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PAZER v. NEW YORK STATE BD. OF LAW EXAMINERS

April 26, 1994

JONATHAN N. PAZER, Plaintiff(s),
v.
NEW YORK STATE BOARD OF LAW EXAMINERS, et al., Defendant(s).



The opinion of the court was delivered by: JOHN E. SPRIZZO

 SPRIZZO, D.J.,

 Plaintiff, Jonathan N. Pazer, commenced this action pursuant to the Americans with Disabilities Act of 1990 (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 him with certain requested accommodations when he sits for the New York State Bar Examination on February 22 and 23, 1994 (February exam"). For the reasons that follow, plaintiff's motion shall be and hereby is denied.

 BACKGROUND

 Plaintiff Jonathan Pazer ("Pazer") graduated from Albany Law School in May 1993 and is employed full-time in a law office in Manhattan. Complaint P 5. In anticipation of taking the New York State Bar Examination on July 27 and 28, 1993 ("July 1993 bar exam"), on or about May 18, 1993, plaintiff petitioned the Board pursuant to 20 N.Y.C.R.R. § 6000.4 to request certain accommodations for the visual processing disability from which he claims to suffer. Declaration of Jonathan N. Pazer dated February 14, 1994 ("Pazer Decl."), Ex. K.

 On or about June 15, 1993, by letter from defendant-James T. Fuller ("Fuller"), the Executive Secretary of the Board, the Board requested that plaintiff "submit scores from recent administrations of the . . . Woodcock Reading Master Test, forms G and H . . . ." Complaint P 35. Plaintiff provided the requested information to the Board on or about Friday, July 23, 1993. See Transcript from Hearing held February 17 and 18, 1994 ("Hearing Tr."). On or about Monday, July 26, 1993, plaintiff received a letter dated July 23, 1993, from defendant-Fuller, informing plaintiff that the Board had been assisted by "expert in the field, Dr. Frank R. Vellutino, a licensed psychologist" and that his request for accommodations was denied because "the Board has concluded that the evidence presented does not support the position of a learning disability." See Complaint P 38-39; Pazer Decl. Ex. M.

 Plaintiff took the July 1993 exam without accommodations and obtained a score of 625 against a passing score of 660. Complaint P 40. Plaintiff alleges that in taking the exam he experienced the various difficulties he had anticipated in his petition for accommodation. Complaint P 40. Shortly after Pazer's July 1993 bar examination scores came out in November 1993, plaintiff retained counsel. See Hearing Tr. (Pazer testimony) 35.

 On or about December 24, 1993, plaintiff applied for admission to the February 1994 exam and again requested certain accommodations for his disability, which he supported with the same evidence originally submitted in July 1993 (the "second accommodation request"). Complaint P 41. By letter dated January 25, 1994, defendant-Fuller informed plaintiff that his second accommodation request was denied. Complaint P 42.

 On or about February 3, 1994, plaintiff instituted an administrative appeal of the Board's decision by sending the Board a demand letter. Declaration of Arthur R. Block, Esq. dated February 15, 1994 ("Block Decl."), Ex. A. On or about February 14, 1994, plaintiff's counsel received notice that the Board had denied the administrative appeal. Block Decl., Ex. B.

 DISCUSSION

 The standards for obtaining a preliminary injunction are well established in this Circuit. The moving party must show irreparable injury and "either (1) a likelihood of success on the merits 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, Inc., 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)). Where, as here, the granting of the preliminary injunction will give the movant essentially all the relief he seeks, a somewhat higher standard is applied, i.e., "the movant must show a substantial likelihood of success on the merits, rather than merely a likelihood of success," Johnson v. Kay, 860 F.2d 529, 540 (2d Cir. 1988), and a strong showing of irreparable harm. Doe v. New York University, 666 F.2d 761, 773 (2d Cir. 1981). In this case, plaintiff has failed to satisfy either standard.

 The purpose of the ADA is to "provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. § 12101 (Supp. IV 1992). A disability is defined as "a physical or mental impairment that substantially limits one or more of the major life activities of an individual." 42 U.S.C. § 12102(2)(A) (Supp. IV 1992). Therefore, a covered entity discriminates against a disabled individual when it fails to make "reasonable accommodations to . . . known physical or mental limitations . . . ." 42 U.S.C. § 12112(b)(5)(A) (Supp. IV 1992). Section 12132 states in pertinent part:

 
"No qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, ...

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