Eastern Paralyzed Veterans Ass'n v. Metropolitan Transportation Authority

Order, Supreme Court, New York County, entered March 17, 1980, denying defendants’ motions to dismiss the. complaint insofar as it alleged violations of subdivision 9 of section 292 and section 296 (subd 2, par [a]) of the Executive Law, modified, on the law, by declaring that the defendants have not engaged in unlawful discriminatory practices in violation of those statutes, and, as modified, affirmed, without costs. Plaintiff Eastern Paralyzed Veterans Association is a not-for-profit corporation with a membership of disabled veterans, plaintiff Peters is the association’s executive director. Plaintiffs seek both declaratory and injunctive relief on the theory that the defendants had engaged in unlawful discriminatory practices in violation of subdivision 9 of section 292 and section 296 (subd 2, par [a]) of the Executive Law. Specifically, the plaintiffs allege that the defendants have unlawfully failed to buy buses and to construct terminals which provide access to wheelchair-bound and semiambulatory persons. Special Term, relying upon recent Federal legislation and case law, denied defendants’ motions to dismiss. That 517 court found that the defendants must employ “special efforts” in giving the disabled more than equal treatment under section 296 (subd 2, par [a]) of the Executive Law. (103 Misc 2d 933.) As the plaintiffs aptly emphasize in their brief, the complaint is grounded solely on a violation of the New York State Human Rights Law: no Federal claim is made in the complaint. Therefore, it is unnecessary to determine whether the complaint states a cause of action against the defendants for a breach of Federal law or policy. It is a general rule of construction that omissions in a statute, where the act is clear and explicit in its language, cannot be supplied by construction. A court should not attempt to fill up or cure a casus omissus by supplying what it thinks should have been put there by the lawmakers. (Jablon v City of New York, 177 Misc 838, 841, affd 268 App Div 859, mot for lv to app den 268 App Div 1026; see, generally, McKinney’s Cons Laws of NY, Book 1, Statutes, § 74.) Where the Legislature has wished a particular State agency to take “affirmative action” on behalf of the disabled or handicapped, it has so stated in unambiguous terms. Contrary to the conclusion reached by Special Term, we find no indication in the language of section 296 (subd 2, par [a]) of the Executive Law that the defendants must make “special efforts” or take “affirmative action” to accommodate the disabled. Simply stated, the defendants are prohibited under section 296 (subd 2, par [a]) of the Executive Law from discriminating against the plaintiffs in places of public accommodation (Executive Law, § 292, subd 9) because of a person’s disability (Executive Law, § 292, subd 21; cf. Southeastern Community Coll. v Davis, 442 US 397, 410, 411). Upon this motion to dismiss in this action for declaratory judgment, it is proper for this court to deny the motion and to make a declaration upon the merits (Boryszewski v Brydges, 37 NY2d 361, 368). Accordingly, we declare that the defendants have not engaged in unlawful discriminatory practices in violation of subdivision 9 of section 292 and section 296 (subd 2, par [a]) of the Executive Law. Concur—Murphy, P. J., Birns and Lupiano, JJ.