File Photo: June 2013 Fire at NRHS

City School District Of New Rochelle Sues City of New Rochelle Fire Department in Federal Court

Written By: Robert Cox

WHITE PLAINS, NY — The City School District of New Rochelle has filed a lawsuit in federal court accusing the New Rochelle Fire Department of discrimination and alleging that firefighters failed to act in the best interests of a New Rochelle High School student with cerebral palsy confined to a wheelchair.

LAWSUIT: Third Party Complaint NRFDvNRBOE

The filing came after U.S. District Judge Cathy Seibel approved an impleading request by the District.

In the lawsuit, the District seeks to blame the New Rochelle Fire Department despited a fact-finding investigation by the U.S. Attorney’s Office and a lawsuit filed by the U.S. Attorney which the District settled by signing a Consent Decree last summer.

As the ultimate authority at the scene on the Fire Department is a necessary party to this action pursuant to the Federal Rules of Civil Procedure, Rule 19. Accordingly, if it is determined that plaintiffs are entitled to compensation arising out of the decision not to evacuate non-ambulatory students from the High School on January 31, 2013, and/or its handling of this matter once it arrived at the scene on January 31, 2013, that liability lies with the Fire Department and not the School District.

Filed on March 2nd in U.S. District Southern District of New York in White Plains, NY, the district’s complaint states the New Rochelle Fire Department breached what the District calls its “special duty” to both Jennifer Feltenstein and the School District. Feltenstein was a student at New Rochelle High School from September 2009 through June 2013.

The District is seeking to have Feltenstein’s complaint against them dismissed while requiring the New Rochelle Fire Department to indemnify the District.

The Feltenstein lawsuit against the District arises out of a fire incident on January 31, 2013.

The District has repeatedly claimed that “High School personnel asked the Fire Department officials whether it was prudent to evacuate non-ambulatory students, including but not limited to Jennifer Feltenstein, who was with security personnel and her aide at the time and accessible to the Fire Department via radio communication” and that “The Fire Department instructed that the smoke condition threat did not warrant evacuation of the non-ambulatory students.”

The Fire Department has denied those claims. The U.S. Attorney sided with the Fire Department.

Preet Bharara, the United States Attorney for the Southern District of New York, and Rebecca Martin, Assistant United States Attorney, in a fact-finding report released in August, 2013, found the City School District of New Rochelle violated Title II of the ADA through its failure to evacuate two students from New Rochelle High School on January 31, 2013, its failure to establish an evacuation plan prior to January 31, 2013 and its failure to permit students who use wheelchairs for mobility to participate in evacuation drills in an equal way in accordance with the statute.

As part of that investigation, officials from the New Rochelle Fire Department were interviewed. Their testimony was deemed credible, that of the District was not. Joseph Starvaggi, Vice Principal for New Rochelle High School, and Yvette Goorevitch, Director of Special Education and Bruce Daniele, Director of Security are cited by name in the Findings.

The Department of Justice directed the District to remedy the violations by establishing an Accessibility Plan for Students with Disabilities at New Rochelle High School that, among other things, provides for accommodating requests from students with disabilities to be assigned to classrooms from which there is an accessible means of egress, and ensures that appropriate evacuation procedures are in place for the safety of all students with disabilities.

In addition, the Department of Justice directed the District to pay compensatory damages — apart from any private suit the may be filed by the students — to Michael Martinez and Jennifer Feltenstein, the two students who were not evacuated on January 31, 2013. Martinez has yet to file a lawsuit but is expected to do so.

On July 25, 2014, Preet Bharara, the United States Attorney for the Southern District of New York, announced the filing and settlement of a lawsuit against the City School District of New Rochelle for violating Title II of the Americans with Disabilities Act of 1990 by failing to evacuate two students with disabilities from the New Rochelle High School during an actual evacuation, as well as drills. The settlement, in the form of a consent decree, was approved yesterday by U.S. District Judge Cathy Seibel.

Bharara issued a statement castigating the District:

We think of schools as safe havens for all students, and students with disabilities are no exception. The ADA requires that students with disabilities be given the opportunity to participate meaningfully in all programs put in place by their schools – a requirement that applies with particular force to an emergency preparedness program. There is never an excuse for jeopardizing the safety of any child.

According to the Complaint and Consent Decree filed by Bharara in Manhattan federal court, the District failed to provide two students with disabilities with “meaningful access” to the school’s emergency preparedness programs when it failed to evacuate them on January 31, 2013, during a school-wide evacuation, after the fire alarm was triggered as a result of a smoke condition in the electrical room of the New Rochelle High School. In addition, the investigation revealed that the District had failed to maintain evacuation plans for students with disabilities and failed to permit them to participate fully in evacuation drills. Title II of the ADA prohibits a public entity from, among other things, excluding individuals with disabilities from, or denying them the benefits of, its services, programs, or activities. To comply with Title II, a public entity must ensure that individuals with disabilities are afforded “meaningful access” to such services, benefits, and activities, including emergency preparedness programs.

In the Consent Decree, the City School District of New Rochelle expressly acknowledges “that it failed to evacuate J.F. (Jennifer Feltenstein) and A.B. (Michael Martinez) from the New Rochelle High School with the rest of the student body during an evacuation that occurred on January 31, 2013; the District also acknowledges that prior to January 31, 2013, it failed to ensure that J.F. and A.B. were evacuated from New Rochelle High School during some evacuation drills conducted for the New Rochelle High School student body.”

In its complaint filed this week, the District is predicating its action on the claim that once the Fire Department arrived at the school and assumed control they were responsible for “all decisions relating to the detection of smoke and the safety of the students, faculty and support staff pursuant to their role as designated first responders”.

If it is determined that the decision not to evacuate the non-ambulatory students from the High School on January 31, 2013 and/or related actions/omissions was a violation of law, in this Federal litigation, then the Fire Department breached its duty to both Jennifer Feltenstein and the School District; the Fire Department’s instructions to District personnel and related acts, errors and omissions were the cause, in fact, of any violations.

The lawsuit claims that the Fire Department is the party responsible for the decision not to evacuate the non-ambulatory students from the High School on January 31, 2013 and therefore any damages, discrimination or violations of law are the result of the Fire Department’s negligence, acts, errors, omissions, and decisions at the scene.

The District lawsuit accuses the Fire Department of violations of the Americans with Disabilities Act which provides that:

Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. 42 U.S.C. § 12132.

The lawsuit notes that the Fire Department received federal funding and assistance. That Section 504 of the Rehabilitation Act of 1973 (the “Rehabilitation Act”) provides that:

No otherwise qualified individual with a disability in the United States, as defined in section 705 (20) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance 29 U.S.C. § 794.

And so, the Fire Department has a duty not to subject any individual with a disability to discrimination.

The City of New Rochelle did not respond to a request for comment but has previously stated it would not comment until it had seen the lawsuit.

Michael A. Miranda of Miranda Sambursky Slone Sklarin Verveniotis LLP, the lawyer for the District .did not reply to a request for comment.

LAWSUIT: Third Party Complaint NRFDvNRBOE (.pdf)