A New Breed of Lawyers Focuses on Bicyclists’ Rights

By: J. David Goodman

THE NEW YORK TIMES

Christian Hansen for The New York Times

One recent day, the lawyers there parsed bike-law issues, like “dooring zones” and when is it legally acceptable to ride outside a designated lane, while downstairs, each of their bikes were expertly locked to a scaffold along Broadway in TriBeCa.

The small firm is preparing to bring a class-action suit against New York City on behalf of cyclists over summons handed out for what it contends are phantom violations — bike behavior that it says is not illegal in the city. It is another sign that New York’s bike fights are moving from the streets to the courtroom.

When it comes to bike law, it seems, the wheels of justice no longer grind slowly. Since a ticketing blitz early this year, cyclists in New York have faced stepped-up police enforcement of red-light and other, less-obvious rules, like having adequate lights or not riding with earphones in both ears.

Add to that a highly publicized lawsuit challenging a bike lane along Prospect Park West in Brooklyn, thrown out by a judge last week, and bike law can seem like a growing opportunity for lawyers who make bikes their business.

In addition to Rankin & Taylor, the New York bike bar includes Adam D. White, a Manhattan lawyer who regularly commutes to work by bicycle and has represented injured cyclists, and Gideon Orion Oliver, an East Village lawyer who has represented cyclists involved with the Time’s Up rides that have frequently resulted in clashes with the police.

Bike rules are a surprisingly tangled area of the law. The city’s myriad regulations have confused unsuspecting riders and have occasionally tripped up even the police officers responsible for enforcing them.

Cyclists have reported being ticketed for equipment violations like riding without a bell. A bell is required by law — though an unscientific street survey indicated that, for many riders, their voices are their only warning systems. Others have been ticketed for riding without a helmet (not required for adults), and in one widely reported case, for riding with a purse hung over the handlebars. A Police Department spokesman later said the summons should not have been issued. The department did not respond to an e-mail seeking comment on the helmet violation.

Many cyclists are confused about their rights, which is where the new breed of bike lawyers comes in. One common question: are cyclists required to ride in a bike lane if one is available?

“There are 101 reasons that a cyclist might be outside of a bike lane,” said Steve Vaccaro, an avid cyclist and a lawyer at Rankin & Taylor. But aside from the obvious ones — to avoid a hazard or obstruction — it’s “highly contextual,” he added.

For example, it is legal to leave the bike lane to make a turn, and cyclists are allowed to prepare to make a turn by getting to the appropriate side of the street. But just where one can move out of the lane — 50 yards away, or two blocks, perhaps — is not specified.

While it is a good idea to be aware of the rules, he said, a rider would still have to explain the reason in court if ticketed.

That is Peter McCormick’s plan. He said he would contest in traffic court next month a ticket for running a red light in Central Park.

Bike lawyers were not optimistic about his chances. “In red-light cases, there’s not a lot you can do to get a cyclist off,” Roger Goldfinger, a lawyer at Rankin & Taylor, said. But he noted that cyclists should not pay the hefty surcharge, included in the total fine, that applies only to motor vehicles.

A spokesman for the New York State Department of Motor Vehicles confirmed that the fine indicated on a red-light ticket includes $80 in surcharges and fees that do not apply to bikes. Cyclists should pay only $190.

While the mundane details of traffic rules can create the most confusion, most cyclists do not need a lawyer to fight a ticket, but might need one if they are hurt by a vehicle

“For those people who think it can’t happen to them — I have a file of a person it happened to,” said Scott Charnas, a personal-injury lawyer who has represented many New York cyclists. He formed a relationship a decade ago with Bob Mionske, a West Coast bike lawyer and Bicycling Magazine columnist, who recommends Mr. Charnas to New York riders.

Mr. Charnas’s current clients include a delivery cyclist severely injured by a passing car. “In that case, the rider turned away to avoid the opening door and was then hit by a car,” he said. The deliveryman had a broken leg and other injuries, Mr. Charnas said, and will never be able to ride a bike again.

The accident highlights what can happen in the so-called dooring zone, the area next to a vehicle where its door could hit a passing cyclist. The lawyers at Rankin & Taylor also represent bike riders in personal-injury cases. But suing the city to make it more cycling-friendly, they said, could help prevent such injuries and ensure that cyclists are treated equally on the road.

“It’s not unrealistic to enforce traffic laws,” Mr. Vaccaro said. But he contends that the police have been issuing tickets based on sections of the state’s traffic law — for example, requiring riders to keep right or preventing them from riding two abreast — that he said do not apply in New York City. This is the basis of the class-action suit.

Paul J. Browne, the department’s chief spokesman, disputed that tickets were handed out in error. “Police officers write summonses for observed violations,” he said. “Although some cyclists are surprised to discover it, they must comply in most instances with the same rules that apply to motorists.”

Regardless of how the planned suit turns out, does taking a legalistic view of cycling sap its fun?

Not for Mr. Vaccaro. He recently quit a large corporate firm after 14 years to join the firm of David Rankin and Mark C. Taylor, two former Portland, Ore., bike messengers who kept their passion for biking after moving into the law.

“I’m doing it full speed ahead,” Mr. Vaccaro said of his bike work.

Mr. Rankin chimed in: “Of course, we’d all rather be outside.”

NYPD Ordered to Turn Over Additional Police Records

Rankin & Taylor attorney Robert Quackenbush was successful in getting this decision from New York Supreme Court Justice Sylvia Ash ordering the NYPD to produce additional records regarding prior misconduct by the officers involved in assaulting our client Joel Zabala.

The New York Law Journal covered the decision in this front page article:

Law Department Told to Review Assertion of Privilege for Police Records

New York Law Journal                                                July 15, 2011

Daniel Wise

A Brooklyn judge has ordered the Corporation Counsel’s Office to re-examine its practice of routinely asserting blanket privilege claims in defending police brutality cases.

That approach misapprehends the role of the court and burdens it with the “toilsome task” of deciding which documents should be subject to disclosure, said Supreme Court Justice Sylvia G. Ash (See Profile) in Zabala v. City of New York.

The ruling came in response to a request for records compiled by the New York City Civilian Complaint Review Board (CCRB) in a lawsuit brought by Joel Zabala, who claims he suffered brain damage from a police beating in 2009.

The Corporation Counsel’s Office made a “pro forma” objection to the disclosure of the entire file as it does in the majority of cases where sensitive personnel information may be involved, Justice Ash wrote.

“The Court’s role is to resolve issues,” she added, “not find issues to resolve.”

Finding New York City’s approach to be detrimental, Justice Ash directed the Law Department “to examine its practice and make appropriate changes.”

Mr. Zabala also sought the records of the New York City Police Department’s internal affairs bureau. He asked both agencies for files relating to any investigation of complaints against three officers concerning the use of excessive force in the last 10 years.

The review board has produced its records relating to substantiated instances of excessive use of force for Justice Ash’s inspection, but the internal affairs bureau is still gathering its information.

Justice Ash ordered the city to turn over for discovery, with one exception, all the review board records she has reviewed.

Richard D. Emery, a veteran plaintiffs’ civil rights litigator, said the city “routinely raises blunderbuss objections to block discovery of personnel records of officers against whom brutality claims are raised.”

But, he added, the responses of state judges vary, with some ordering the records to be produced in wholesale fashion and others conducting “a very focused examination to determine whether CCRB records have probative value.”

Some judges will consider that a review board finding that an officer was disrespectful to a citizen as probative of a brutality claim, while others will not, said Mr. Emery, a partner at Emery Celli Brinckerhoff & Abady.

A Chase Acknowledged

According to his complaint, Mr. Zabala, knowing that he did not have a valid driver’s license, did not respond when a police car, with its lights flashing and siren on, tried to pull him over in Bushwick, Brooklyn, on the afternoon of March 8, 2009.

After being pursued for several blocks, Mr. Zabala stopped and exited his vehicle. Mr. Zabala alleged the police car pulled up alongside his Ford Explorer, hitting him and knocking him to the ground. Mr. Zabala claims he fled and was subsequently surrounded by officers as he attempted to hide under a parked car. He said one of the officers hit him three times with a radio and others kicked him, resulting in extensive facial injuries that resulted in his being hospitalized for eight days.

Mr. Zabala’s lawyer, Robert M. Quackenbush, said in an interview that the blows left his client with permanent brain damage, causing him to suffer seizures.

Asserting a federal civil rights claim under 42 U.S.C. §1983 and state tort claims, Mr. Zabala sued three NYPD officers and New York City.

In discovery, Mr. Quackenbush, of Rankin & Taylor, sought records compiled by internal affairs and the complaint review board relating to investigations over the last 10 years of claims that the three officers had used excessive force.

Internal affairs has yet to turn over its records to the city’s lawyers, but Justice Ash, who is in charge of tort cases against New York City filed in Brooklyn, ordered that civilian complaint review board records be given to Mr. Zabala within 45 days.

“It is not enough for the City to simply turn over the files to the Court, which usually consist of hundreds of pages of documents, and expect the Court to go through each document to determine what information is privileged, highly sensitive or not subject to disclosure,” the judge wrote.

The sole exception she made in her order was for 11 pages from a review board file relating to a complainant’s medical records.

New York City and the three officers were represented by Assistant Corporation Counsel Katherine M. Frank. An office spokeswoman said the decision is being reviewed.

Our Associate Roger Goldfinger is the unnamed “attorneys” mentioned in this article for his great work representing  The New York Compost Company.

Why Composting Still Vexes New York

Wall Street Journal                                April 26, 2011

By Aaron Rutkoff

New York generates no small amount of food-based garbage. The local rats seem quite capable of eating their fill. But the biggest city in the U.S. has had no luck implementing a large-scale composting regime.

A story in Tuesday’s Journal looks at a logistical hurdle hampering the biggest city-sponsored composting effort so far. With no local facility capable of handling the tons of kitchen scraps collected at seven of the city’s 54 Greenmarkets, the pilot program is forced to truck New Yorkers’ decaying food waste some 125 miles to Delaware — hardly the greenest of all possible outcomes.

Transportation costs eat into composting funds: GrowNYC, the nonprofit overseeing the composting, spends about one third of its budget moving coffee grounds, veggie bits and other leftovers out of state. And small-scale composting centers like the Lower East Side Ecology Center are at capacity.

Portland, Toronto and San Francisco have also been forced to truck material collected in municipal composting to remote locations, but those cities have surpassed New York by organizing citywide collection systems. For the Big Apple, the push for more comprehensive composting tends to open cans of worms.

First, there’s the gross-out factor. Robert Lange, director of waste reduction at the New York City Sanitation Department, warned municipal officials in Vancouver last month that apartment dwellers will resist composting programs. As the Vancouver Sun reported:

Lange noted it’s difficult to get buyin from the 65 per cent of multi-family residences in the city, mainly because they have no place to store recyclables, let alone compost, and can dump the trash anonymously down garbage chutes with little chance of being caught. “Though we have made tremendous strides, we’ve reached a plateau in the participation of our residents,” he said. “There is a desire but the convenience is compromised.

“Convenience is the overriding factor. Recycling is not easy for a lot of people, especially those living in multi-family residences.”

That knowledge comes from no small amount of experience. A series of experiments conducted in the 1990s found that, even when you can get New Yorkers to participate, collection is inefficient, impractical and very expensive — so much so that sanitation officials concluded a centralized system probably wouldn’t work in New York City.

Even entrepreneurial startups developing composting schemes outside of the city bureaucracy have been stymied. Adam Gordon is part of the New York Compost Company, a group that raised seed money through Kickstarter, a crowd-sourcing website, to take the expensive-to-operate garbage trucks out of the equation. The idea: build special bicycles to haul food scraps from participating restaurants directly to the farmers who sell produce at New York’s Greenmarkets and to community-supported agriculture groups. The farmers would then bring the compostable material back to their farms.

The bicycles have been built and restaurants have signed on, but Gordon said his group hasn’t been able to launch the pilot program because of regulatory hurdles. “As our lawyers have told us, to pick up from businesses you have to get permits,” he said. “And it’s just so exorbitant that we haven’t been able to do it.”

Even if Gordon’s group secures the permits needed to pick up scraps from restaurants, other city rules governing the storage of waste make their program “all but impossible to do in the city,” Gordon said. “We thought we could just get moving with it, but it has been one hurdle after another.”

Still, there is hope that things might change. The latest version of the Bloomberg administration’s PlaNYC, released last week, outlines specific composting policies that the city should embrace and acknowledges that “participation in commercial composting efforts remains limited.”

“They are aware of the problems,” Gordon said of city officials. “The composting infrastructure in the city is sorely lacking. The rules and regulations need to change.”

Corrections & Amplifications: Composting material is collected at seven of New York City’s 54 Greenmarkets. An earlier version of this post incorrectly stated that all Greenmarkets participate in the composting pilot program.