LINITED STATES COURT OF APPEALSFOR TI{E SECOND CIRCUIT________-:- ------x

CHRISTOPHER NOEL, SIMI LINTON,I-INITED SPINAL, a nonprofit otganization, TFIETAXIS FOR ALL CAMPAIGN, a nonProfitorgan\zation, 504 DEMOCRATIC CLI-IB' a

nonprofit organizalion, DISABLED IN ACTION,a non profit organization,

P I ainti ffs -Appe I I ee s,

-against-

NEW YORK CITY TAXI AND LIMOUSINECOMMISSION, a charter mandated agency, andDAVID YASSKY, in his official capacity as

chairman and commissioner of the New York CityTaxi and Limousine Commission,

Defendants- aPPell ants.

MOTION FOR STAY PENDING

Docket No. 12-41

MICI-IAEL A. CARDOZOCorporation Counsel/City of New YorkAttorney for Defendants-Appel lants100 Church StreetNew York, New York 10007(212)788-08 1 8/ 1o7o

TABLE OF CONTENTS

PRELIMINARY STATEMENT.

THE DISTRICT COURT ORDERENJOINING TLC FROM IMPLEMENTINGTFIE, CFIAPTER AMENDMENT SHOIILDBE STAYED PENDING APPEAL BECAUSEIT IS BASED ON AN ERRONEOUSREADING OF THE, ADA, EXCEEDS TI{ESCOPE OF THE COURT'S JURISDICTION,AND WILL CAUSE EXTREME FIARM TOTHE CITY.

A. Criteria For The Grant Of A Stay PendingAppeal

The District Court's Order'Was Premised On AMisreading Of Title II(A) Of The ADA That IsInconsistent With Title III Of The

Page

ARGUMENT

1

7

8

t7

7

B

ADA

The District Court's Order Improperly Included TheC.

D.

E.

HAIL Program

The City Will Be IrreParablOf 4 Stay Pending APPeal.

y Harmed Absent the Grant

15

The Grant of A stay Is In The Public Interest And willNot Harm Plaintiffs t9

PREL IMINARY ST

Defendants-Appellants New York City Taxi and Limousine

Commission and its Chairman David Yassky fiointly "TLC") move this Court

pursuant to Rule 8(a)(2) of the Federal Rules of Appellate Procedure ("FRAP") for

a stay pending appeal. Absent the grant of a stay, TLC cannot implement a

Chapter Amendment to the Laws of the State of New York of 2011 to be enacted

imminently (havingalready passed in the State Assembly) that will 1) bring in at

least one biltion dollars in revenue directly to the City of New York ("the City")

from the public auction of 2,000 wheelchair accessible taxicab medallions; 2) add

2,000 additional wheelchair accessible taxicabs to the existing medallion taxicab

fleet; and 3) establish a Hail Accessible Inter-borough License ("HAIL") program

whereby livery cars can for the first time lawfully respond to street hails in

northem Manhattan and the other four boroughs, with at least 20o/o of the HAIL-

licensed vehicles required to be wheelchair accessible.

The plaintiffs in this class action are thtee disabled individuals and

three advocacy groups for the disabled. In their January 20lI complaint, plaintiffs

contend that TLC's failure, as a regulator, to mandate that private taxicab owners

purchase or lease wheelchair accessible vehicles for use as taxicabs is a violation

of Subtitles A and B of Title II of the Americans with Disabilities Act ("ADA")'

plaintiffs so contend even though Congress has made its intent perfectly clear in

-1-

Title III of the ADA that private taxicab operators are exempt from the requirement

that they purchase or lease wheelchair accessible automobiles for use as taxicabs.

By memorandum decision and order (one paper) dated Decembet 23,

ZOll ("Order" lExhibit A to Binder Declaration]), the lJnited States District Court

for the Southern District of New York (Daniels, USDJ) granted summary judgment

to plaintiffs and issued a preliminary injunction against TLC pending the District

Court's approval of a remedy. Although the District Court recognized that TLC is

not itself a public transportation provider obligated to employ wheelchair

accessible vehicles under Title II(B) of the ADA, the District Court determined

that, by virtue of its regulatory authority over the private taxicab industry, TLC is

obligated under Title II(A) of the ADA to ensure that passengers in wheelchairs

have "meaningful access" to the taxicab system, notwithstanding the exemption

from accessibility requirements explicitly granted to private taxicab operators by

Congress in Title III of the ADA. (See 49 C.F.R. $ 37.29: "Providers of taxi

service are not required to purchase or lease accessible automobiles.")

The District Court ruled that TLC "must propose a comprehensive

plan to provide meaningful access to taxicab service for disabled wheelchair bound

passengers." Order at 77.. Moreover, having learned of an agreement between the

Governor, leaders of the State Legislature and the City regarding the Chapter

Amendment which was announced just one day before its decision was issued, the

.,

District court issued a preliminary injunction requiring that until a comprehensive'

meaningful access plan is "proposed and approved by the [District] Court' all new

taxi medallions sold or new [HAIL] licenses or permits issued by the TLC must be

for wheelchair accessible vehicles." Id. The injunction extended to the FIAIL

licenses even though they were nowhere referred to in the complaint'

ByNoticeofAppealdatedDecember2g,2ol1,TLCappealedtothis

court from the District court's preliminary injunction order, pursuant To 28 U'S'C'

$1292(aX1).OnJanuary4,}O|L,TLCmovedbeforetheDistrictcourtforastay

pending appeal pursuant to FRAP Rule 8(aX1XA), in light of the anticipated

chapter Amendment. The District court was informed that while TLC maintains

that federal law does not require TLC to impose stricter accessibility requirements

than those imposed by Title III of the ADA, the State of New York' having

determined accessibility to be a matter of state concern, was about to launch a plan

for meaningfur access in taxicabs and the newry created FlAll-licensed vehicles'

The Court was advised of the details of the agreed-upon Chapter Amendment'

which incrude requirements for additional accessibre vehicles and the submission

of a Disabled Accessibility Plan for approval by the New York state Department

ofTransportation(..StateDoT'')'Itwasalsoadvisedthatimplementationofthe

requirements of the chapter Amendment (and the substantiar increase in accessible

taxicabs provided for) wourd be stymied by the District court's injunction absent

-3 -

the grant of a stay. Nonetheless, the District Court denied TLC's motion for a stay

pending appeal by Order dated January 19,2012.

TLC now moves this Court for a stay pending appeal, pursuant to

FRAP Rule 8(a)(2). As explained below, TLC meets the requirements for the

grant of such relief. First, TLC is likely to succeed on appeal because the District

Court abused its discretion in granting apreliminary injunction. Title II(A) of the

ADA is applicable only to government services and programs. That taxicab

owners and operators are subject to TLC regulation does not transform the private

taxicab industry into a governmental program. This is all the more apparent

because Title III of the ADA contains separate provisions applicable to the private

taxicab industry. Indeed, the District Court's determination that TLC is required

by Title II(A) to impose accessibility requirements on private taxicab owners

contravenes the provisions of Title III and its regulations that explicitly exempt

private taxicab owners from accessibility requirements, See Part B, infra.

Moreover, the District Court exceeded its jurisdiction when it issued a

preliminary injunction with respect to the newly created HAIL license program.

As set forth in their complaint, plaintifß' claim under Title II(A) of the ADA is

that TLC is obligated to ensure, through regulation, that there are a sufficient

number of wheelchair accessible taxicabs for wheelchair-bound passengers to have

meaningful access to taxicab service. Plaintifß' complaint pre-dated the

-4-

establishment of the newly created HAIL license program, as did the parties' cross-

motions for summary judgment. Thus, the record before the District Court is

devoid of any evidence on the question of whether the legislative requirement that

20o/o ofthe HAll-licensed vehicles be wheelchair accessible meets the Title II(A)

,,meaningful access" standard erroneously found applicable by the District court'

To enjoin the launch of the HAIL program in the absence of such a record is an

abuse of discretion' See Part C, infra'

second,thecitywillbeirreparablyharmediftheDistrictcourt's

order is not stayed. Although all of the new taxicab medallions authorized by the

chapter Amendment will be limited to wheelchair accessible vehicres (consistent

with the District court,s preriminary injunction), the chapter Amendment provides

that the city cannot offer any accessible taxicab medallions for sale at public

auction until the FIAIL licenses are offered for sale' The District Court's

requirement that not just 20Yo, but all HAlI--licensed vehicles be wheelchair

accessible is untenable for the reasons discussed below and in the accompanying

declaration of David yassky, TLC Chairman ("Yassky Dec."). Enjoined by the

District Court,s order from launching the HAIL license program to be authorized

by the chapter Amendment, the city cannot sell anv accessible taxicab medallions

at public auction. As the market varue of each accessible medailion is estimated to

be at least $600,000, the District court's injunction prevents the city' which

-5-

already faces a multi-billion dollar budget shortfall, from obtaining a minimum of

one billion dollars in revenue. See Part D, infra'

Third, the grant of a stay will beneht the public interest and will not

harm the plaintiffs. The meaningful access program established by the Chapter

Amendment will add 2,000 wheelchair accessible taxicabs to the existing taxicab

fleet and more than one billion dollars in revenue to the City' In addition, the

HAIL license program will for the first time allow the lawful acceptance of street

hails by tivery cars for the protection of passengers and will require that 20o/o of the

vehicles in the program be wheelchair accessible. Moreover' the Chapter

Amendment will require TLC to submit for approval by State DOT, within one

year of the launch of the FIAIL license program, a Disabled Accessibility Plan that

,,will lead to meaningful accessibility over a period of years for individuals with

disabilities to all taxicabs, for-hire vehicles and HAIL vehicles through a gradual

phase-in of accessible vehicles to the taxicab, for-hire vehicle and HAIL vehicle

transport system ...." chapter Amendment fsee 4.8691A, Exhibit I to Binder

Declaration], $ 10. Accordingly, a stay of the District Court's injunction will

enable the City to glean substantial necessary revenues while at the same time

allowing the launch of a program designed to provide passengers in wheelchairs

with meaningful access to taxicabs and other for-hire vehicle service in the City'

See Part E, infra.

-6-

NT

THE DISTRICT COURT ORDERENJOINING TLC FROMIMPLEMENTING THE CHAPTERAMENDMENT SHOULD BE STAYEDPENDING APPEAL BECAUSE IT ISBASED ON AN ERRONEOUSREADING OF THE ADA, EXCEEDSTHE SCOPE OF THE COURT'SJURISDICTION, AND WILL CAUSE

THE

A. Criteria For The Grant Of A Stay Pending Appeal

In considering whether to issue a stay of an order of a District Court

pending appeal,this Court must consider four criteria: the likelihood of success on

appeal, irreparable injury if a stay is denied, substantial injury to the party

opposing a stay if one is issued, and the public interest. Mohammed v. Reno, 309

F.3d 95, 100 (2d Cft.2002), citing Hilton v. Braunskill ,487 U.S. 770 (1987)'

Adopting an approach previously expressed by other Circuits, this

Court ruled in Mohammed that "[t]he necessary 'level' or 'degree' of possibility of

success will vary according to the court's assessment of the other [stay] factors."

309 F.3d at 101, quoting

Tours. Inc. , 559 F.2d 841, 843 (D.C. Cir. 1977). Thus, the grant of a stay pending

appeal is appropriate "where the probability of success is 'high' and 'some injury'

has been shown," and conversely, "'where the likelihood of success is not high but

the balance of hardships favors the applicartt," Id. (citations omitted).

-7 -

In other words, "[t]he probability of success thal must be

demonstrated is inversely proportional to the amount of irreparable injury plaintiff

will suffer absent the stay. Simply stated, more of one excuses less of the other'"

Mohar4med , 30g F.3d at 101 (citation omitted); see also Ofosu v' McElroy' 98

F.3d 694, 703 (2d Cir. 1996) (four stay factors "weighed")' Here' both the

likelihood of success on appeal and the degree of injury are high' Indeed' all of the

factors weigh in favor of a stay pending appeal'

Weturnfirsttolikelihoodofsuccessonappeal.Thegrantofa

preliminary injunction is reviewed under the "abuse of discretion" standard.

da on N.Y 645 F.3d 154, 164 (2d Cir' 2011)' "A court

abuses its discretion when '(1) its decision rests on an errol of law (such as the

application of the wïong legal principle) or a clearly erroneous factual finding' or

(2) its decision-though not necessarily the product of a legal effor or a clearly

erroneous factual finding-cannot be located within the range of permissible

decisions."' ' 663 F'3d 59 (2d Cfu' 2011)' quoting

v. Citv of New ork. 435 F.3d 78, 88-89 (2d Cft' 2006)' Here'

the District court's preliminary injunction order was an abuse of discretion for two

reasons: it was premised on a legal eÏÏor' and it improperly included the newly

established HAIL program - which was not part of this case or the record before it.

B. The District court's order was Premised on A Misreading of Title

II(A) Of The ADA That Is Inconsistent \ilith Titte III Of The ADA

-8-

TLC is an administrative body that was established by Chapter 65 of

the New York City Charter ("City Charter") to regulate the private taxicab industry

and other for-hire vehicle industries in New York City by way of licensing

requirements and regulations addressed to the standards and conditions of service.

City Charter $$ 2300,2303. In this regard,local law requires that taxicab owners

and drivers obtain licenses from TLC and adhere to applicable regulations for

licensees adopted by TLC, including specifications for vehicle models. New York

City Administrative Code ("Admin. Code") $ 19-504; 35 R.C.N.Y. $ 67-3-03(b).

Licensed taxicabs are known as "medallion taxicabs" because each

vehicle has been issued a metal plate, known as a medallion; displaying the license

number of the vehicle. Admin. Code $ 19-502(h). The number of medallion

taxicabs is limited by law. There are currently 13,237 medallion taxicabs licensed

by TLC. Currently, 231 taxicabs are required by state and local law to be

wheelchair accessible (although the holders of unrestricted medallions may use a

wheelchair accessible taxicab). As noted above, the agreed-upon Chapter

Amendment will authorize the issuance and sale of 2,000 new medallions, all of

which will be restricted to wheelchair accessible vehicles, resulting in an

accessibility requirement for approximately l5Yo of the fleet.

Subtitle A of Title II of the ADA provides that "no qualified

individual with a disability shall, by reason of such disability, be excluded from

-9 -

parl\cipation in or be denied the benefits of the services' programs' or activities of

a public entity, or be subjected to discrimination by such entity'" 42 U'S'C'

çl2l32.TherelevantmeasureunderTittell(A)iswhetherindividualswith

disabilities can achieve ,,meaningful access" to government benefits, services and

programs. Henrietta D v. Bloomberg, 33 1 F'3d 26|,27 5 (2d Cir.2003).

The District court determined that Title II(A) requires TLc' as a

regulator of the private taxicab industry, to require that private taxicab operators

utilize wheelchair accessible vehicles so as to provide disabled passengers with

,,meaningfur access,, to taxicab service. This determination is clearly erroneous'

Insofar as TLC is a public entity that regulates the private taxicab industry through

licensing, Title II(A) of the ADA simply requires that TLC administer its licensing

and reguratory authority in a manner that does not discriminate against licensees

who qualiff for ADA protection. Indeed, the regulations adopted by the united

States Department of Justice to implement subtitre A of ritre II make clear that the

applicationofsuchproscriptiontolicensingagencies

administration of the regulatory programs themselves:

A public entitY may not administer a licenslng or

certification Program lna manner that subjects qualified

individuals with disabilities to discrimination on the basis

of disabilitY, nor may a public entitY establish

requirements for the programs or activities of licensees or

certified entities that subject qualified individuals withdisabilities to discrimination on the basis of disabilitY.

of

is limited to the

The or viti-10-

ES that are licensed or

lic arebv this part.

28 C.F.R. $ 35.130(bX6) (emphasis added). See also Reeves v' Queens City

10 F. S.rpp. 2d lISl (D. Colo. 1998) (regulatory agency's issuance ofT .. Inc

certification to allegedly discrimin atory private company providing public

transportation does not implicate Title II of the ADA); Tyler v. city of Manhattan,

g4g F. Supp. l42g (D. Kan. Igg4) (city's issuance of licenses and permits for

facilities that were not accessible to disabled persons does not violate Title II).

That Title II(A) is applicable only to TLC's exercise of its licensing

and regul atory authority is made clear in Reeves, which quotes from DOJ's Title II

Technical Assistance Manual, as follows:

examinations in accessible locations. '..

10 F. Supp. 2d aT 1186.'

' In this regard, as noted in Reeves, !l:¿æ, DOJ's Title II Technical Assistance

Manual sets forth the following illustration:

ILLUSTRATION: A State prohibits the licensing oftransportation companies that employ individuals withmissing limbs as drivers . xYZ company refuses to hirean individual with a missing limb who is "qualified" to

- 11-

Moreover, the District Court's reading of Title II(A) of the ADA as

requiring TLC to mandate, through regulation , Íhaf private taxicab vehicles provide

meaningful access to passengers in wheelchairs cannot be reconciled with Title III

of the ADA. Applicable to private entities providing transportation services, Title

III of the ADA explicitly provides that taxicab operators are exempt from any

requirement that they purchase or lease wheelchair accessible automobiles. See 42

U.S.C. g 12184(bX3) (limiting accessibility requirements for private entities to the

purchase or lease of certain vehicles "other than automobiles"). This exemption is

clarified in the United States Department of Transportation regulations

implementing Title III, as follows:

(b) Provi uired toor lease accessible automobiles. 'When a provider of taxiservice purchases or leases a vehicle other than anautomobile, the vehicle is required to be accessible unlessthe provider demonstrates equivalency as provided in$ 37.105 of this part. A provider of taxi service is not

to obiles innrr{er fn hqr¡e q nrrrnher n Ae.cessible vehicles in its fleeff

49 C.F.R. ç 37.29 (emphases added). See also Toomer v, Disabled Rights Action

Committee, 443 F.3d 1191, 1195 (10th Cir. 2006) ("The ADA does not mandate

that all private transportation entities provide accessible vehicles-a taxi fleet

perform the essential functions of the job, because he isable to drive safely with hand controls. The State'slicensing requirements violate Title II.

-t2-

consisting entirely of non-accessible vehicles would be in accord with the ADA,"

citing 42 U.S.C. $ 121 84(bX3)).2

It is therefore apparent that the District Court's conclusion that Title

II(A) of the ADA applies to TLC here is erroneous. While taxicab operation is

subject to strict regulatory oversight by TLC, taxicabs are owned and operated by

private entities, which are not carrying out a government program but are simply

engaging in a private business subject to federal, state and local regulation.3 Title

II(A) cannot be read to hold the private taxicab industry to a higher standard

simply because it is subject to a comprehensive regulatory scheme adopted by a

public entity. 'Were that the case, then the Title III exemption for taxicabs would

be meaningless, as the taxicab industry is heavily regulated throughout the country.

See. e.g., Minneapolis Taxi Owners Coalition v. City of Minneapolis, 572 F.3d

502, 5Og (8th Cir. 2009) (discussing the "highly regulated taxicab market" in

, While Title III of the ADA exempts automobiles from accessibility requirements,it provides that new vans purchased or leased by private taxicab operators must bewheelchair accessible (unless equivalent service is provided). 42 U.S.C.$ 12184(bX3),(s),49 C.F.R. $ 37.29(b).

3 Courts in this Circuit have repeatedly recognizedthat the "New York City taxicabindustry is a private industry, closely regulated by [TLC]. Friedman v. GMC,72lF. Supp.2d 218,by the [TLC],"

220 (S.D.N.Y. 2010). The "taxi industrytatharos v. Taxi &

is pervasively regulated198 F.3d 317, 324 (2d

Cir. 1999). Indeed, all for-hire transportation in New York State is regulated eitherby the State itself or by municipalities within the State. See N.Y.S. TransportationLaw $$ 150, 151(11) (goveming vehicles operated as "afaxi or livery service"subject to "the jurisdiction or regulatory control of a city, town or village").

- 13 -

Minneapolis); In re Las Vegas Monorail Co. , 429 B.R. 770,785-86,2010 Bankr.

LEXIS 2285, *38-39 (D. Bankr. Nev. Apr.26,2010) ("fP]ublic control, regulation,

or oversight simply does not, by itself, make an entity a public agency. Otherwise,

heavily regulated industries, such as casinos and taxicabs, would be

municipalities."); Mazanderan v. Ind. Taxi Owners Ass'n,700 F. Supp. 588, 590

(D.D.C. 19SS) (discussing taxicabs in Washington D.C. as highly regulated).

Indeed, the District Court rejected plaintiffs' claim under Title II(B)

of the ADA, which was premised on the assertion that TLC's regulatory control

over the private taxicab industry made TLC a transportation provider,a not only

because TLC is clearly not a transportation provider, but also because plaintiffs'

reading of Title II(B) cannot be reconciled with Title III. See Order at 12 ("Title

III cannot be read as exempting taxicab owners from any requirement that they

purchase wheelchair accessible automobiles, but at the same time have intended

that subtitle B of Title II impose such a personal obligation based solely on the

extent of the control of the public regulatory agency.") However, it is equally clear

n Subtitle B of Title II of the ADA requires that public entities operatingtransportation systems purchase or lease wheelchair accessible vehicles unlessequivalent service is provided. See 42 U.S.C. ç I2I44. In addition to contendingthàt TLC is required to ensure "meaningful access" to private taxicab service underTitte II(A), plaintifß contended that, by virtue of its comprehensive regulatoryauthority, TLC is essentially the operator of the taxicab system (notwithstandingthat taxicabs are privately owned), and thus is subject to the requirements of TitleII(B). The United States Department of Justice filed a Statement of Interestsupþorting plaintiffs' motion for summary judgment on their Title II(B) claim.

-14-

that the District Court's Title II(A) analysis cannot be reconciled with the

provisions of Title III of the ADA. Indeed, any reading of Title II(A) that requires

TLC to mandate, by regulation, that all or some private taxicab operators purchase

or lease wheelchair accessible vehicles is inconsistent with Title III's explicit

exemption of private taxicab operators from such a requirement.

C. The District Court's Order Improperly Included The HAIL Program

Aside from the fact that the District Court order is based on an error of

law, the District Court abused its discretion when it issued a preliminary injunction

constraining the launch of the yet to be established HAIL license program unless

every licensed vehicle is wheelchair accessible. Even if it were not erroneous, the

District Court's determination that TLC has violated the ADA by failing to require

more accessible taxicabs to date would not be a proper basis for an injunction

regarding the newly created HAIL license program.

The genesis of the HAIL license program is as follows, Pursuant to

local law, drivers of liveries, black cars and limousines (referred to in the

Administrative Code as "for-hire vehicles") are required to obtain licenses from

TLC. Admin. Code $ 19-504. But unlike medallion taxicabs, they are not

permitted to accept street hails but are permitted to pick up passengers only by pre-

arrangement. Admin. Code $ 19-504(aX1), Nonetheless, because of the dearth of

yellow taxicab service in northem Manhattan and the four other boroughs, many

-15-

for-hire vehicle drivers have been illegally responding to street hails for many

years without regulatory oversight. So as to legalize this longstanding sector of the

economy, regulate this service for the protection of the passengers, and al the same

time provide for accessible for-hire vehicles, the Chapter Amendment authorizes

TLC to issue 18,000 FIAIL licenses over a three-year period, with 6,000 to be

issued at the start of each year. Chapter Amendment, $ 5. Moreover, 20yo of the

FIAIL licenses must be restricted to wheelchair-accessible vehicles: for each block

of 1,000 HAIL licenses sold, 200 must be for accessible vehicles. Id.

Because their complaint and summary judgment motions preceded the

establishment of the HAIL license program, plaintiffs have neither alleged, nor

sought to establish, that the HAIL program's 20o/o accessibility requirement is

insufficient to give disabled passengers meaningful access to the HAIL system.

The complaint alleges, and the District Court found, that TLC is obligated to

ensure that more than231 medallion taxicab (1.7% of the fleet) be accessible. The

complaint makes absolutely no reference to accessibility issues with respect to

regulated vehicles other than medallion taxicabs, and the certified class is limited

to "all persons using wheelchairs or scooters .., who seek to use New Ygrk City

medallion taxis." Binder Dec., Exhibit C (emphasis added). Thus, the District

Court, without any legal or factual submissions of any kind, preliminarily enjoined

the launch of the FIAIL program without determining that the 20o/o accessibility

-16-

requirement is insufficient to provide disabled passengers with meaningful access

to HAIL vehicles (the Title II(A) standard erroneously applied here). Absent a

finding, after review of the evidence, that Íhe 20Yo accessibility requirement

applicable to the HAIL program is insufficient to provide meaningful access, the

District Court's order enjoining the launch of the HAIL license program unless

100% of the I{AIL fleet is accessible was patently improper.

D. The Cify Will Be lrreparably Harmed Absent the Grant Of A StayPending Appeal.

The District Court's order, unless stayed, will cause the City

irreparable injury by depriving it of at least one billion dollars. The Chapter

Amendment will authorize the issuance of 2,000 additional accessible medallions

which will increase the number of accessible taxicabs from less than ZYo to

approximately I5Yo of the taxicab fleet. As each medallion is expected to sell at

public auction for at least $600,000, the City will garner at least one billion dollars

through the sale of 2,000 additional wheelchair accessible medallions. Yassþ

Dec., ffi 22-27. TLC is not seeking to issue any new non-accessible medallions

and thus has no objection to the District Court's order insofar as it limits the

issuance of new medallions to accessible vehicles. However, TLC is not

authorized to sell any new medallions until it begins to sell the FIAIL licenses (see

Chapter Amendment, $ 8), and thus the District Court's improper inclusion of the

HAIL license program in its order effectively prevents the medallion sale.

-17 -

Because the District Court has improperly enjoined the HAIL

program, TLC cannot launch that program unless every licensed FIAIL vehicle is

accessible absent approval by the District Court of an accessibility plan. This

means that, in the short run, rather than immediately offering for sale 1,000 HAIL

permits, 200 of which are accessible, TLC cannot sell any non-accessible HAIL

permits. In other words, a HAIL permit for an existing non-accessible for-hire

vehicle cannot be obtained, even where that vehicle is perfectly operational and not

in need of replacement. Given the economics of the for-hire vehicle industry,

which is not nearly as lucrative as the yellow taxicab industry, it is likely that many

existing for-hire vehicles picking up illegal street hails will continue to do so,

rather than opting into a licensing program that will require the purchase of a new

vehicle. Yassþ Dec, 1T'll 19-20. Thus, if this Court does not stay the District

Court's order pending appeal, TLC will be required to chose between launching a

licensing program in which few people will participate, or not launching the

program until such time as the Court approves an accessibility plan, thereby both

letting the problem of unregulated street hails continue unabated and preventing

the addition of the accessible liveries contemplated by the program.

Accordingly, since the District Court Order will prevent the launch of

the HAIL program authorized by the Chapter Amendment, which must be initiated

before there can be a public auction of 2,000 new medallions expected to garner

- 18 -

over a billion dollars in revenue, the City will be irreparably injured absent a stay

Indeed, the harm to the City is neither remote nor speculative, nor can the City

obtain recompense through thi's lawsuit. See, e.g.. J v. H.P

Hood & Sons. Inc. , 596 F .2d 70, 72 (2d Cir. I 979).

E. The Grant Of A Stay Is In The Public Interest And Will Not HarmPlaintiffs

Finally, the public interest will be served by the grant of a stay

pending appeal. The grant of a stay will allow TLC to sell additional accessible

medallions, which will both significantly increase the number of accessible

taxicabs and garner more than one billion dollars in revenue for the City. TLC will

not be prevented from launching its HAIL program which will legalize and

regulate what is now an underground industry, provide a much needed service to

the areas of the City without medallion taxi service, and at the same time provide

for a signihcant number of wheelchair-accessible FIAIL vehicles.

Moreover, TLC cannot issue more than 6,000 HAIL licenses nor sell

more than 400 accessible medallions until TLC obtains approval from State DOT

for a Disabled Accessibility Plan that will include an analysis of whether additional

taxicabs and HAIL vehicles are required in order to give meaningful access to

passengers in wheelchairs. Chapter Amendment, $$ 6, 8, Yassky Dec, \n 13,26.

Indeed, given that the Chapter Amendment sets forth a legislative plan that will not

only greatly increase the number of accessible taxicabs and for-hire vehicles on the

-19-

city streets but ensure, under the supervision of a state agency, meaningful access

to disabled passengers, plaintifß cannot seriously suggestlhafthey will be harmed

by the granl of a stay pending appeal.

Accordingly, TLC respectfully requests that this Court stay the

District Court's injunction order pending appeal so that TLC is not required to

submit an access plan to the District Court pursuant to an injunction order that will

likely be reversed on appeal. In the alternative, TLC asks that this Court modify

the District Court's order to exclude the reference to "street hail livery licenses" as

outside the scope of this litigation. That would allow TLC to launch the HAIL

program as contemplated in the agreed-upon Chapter Amendment, and to issue

new accessible taxicab medallions for sale at public auction, but still would require

TLC to submif a plan to the District Court with respect to meaningful access

independent of the submission of such a plan to state DOT.

Dated: New York, New YorkJanuary 26,2012

MICHAEL A. CARDOZOCorporation Counsel, City of New YorkAttorney for Defendants-Appellants100 Church StreetNew York, New York 10007(2r2) 788-0818

By:

-20-

ROBIN BINDER