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UNITED STATES v. FREER

July 6, 1994

UNITED STATES OF AMERICA, Plaintiff,
v.
JACK FREER and BEVERLY FREER, Defendants.



The opinion of the court was delivered by: MICHAEL A TELESCA

 INTRODUCTION

 The United States of America brings this action for declaratory and injunctive relief, on behalf of the complainant Ann Soper, under the Fair Housing Act, 42 U.S.C. § 3602, et seq. Ms. Soper is a disabled individual who resides in a trailer park owned by the defendants Jack and Beverly Freer. The Government alleges that the defendants failed to make a reasonable accommodation for Ms. Soper's disability by refusing to allow her to install a wheelchair ramp to gain access to her trailer.

 The Government seeks a preliminary injunction enjoining the defendants from continuing to withhold their approval of Ms. Soper's request to install a wheelchair ramp. Although the Government also seeks declaratory relief and monetary damages in this action, those issues are not before the Court at this time. For the following reasons, the Government's motion for a preliminary injunction is granted.

 BACKGROUND

 Ms. Soper is a disabled individual who is confined to a wheelchair. Ms. Soper has a trailer home which is located in the defendants' trailer park. In order to enter the trailer, Ms. Soper must climb five steps. Without a wheelchair ramp, Ms. Soper needs to be carried (or otherwise attended) up the steps and into her home. Recently, while being assisted into her home, Ms. Soper fell and was injured.

 Prior to her accident, Ms. Soper had asked the defendants for permission to install, at her own cost, a wheelchair ramp which wrapped around the side and front of her trailer and partially protruded into her driveway. The defendants refused to allow installation of a ramp with that configuration, claiming that it would impede trailer removal and would so shorten Ms. Soper's driveway that parked cars would obstruct the trailer park's access road. The defendants proposed an alternative ramp design which Ms. Soper has rejected as unsuitable to her needs.

 DISCUSSION

 A preliminary injunction may be granted where the movant demonstrates: (1) irreparable harm; and (2) either (a) a likelihood of success on the merits or (b) the existence of a serious question going to the merits of the case to make it a fair ground for litigation and a balance of hardships tipping decidedly in the movant's favor. Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70 (2d Cir. 1979) (per curiam).

 The Fair Housing Act (the "Act"), 42 U.S.C. § 3604(f)(2), prohibits discrimination against handicapped individuals in the terms, conditions or privileges of rental of a dwelling or in the provision of services or facilities in connection with such a dwelling. Under the statute, unlawful discrimination includes,

 
a refusal to permit, at the expense of the handicapped person, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises except that, in the case of a rental, the landlord may where is it reasonable to do so condition permission for a modification on the renter agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted.

 In order to establish a prima facie case of discrimination under § 3604 of the Act, plaintiff must demonstrate that the defendants' actions had a discriminatory effect. Robinson v. 12 Lofts Realty, Inc., 610 F.2d 1032 (2d Cir. 1979); Cason v. Rochester Housing Authority, 748 F. Supp. 1002 (W.D.N.Y. 1990). The Act defines as discrimination the failure to reasonably accommodate an individual's disability in the provision of housing services. See § 3604(f)(3)(A).

 The Government has established a prima facie case of discrimination under the Act. There is no dispute that Ms. Soper qualifies as a handicapped person under the Act or that the defendants knew of her handicap and refused to allow her to install a wheelchair ramp at her home. Unquestionably, the defendants' refusal to permit installation of the ramp has effectively denied Ms. Soper an equal opportunity to use and enjoy her ...


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