written by her present counsel. The Board denied this request as well.
At the hearing before the undersigned, defendant Levy testified that the principal reason for denying plaintiff's application was the Board's concern with maintaining the integrity of the waiting lists which the Board felt would be threatened by any type of exception. In addition, it appears clear that the Board was suspicious of plaintiff's handicap. This suspicion remained unexamined, that is, no request for additional medical information or physical examination was made by the Board or any of its members, and Board members, like a number of building residents who testified at trial, confined themselves to remarking that they had not noticed that plaintiff had difficulty walking. (A witness at trial testified that "she seemed normal to me." Plaintiff, in an unrelated response to cross-examination by defendants' counsel at the hearing, gave the appropriate answer to these comments: that discrimination against the handicapped often begins with the thought that she looks just like me -- that she's normal -- when in fact the handicapped person is in some significant respect different. Prejudice, it bears recalling, includes not just mistreating another because of the difference of her outward appearance but also assuming others are the same because of their appearance, when they are not.) Another ground for the Board's suspicions and for issues raised about plaintiff's credibility at the hearing were questions about her candor in asking for a two-bedroom apartment in her initial application because of a need for a 24-hour-a-day attendant as a result of her progressive disease. So far plaintiff has had an attendant with her only when suffering from near or total paralysis. Given the dire prognosis plaintiff has been given by her doctors, it is not at all incredible that she has and will face the need for a round-the-clock companion, and in fact a companion will undoubtedly in the future be called upon more and more regularly to share plaintiff's living space.
After receiving the letter from plaintiff's brother and after consulting with their own counsel, the Board took the position that any duty to accommodate plaintiff's disability would only come into being at the time she was awarded a parking space, and not before. As expressed by defendant Levy, the Board's position was and remains that no reasonable accommodation is due plaintiff at the waiting list stage and that she must wait the same number of years as a nonhandicapped tenant before she obtains a space. When she is awarded a space, the Board then appears to have in mind considering whether existing spaces should be rearranged so as to place plaintiff's space in 101 Clark rather than in 10 Clinton.
On June 11, 1992, plaintiff filed a complaint with the United States Department of Housing and Urban Development ("HUD"), alleging housing discrimination pursuant to FHAA. HUD conducted an investigation, reviewing evidence produced by plaintiff, defendants, and other residents of Cadman Towers. On November 29, 1993, the Secretary ruled in plaintiff's favor and issued a Determination of Reasonable Cause and Charge of Discrimination. Plaintiff filed this action shortly thereafter.
42 U.S.C. § 3613(c) provides that, in a civil action under the provisions of the FHAA, the court may grant as relief any permanent or temporary injunction "or other such order (including an order enjoining the defendants from engaging in such practice or ordering such affirmative action as may be appropriate)."
In order for a preliminary injunction to issue, plaintiff must demonstrate (1) irreparable harm and (2) either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief. See Communications Workers of America, Dist. One, AFL-CIO v. NYNEX Corp., 898 F.2d 887, 891 (2d Cir. 1990); Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979) (per curiam). The showing of probable harm is the "single most important prerequisite for the issuance of a preliminary injunction," Bell and Howell v. Masel Col., 719 F.2d 42, 45 (2d Cir. 1983), and the moving party must show that injury is likely before the other requirements for an injunction will be considered. Irreparable harm must be shown to be imminent, not remote or speculative, and the injury must be such that it cannot be fully remedied by monetary damages. See Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 975 (2d Cir. 1989).
Plaintiff easily meets the first requirement for a preliminary injunction, namely, the likelihood of irreparable harm should the injunction not issue. As a patient suffering from multiple sclerosis, plaintiff is subject to an incurable disease that gradually and progressively saps her strength and interferes with her balance and bodily functions. Without a parking space in her building, plaintiff is subjected to risks of injury, infection, and humiliation substantially different in kind and magnitude from the inconveniences the nonhandicapped driver faces in finding parking on the City's streets. Plaintiff's disease makes her a candidate for accidental loss of balance, particularly during the winter season when her condition is aggravated. In addition, her urinary dysfunction results in episodes of embarrassing humiliation and discomfort which could be significantly reduced were she allowed to park indoors. The inconvenience suffered by a typical city resident forced to deice the car after a winter snowstorm is mild when compared to the discomfort, stress, and ensuing fatigue experienced by plaintiff when faced with the same task. Under these situations, it is clear that plaintiff has met her task of demonstrating a likelihood of irreparable harm were her exclusion from parking in the building allowed to continue during the pendency of this litigation.
An analysis of plaintiff's likelihood of success on the merits requires a preliminary discussion of the statutory framework within which plaintiff brings her action. The FHAA was passed by Congress in 1988 with the stated purpose of (1) creating an administrative system to enforce the nation's housing discrimination laws, (2) extending the principle of equal opportunity to handicapped individuals, and (3) extending these civil rights protections to families with children. See H.R. Rep. 711, 100th Cong., Fair Housing Amendments Act of 1988, House Committee on the Judiciary (June 17, 1988). The central provision of the Fair Housing Act, as amended in 1988, remains 42 U.S.C. § 3604, which now prohibits discrimination in housing against any person on the basis of his or her race, color, religion, sex, handicap, familial status, or national origin. In particular, section 3604(f)(2) forbids
discrimination against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap of . . . that person. . . .