any improvements in the plans over the past year. So I think if a hurricane were to hit tomorrow we’d see the same thing as we saw during Sandy,” Pinover said.
City officials and attorneys declined multiple interview requests. Throughout the case they said the city has numerous plans and resources to help all New Yorkers. They also stressed the importance of personal responsibility.
The city’s Law Department did provide a prepared statement.
“Through a wide range of on-the-ground efforts, targeted communications, outreach, and specialized programs, the City takes tremendous care to incorporate the needs of people with disabilities into every stage of its emergency planning,” according to the statement. “After Sandy, we engaged in a rigorous and expedited process to further enhance our existing programs for all New Yorkers, including, of course, people with disabilities.”
The Department of Justice, however, seems to disagree. The feds weighed in on the case in May — filing a statement with the court supporting the plaintiffs and urging the judge to find against the city.
Such filings carry a lot of weight, said Samuel Bagenstos a professor at the University of Michigan Law School and an expert on disability law.
“The Department of Justice is the agency that’s responsible for enforcing the Americans with Disabilities Act against state and local governments and they have a special responsibility to tell the courts what the law means and the courts listen to them very carefully,” Bagenstos said.
He added that people across the country are paying close attention to the New York case.
“I think it’s a very big deal,” Bagenstos said. “These are really life and death issues for people with disabilities. And this is a case that establishes the principle that people with disabilities, like everybody else, have to be fully accounted for in emergency preparedness actions.”
Pinover said the suit was part of a growing recognition nationwide following Hurricane Katrina that people with disabilities are particularly vulnerable during a disaster. Her group actually filed the lawsuit in 2011 after Irene.
“The lawsuit is kind of amazing because if you read the complaint it reads like a play by play for what happened during Sandy to the class of persons with disabilities who we represent,” Pinover said.
It’s only the second such suit in the country. Disability Rights Advocates also handled the first lawsuit, which was against the City and County of Los Angeles. A federal judge in 2011 ruled against the City of Los Angeles and the advocates reached a settlement with the county.
The New York case went to trial in March, after Sandy. So, most of the testimony and filings focused on the city’s performance during that storm.
The case included the testimony of Joyce De La Rosa who has an orthopedic bone defect and is in a motorized wheelchair. She lives in a Kips Bay high-rise just outside the area Bloomberg ordered to evacuate during the storm.
When her power went out she was trapped with her daughter, who is also in a wheelchair, in their third-floor apartment.
De La Rrosa uses an electric-powered oxygen machine at night. Without it she gets headaches, her body hurts and she can’t sleep.
“My daughter wanted me to go to the hospital right away after 24 hours. Because she said ‘Mommy you know you can’t sleep and you’re going to have trouble breathing,’ you know. So she was really concerned,” De La Rosa said. “I said 'Well this is just 24 hours now.' And then it was 48 hours. But after that then the next day, the third day, I said 'No, I’m going to go.'”
De La Rosa ended up calling an ambulance and going to the hospital.
Advocates say the city had no plan to check on people like De La Rosa. Emergency personnel didn’t start going door-to-door until 10 days after the storm hit. And the city’s program to help evacuate the homebound might as well have been nonexistent. It evacuated fewer than 100 people before Sandy hit and was never restarted after the storm, according to documents and testimony filed as part of the lawsuit.
The case also showed that the city didn’t really have a way for disabled people to get information during the storm other than 311, which was overwhelmed and had wait times of 26 minutes on Oct. 31.
The city failed to stockpile shelters with items for disabled evacuees — supplies like meals for diabetics. And testimony revealed officials didn’t even know how many shelters were accessible to people in wheelchairs.
In court, city officials and attorneys defended the city’s performance testifying that the city does consult with disability rights groups in emergency planning, has a volunteer emergency response program, uses an advanced warning system to reach many with disabilities and operates special needs shelters for evacuees. The lawyers also raised questions about how much the city was at fault in individual cases. For example, a city attorney questioned why De La Rosa hadn’t gotten a back-up oxygen tank prior to the storm as opposed to relying on her electric-powered machine.
The city also appears to have taken steps to address some of the disability rights advocates’ concerns. In the past year, the city has tried to figure out which shelters are accessible and the Mayor's Office recently recommended making door-to-door searches for the vulnerable standard protocol.
But advocates say the changes aren’t enough and the city has known for years how vulnerable disabled people are during an emergency.
Melba Torres, who evacuated to an inaccessible shelter during Irene, testified in the trial. Torres has cerebral palsy and uses a 500-pound motorized wheelchair to get around. She went to a shelter with her aides for the 2011 storm.
“I have to tell you that it was not equipped for us, for somebody in a wheelchair,” Torres said. “They had military cots so I stood in my chair and put pillows to prop myself because being in a military cot was unbelievably awkward for me and it just made my back hurt.”
She slept upright in her wheelchair. If that wasn’t bad enough, the shelter’s bathroom door was too narrow. So her aides had to carry her into the stall, which was embarrassing, she said.
Despite the experience, Torres said she was willing to evacuate again during Sandy. But she said she wasn’t told to leave until 5:40 p.m. the night the storm hit — less than three hours before her building’s elevators were scheduled to shut down. Torres said the shutdown actually started closer to 7 p.m. and she didn’t have time to line up transportation that could take her wheelchair.
“We were still here. The elevators had been shut down so at that point I was thinking ‘Oh dear God, how am I going to come down?’ I live on an eighth floor and I was really afraid,” she said.
Hours later, the power went out leaving Torres and her aide in total darkness.
“Total fear came over me and I just cried. I just cried because I felt trapped and I knew that I wasn’t going to be able to leave,” she said.
It’s unclear when the judge in the case will issue an opinion. Some involved in the lawsuit speculate he might release a decision soon to coincide with the anniversary of Sandy.