JOHN KAEHNY, being duly sworn, deposes and says:

1. I am the Executive Director of T.A., a pedestrian advocacy organization, and am not a party to this action. I submit this Affidavit at the request of counsel for plaintiffs Melvyn Kaufman and Sage Realty Corporation ("Sage") (collectively, "Plaintiffs"), in opposition to the motion for summary judgment of defendants The City of New York ("New York City"), Rudolph Giuliani, as Mayor of New York City (the "Mayor"), the New York Police Department (the "Police Department"), and Howard Safir, as Commissioner of the Police Department (the "Commissioner") (collectively, the "City"). I also respectfully refer this Court to my Affidavit, sworn to on July 22, 1998, which I submitted in this action as part of a supplemental submission at the Court's request relating to reasonable modifications in support of Plaintiffs' motion for a preliminary injunction, and my Affidavit, sworn to on November 18, 1998, which I submitted in this action in opposition to the City's motion to dismiss.

2. Transportation Alternatives ("T.A.") was founded in 1973 and is the largest pedestrian advocacy organization in the United States. T.A. advocates the development of better conditions for pedestrians in New York City and presents solutions to improve New York City's infrastructure for all pedestrians and non-motorists through traffic engineering, public education and increased police enforcement. As the Executive Director of T.A., I work with elected officials, officials from the New York City Department of Transportation ("DOT"), Department of City Planning ("City Planning"), and Parks and Recreation, officials from the New Jersey State Department of Transportation and other public representatives to achieve these goals.

3. I received my undergraduate degree in Political Science from Columbia University in 1987. Since 1993 I have been employed by T.A. to work on pedestrian, bicycle and traffic planning issues. I have served as an advisor to the National Academy of Sciences Transportation Research Board since 1996, was appointed a member of the Mayor's Bicycle and Pedestrian Advisory Council in 1995 and was selected as a Bullitt Foundation Transportation Scholar in 1993. I am conducting and have conducted numerous studies as a subconsultant to consultants working for the New York City Department of Parks and Recreation (the "Parks Department"). I am an advisor to the Centers for Disease Control program to promote walking and bicycling. I am also a member of the Association of Pedestrian and Bicycle Professionals. Annexed as Exhibit 1 is a copy of my curriculum vitae. Based on my background and experience as described above, and my personal knowledge and expertise with respect to pedestrian safety, traffic planning and "traffic calming" issues, I am qualified to submit this Affidavit. This Affidavit is based also upon my review of the following: (1) the Declaration of Inspector McShane, dated September 21, 1999 ("McShane Dec."); (2) the Declaration of Chief Hoehl, sworn to on September 16, 1999 ("Hoehl Dec."); (3) the Declaration of Deborah Rand dated September 21, 1999 ("Rand Dec."); and (4) relevant testimony and documents in this action, as well as records and data maintained by T.A.

4. I understand that this lawsuit concerns the pedestrian barricades erected by the City beginning in December 1997 at the ten crosswalks at the intersections of 49th and 50th Streets with Lexington Avenue, Park Avenue, Madison Avenue, Fifth Avenue and Sixth Avenue, as part of a traffic plan allegedly designed to increase the speed of vehicular traffic in midtown Manhattan (the "Barricade Plan").

5. I understand that in this action, plaintiffs Mr. Kaufman and Sage have sued the City to have the barricades removed. I understand that Mr. Kaufman and Sage claim that the barricades unlawfully discriminate against them on the basis of disability, in violation of the Americans With Disabilities Act of 1990, as amended (the "ADA").

6. In the annals of traffic planning in New York City, the Midtown pedestrian barricades stand out as one of the most unfounded and hasty. The "emergency" decision by the police to install the barricades is in itself hard to justify given that crowding during the Christmas Holiday season has been a feature of midtown for more than 50 years. It is a phenomenon the police had ample time to plan for. In this Affidavit, I will show four things:

A. The decision to install the barricades was an arbitrary one made by woefully unqualified police commanders who never articulated clear, quantifiable and objective goals for the Barricade Plan; disregarded and shut out traffic experts at the DOT and the Department of City Planning; disregarded well established, and rigidly adhered to, City procedures for traffic planning and decisionmaking; ignored a vast body of existing traffic studies of Midtown and the rich experience that the DOT has dealing with traffic, holiday or otherwise, in Midtown.

B. Installing the barricades was a major traffic policy decision with a significant impact on tens of thousands of pedestrians in Midtown. In New York City, traffic decisions of this magnitude are made by the DOT after extensive traffic planning and community consultation.

C. The barricades are having a significant negative effect on pedestrians and the disabled in the form of travel delays and increasing the vulnerability of pedestrians, large numbers of whom continue to use the barricaded crossings.

D. There is no basis upon which to declare the barricades a success because of the failure of the Police to conduct a traffic study which includes before and after data on the movement of pedestrians and motor vehicles at the barricaded intersections.
The Decision to Install Barricades was Arbitrary, without Objective Goals or Basis

7. According to the declaration of Chief Allan H. Hoehl of the New York City Police Department, sworn to on September 16, 1999.

8. According to Chief Hoehl, he was the chief architect of the Barricade Plan. Chief Heohl states that after a meeting at Police Headquarters on December 21, 1997, he "decided it would make sense to experiment with some of the ideas that (he) had been formulating" regarding possible approaches to the ongoing and likely holiday traffic problems in Midtown. Therefore "When he returned to the office later on December 21, (he) sketched out a program focused on the type of intersections where (he) had long observed these problems." According to Chief Hoehl, on the very next day, December 22, 1997, "the Police Department commenced a test period for this plan." Thus the Police Department was solely responsible for the Barricade Plan and erecting the barricades.

9. Based on my conversations with individuals at the DOT and City Planning, I understand that the Police Department did not consult with DOT or City Planning regarding the Barricade Plan, and did not notify them of the Plan prior to the time they erected the barricades. As set forth in the City Charter and in accordance with normal practice, the DOT and City Planning conduct virtually all traffic analyses of the safe and efficient movement of pedestrians, cars, and bicycles in New York City. These city agencies have a staff of professionals who are trained to do this work pursuant to the nationally accepted standard and practices. Expert planners and engineers at these city agencies were excluded from the decision to install the barricades. In fact, some of the traffic planners and engineers at these city agencies have voiced strong criticisms of the barricades.

10. In imposing the Barricade Plan on midtown Manhattan, the Police Department did not conform to professional traffic standards. There is an exhaustive formal protocol for analyzing traffic flow that has been utilized by New York City as well as nationally that is based on the methodology developed by the American Association of State Highway and Transportation Officials ("AASHTO"). The DOT utilizes this AASHTO-based protocol every day in its traffic planning work. The Police Department did not even come close to following it. City agencies are required by law to notify the public before any rule, such as the Barricade Plan, is implemented. N.Y.C. Charter, Chap. 45, N.Y.C. Admin. Pro. Act § 1043 a, b, and d (1990). To my knowledge, none of these procedures were followed when the City implemented the Barricade Plan.

11. In my experience, DOT studies entail detailed, exhaustive analyses, with voluminous supporting documentation. Annexed to this Affidavit as Exhibit 2 is an example of a typical DOT study.

12. Annexed to this Affidavit as Exhibit 3 is a chart summarizing the major midtown transportation studies performed in the last twenty-five years. None of these studies mentions barricading or eliminating crosswalks as a desirable measure to employ in achieving improved traffic conditions. Indeed, these studies repeatedly emphasize the importance of placing pedestrian movement before motor vehicle traffic in Midtown.

13. In fact, one of these studies led to the creation of the "Transitway along 49th and 50th Streets. The "Transitway" rules are now in effect and call for banning private automobile use on 49th and 50th Streets. However, the failure by the police to enforce this regulatory ban means that many private cars continue to use 49th and 50th Streets illegally. This contributes to traffic congestion and increased turning conflict with pedestrians at intersections.

14. In my opinion, the procedure followed by the Police Department in implementing the Barricade Plan was slipshod and arbitrary, and its determination that the Barricade Plan was a success is not credible. It is my further opinion that the Police Department lacks the training and expertise necessary to conduct a credible analysis of the effect of the barricades. As such, it could not make a proper determination regarding the safe and efficient movement of traffic. Specifically, prior to proceeding to implement the Barricade Plan, the Police Department should have asked traffic experts at the DOT to conduct a traffic study including the following:

A. Articulate, clear, quantifiable and objective goals for that the barricades would accomplish.

B. Conduct counts of pedestrians, buses, taxis, For Hire Vehicles and commercial vehicles at the new barricaded intersections.

C. Assess the enforcement of existing "Transitway" regulations on 49th and 50th Streets.

D. Assess existing parking regulations on 49th and 50th Street, their enforcement and their effect on vehicular traffic slowing and safety.

E. Determine Level of Service (LOS) for pedestrians and motor vehicles on 49th and 50th Streets.

F. Collect a 5-year crash history for pedestrians, motor vehicles and bicyclists on 49th and 50th Streets, and analyze this data to determine the nature of the crashes and what factors contributed to them. For example, are vehicles turning into pedestrians at crosswalks? What kind of vehicles? Private cars, taxis, etc.

G. Assess the enormous catalog of existing studies of midtown and review DOT and City Planning records to identify relevant recommendations, data and historical experience with various traffic measures.

H. Determine pedestrian and vehicular hours of delay before and after the installation of barricades.

I. Identify alternatives to the barricades and compare the benefits and costs of these alternatives and their effects on pedestrians, buses, commercial vehicles.

J. Consult with the Community Board, Civic Associations, business and other public stakeholders which normally participate in significant traffic planning

15. Prior to proceeding to implement the Barricade Plan, the Police Department should have collected and analyzed data regarding how the barricades would affect pedestrians relative to vehicles. But it did not do so, and therefore, could not make a proper determination regarding the safe and efficient movement of pedestrians. Without such data, the City cannot demonstrate the basis for its claim that pedestrians are safer now than they were before the barricades.

16. What the Police Department should have done prior to implementing the Barricade Plan is worked in conjunction with the City agencies having expertise in traffic issues, such as DOT and City Planning, and conducted a thorough and methodical study of traffic conditions, which would have included data on pedestrians as well as vehicles, using methodologies that accord with accepted protocol utilized by traffic professionals. A proper study would have been based on one set goal stated clearly and definitively from the outset. With a set goal, it would have been possible to proceed from there and study, with extensive analysis, how best to reasonably achieve that goal. There would have been a menu of measures from which to choose -- which could have included the Barricade Plan. Then if it were found, based on the extensive analysis, that the Barricade Plan was in fact the best out of a menu of measures, the City could thereafter have properly implemented it.

17. Here, however, the Police Department has never stated clearly and definitively what the goal of the Barricade Plan is. This has resulted in its arbitrary implementation of the Barricade Plan.
The Decision To Install the Barricades was a Major Traffic Policy Decision

18. The decision to barricade the crosswalks on 49th and 59th Streets ranks as one of the largest traffic management decisions by this or any recent mayor. This is why the absence of the extensive traffic study usually performed by the City, and the DOT, is especially glaring.

19. The pedestrian barricades directly effect far more travelers than:

• Closing Central Park to cars.
• Pedestrianizing Union Square West.
• Changing Mulry Square (7th Ave. at 11th Street).

Yet in these cases and numerous others, the City conducted exhaustive traffic studies, each of which took more than a year. Additionally, elsewhere in Midtown, in separate studies, the City currently is studying changes to Times Square and Herald Square. Each of these studies has been underway for more than a year.

20. Because of its huge volume of pedestrian and vehicular traffic, there have been numerous traffic studies of Midtown. In fact, Midtown traffic may be the most studied in the world. Unfortunately, the Police chose to ignore this wealth of knowledge.
The Barricades Have A Major Negative Impact on Pedestrians

21. The Barricade Plan has a deleterious effect on the numerous pedestrians found in midtown. The barricades increase pedestrian crowding and travel times and put pedestrians at risk. Counts conducted by T.A. on October 6 and October 7, 1999 (see Vehicular and Pedestrian counts 10/6/99, 10/7/99 attached as Exhibit 4) found that on Madison Avenue alone the barricades have created 82,750 annual hours of travel delay to pedestrians crossing at 49th and 50th Streets weekdays from 7am to 7 p.m.

22. Further, T.A. found that 24,870 pedestrians are diverted by the barricades at Madison Avenue.

23. TA also found that 18,948 pedestrians a day illegally cross the barricaded crosswalk at 49th and 50th Streets and Madison Avenue.

24. The following is a summary of findings by T.A. Findings (see Vehicular and Pedestrian counts 10/6/99, 10/7/99, attached as Exhibit 4).

• 49,740 Pedestrians cross Madison at 49th and 50th from 7 a.m. to p.m.
• 24,870 Pedestrians are diverted by the barricades at 49th and 50th from 7a.m. to 7 p.m.
  Note that Pedestrians crossing East/West are assumed to be normally equally divided between the North and South crosswalks. This distribution is confirmed by counts T.A. has conducted on 29th and 30th Streets and 6th Avenue, 48th Street and 5th Avenue, 48th Street and Madison Avenue
  Travel Delays
• 48 seconds of average delay are imposed on each diverted pedestrian as follows: 33 seconds Average signal delay - Pedestrians crossing 49th or 50th Streets encounter two additional traffic signals because of the barricades. A pedestrian traveling East to West across Madison must travel three legs of the intersection instead of one. This means crossing the East-West street twice instead of not at all. Mathematician Charles Komanoff has constructed a probabilistic model based on a traffic signal cycle of 85 seconds (52 seconds "green" 33 "red" stop) for Avenue traffic. His calculations find an average signal caused delay of 16.5 seconds per pedestrians crossing at 49th or 50th streets. 15 seconds to walk additional 60 feet - 49th and 59th Streets are approximately 30 feet wide. A healthy pedestrian travels at 4 feet/second.
• 331 hours of hours of delay imposed each weekday on pedestrians crossing Madison at 49th or 50th. 24,870 pedestrians x 48 seconds delay/pedestrian.
• 82,750 hours annual hours of delay imposed on weekday pedestrians
• 18,948 pedestrians a day illegally cross the barricaded crosswalk at 49th and 50th Streets at Madison Avenue.

The Barricade Plan Has Not Been Shown to Enhance Pedestrian Safety
25. I disagree with the conclusion reached by Chief Hoehl and Inspector McShane that the Barricade Plan enhances pedestrian safety (Hoehl Dec. 16; McShane Dec. 21), which is completely unsubstantiated and not based on anything but their say-so.

26. In fact, the opposite is true. The Barricade Plan is placing pedestrians at increased danger. Because, as discussed above, the Police Department failed to follow proper protocol, and did not take pedestrians into consideration at all in determining to put up the barricades, it failed to give due consideration to pedestrians' habituation of crossing at the corners of streets. As a result, of pedestrians are ignoring the barricades and crossing against the barricades, and running the risk of coming into contact with cars whose drivers are misled by the presence of the barricades to proceed at greater speeds through the intersection, unobservant of pedestrians who are crossing where the drivers do not expect them to be.

27. The discriminatory result of the Barricade Plan is that motorists are being favored over pedestrians. The City's bias in favor of vehicles over pedestrians is apparent in reading the declarations of Chief Hoehl and Inspector McShane of the Police Department, which reveal that the Police Department, in implementing the Barricade Plan, was interested solely in improving vehicular travel time, to the exclusion of consideration of the interests of pedestrians, including their safety. I disagree with Chief Hoehl's opinion that the Barricade Plan "might slightly inconvenience some pedestrians wishing to cross particular streets; however, it would greatly enhance pedestrian safety." (Hoehl Dec. 14.) The Barricade Plan does more than merely "inconvenience some pedestrians"; it puts them at a great disadvantage, increasing their travel time and putting them at greater risk of personal injury. In fact, there is nothing to show that the Barricade Plan has done anything to help pedestrians.

28. The discriminatory effect of the Barricade Plan is magnified with respect to disabled persons, who suffer the greatest injury as a result of increased travel times and crowding on sidewalks and in crosswalks. This is a real negative effect on the disabled. Implicit is the idea that the disabled should travel by car.

There Is No Basis Upon Which to Assert Success of the Barricade Plan

29. With respect to any data or analysis performed by the Police Department, Inspector McShane refers only to "[d]ata collected by the [Police Department] in January and February 1998" -- after the Police Department had already pronounced the Barricade Plan a total success -- which, according to Inspector McShane, "confirmed this conclusion that the flow of traffic had significantly improved." (McShane Dec. 12.) The sole document that exists with respect to the "data collected by the Police Department" discussed in Inspector McShane's declaration is an internal Police Department memorandum dated November 12, 1998, which is annexed to his declaration as Exhibit B. This memo describes "speed runs" or timed car trips across 49th and 50th Streets that the Police employed to estimate the effects of the pedestrian barricades on average vehicular speeds. That November 12, 1998 memorandum states that the data collected by the Police Department "were analyzed by members of O.M.A.P. [i.e., Office of Management and Planning] who concluded that the placement of pedestrian [barricades] along the 49th/50th street corridor improved the flow of traffic significantly." (McShane Dec., Exh. B.) An attachment to the November 12, 1998 memorandum, Attachment C, shows two very simple bar charts, one for "Average Vehicular Volume" and one for "Average Round Trip Speed." (McShane Dec., Attachment C to Exh. B.)

30. However, this chart contains no information regarding before and after traffic counts, times of day, or crash data. In sum, the procedure utilized by the Police Department is far from the detailed analysis of traffic conditions usually performed by traffic planners and professionals, not only in New York City, but also in cities across the country. In fact, the Police Department Office of Management and Planning was altogether the wrong entity to have handled this project, since it lacks expertise in traffic planning issues and never had any involvement in traffic flow decision making. Instead, this was clearly the jurisdiction of the DOT and City Planning. The Police Department, however, did not go to the City's experts, and did not seek DOT's involvement. These experts would have properly conducted extensive traffic counts and performed a thorough and methodical analysis, applying accepted standards for analyzing traffic. Doing so, it likely would have found that the Barricade Plan was not clearly a success.

31. Moreover, the data collected by the Police Department includes no data whatsoever regarding pedestrians -- no counts of pedestrians, no assessment of pedestrian travel time, and no methodical or quantifiable observations of pedestrians' interactions with vehicles at those barricaded locations. The failure of the Police Department to consider pedestrians, or even count them, is astounding given that pedestrians account for 5 to 15 times as many travelers as do motorists along 49th Street and 50th Street. Therefore, the data relied upon by the Police Department would not have enabled anyone to properly assess the Barricade Plan's impact on pedestrians.

32. There are several modifications to the Barricade Plan that the City could implement that would not be discriminatory against pedestrians who suffer from ambulatory disabilities, such as Mr. Kaufman, yet would achieve the goals of the Barricade Plan much more effectively than the Barricade Plan, without having the concomitant deleterious effect on pedestrians, particularly those suffering from ambulatory disabilities. At various times, the City has claimed that the aims of the Barricade Plan are to increase the speed of cars traveling on 49th and 50th Streets, improve vehicular traffic flow and air quality, and increase pedestrian safety. I note, however, that the intersections affected by the Barricade Plan are not among the ten or twenty most dangerous intersections in Manhattan for pedestrians. It is my understanding that vehicular traffic issues, and not a pedestrian safety assessment, caused the City to erect the barricades at crosswalks at these ten intersections.

There Are Numerous Alternatives to Barricading Pedestrians

33. By continuing to implement the Barricade Plan, the City has ignored the adverse affect the Barricade Plan has on pedestrians and has overlooked numerous alternative plans that would achieve the same results much more effectively than the Barricade Plan, without having the concomitant deleterious effect on pedestrians.

A. The City could prohibit peak-hour loading and unloading of delivery vehicles on 49th and 50th Streets between Sixth Avenue and Lexington Avenue, thus doubling through traffic capacity from one to two lanes.

B. Police officers could start vigorously enforcing bus and taxi priority on 49th and 50th Streets, which is presently not being done.

C. Traffic signals could provide a pedestrian "head start" in which the "Walk" signal is flashed three to five seconds before the green light, thus reducing the intermingling of vehicles and walkers.

D. The City could open the crosswalks, but keep police officers at each intersection to direct pedestrian and vehicle traffic.

E. The City could implement "no turning" rules for cars at certain intersections, or prohibit cars from turning onto 49th and 50th Streets between Seventh and Third Avenues during peak travel times. Sixth, the City could designate certain points for medallion cab and livery drop-off and pick-up on these streets and avenues.