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D'AMICO v. NEW YORK STATE BD. OF LAW EXAMINERS

February 17, 1993

MARIE C. D'AMICO, Plaintiff,
v.
NEW YORK STATE BOARD OF LAW EXAMINERS, Defendant.



The opinion of the court was delivered by: DAVID G. LARIMER

DECISION AND ORDER

 Plaintiff, Marie C. D'Amico, commenced this action pursuant to the Americans With Disabilities Act ("the ADA"), 42 U.S.C. § 12101, et seq. against the New York State Board of Law Examiners ("the Board"). Plaintiff seeks a preliminary injunction to compel the Board to provide her with certain requested accommodations when she sits for the New York State Bar Exam on February 23 and 24, 1993 ("February exam"). For the reasons that follow, plaintiff's motion is granted and the Board is directed to provide plaintiff with her requested accommodations for the February exam. Specifically, the Board is required to provide plaintiff with the same accommodations that she received when she sat for the New York State Bar Exam on July 28 and 29, 1992 ("July exam") and, in addition, a four day testing schedule consisting of six hours of testing per day plus a one hour lunch break.

 FACTS

 Plaintiff suffers from a severe visual disability. She has marked myopia ("nearsightedness") and bilateral partial amblyopia. Although plaintiff wears glasses, her medical condition cannot be corrected to achieve 20/20 vision. With visual aids, her vision is 20/50 in the right eye and 20/70 in the left eye. As a result, plaintiff has an extremely difficult time reading, finds it nearly impossible to read normal size print, and suffers from ocular fatigue and a "lazy eye" condition which is marked by dimness of vision. Her visual difficulties worsen when she reads for extended periods of time and this causes blurring, tearing, and a burning sensation, and she must take frequent breaks to rest her eyes.

 Plaintiff graduated from the State University of New York at Buffalo School of Law in 1992 and she registered for the July bar exam. In anticipation of taking the July exam, plaintiff petitioned the Board pursuant to 20 N.Y.C.R.R. § 6000.4, and requested certain accommodations for her disability. Plaintiff was provided with a large print exam and she was permitted to bring her own lamp and straight edge to a separate exam location where she and another applicant took the exam in the presence of a proctor. In addition, plaintiff was allowed nine and one half hours on July 28 and nine hours on July 29, to complete the exam. *fn1" Plaintiff was also given permission to write the answers to the multiple choice portion of the July exam in the question books instead of on the computer answer sheet.

 In November, plaintiff was notified that she failed the July exam and she registered to sit for the February exam. On the advice of her physician, plaintiff requested similar accommodations to those provided during the July exam, and in addition, she requested that the Board allow her to take the exam over a period of four days instead of two. This request to take the exam over four days is the only matter in dispute.

 The Board denied plaintiff's request to take the exam over a four-day period, although it granted her other requests. The Board agreed to provide plaintiff with the following accommodations:

 
1) a separate testing room with enhanced lighting and the opportunity to bring her own lamp,
 
2) a large print copy of the examination and, if requested, a taped copy of the examination and the services of an amanuensis to serve as a reader/writer,
 
3) permission to bring a ruler and to write the answers to the multiple choice portion of the Bar exam in the question booklet instead of on the computer answer sheet, and
 
4) permission to take the Bar exam on February 23 and 24, 1993 with freedom to specify the actual examination times desired.

 Plaintiff commenced this action pursuant to the ADA to compel the Board to provide her with "reasonable accommodations" to take the bar exam over four days rather than two days.

 The parties filed affidavits and legal memoranda and the Court conducted a hearing on February 12, 1993. At the hearing, the parties stipulated to several matters. First, the Board conceded that the ADA was applicable to the Board and its examination procedure and that it was required to make "reasonable accommodations" for disabled applicants who desired to take the February exam.

 Second, the Board represented that even before the ADA, the Board made necessary accommodations to those with bona fide disabilities. The Board has now adopted regulations pursuant to the ADA setting forth the procedure for applicants to request accommodations based on disability.

 Third, the Board agreed that plaintiff suffered from a bona fide disability and that they were required to provide her with reasonable accommodations. In fact, the Board agreed to all of the accommodations requested by plaintiff except for her request that she be allowed to take the exam over four days rather than the standard two days. The Board was willing to give plaintiff extra time to take the exam on the two scheduled exam days, but the Board was adamant in its refusal to grant plaintiff leave to take the exam over four days.

 Both sides agree then that plaintiff, because of her condition, is entitled to "reasonable accommodations" when she takes the February exam. The dispute here relates solely to the extent of the accommodations that should be provided to this applicant based on her particular disability.

 DISCUSSION

 The standards for obtaining a preliminary injunction are well established in this circuit. The moving party must show that it is likely to suffer possible irreparable injury and "either (1) a likelihood of success on the merits of its case or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balancing of hardships in its favor." Reuters Ltd. v. United Press Int'l, 903 F.2d 904, 907 (2d Cir. 1990), quoting, Coca-Cola Co. v. Tropicana Prods., Inc., 690 F.2d 312, 314-15 (2d Cir. 1982). See also Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979); New York v. Nuclear Regulatory Comm'n, 550 F.2d 745, 750 (2d Cir. 1977).


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