CHURCHVILLE GREENE, P. 2

The Carpenters sought discovery regarding the decision-making process of the HOA and Realty Performance Group with respect to the Carpenters' requests for a variance for parking and the concrete pads, to show that there was a genuine material issue of fact as to whether the decisions were made with a discriminatory or retaliatory motive. The Carpenters argued that this discovery, in the form of depositions of the individual board members and the staff at Realty, would have allowed them to show that the individuals and Realty were liable. They alleged that they were unable to obtain this information as the defendants filed the motion less than one month after they filed their answer.

"Necessary" Roughness

The court explained that the Carpenters would have to show, with respect to the reasonable accommodation in parking claim, that disabled guest parking close to their home was "necessary" for the equal use and enjoyment of their home in light of their disabilities and that a reasonable accommodation was denied. Further, if the claim was that the parking rule was unevenly enforced, the Carpenters had to produce evidence that animus against the protected group was a significant factor in the position taken by the board.

The individual defendants claimed that, as members of the board, they could not have been held individually liable for acts performed in their capacity as board members. Realty claimed it could not be liable as it was merely an agent for the HOA. The defendants argued that the Carpenters had not pointed to any individual acts other than the votes cast as board members. Nor did the Carpenters point to any facts that suggested that Realty was individually discriminating against the Carpenters.

However, the court noted, this was precisely the information the Carpenters were looking for. The court granted the Carpenters' requests to continue discovery based upon their claims for a reasonable accommodation in parking and retaliation.

Comment: The court first made clear when discussing the concrete pad that, once an issue is resolved with no likelihood that it will recur, the matter is no longer actionable.

With respect to the parking issue, the court noted in a footnote the plaintiffs' burden – specifically that allowing disabled guests to park close to their home is "necessary for the equal use and enjoyment of their home in light of their own disabilities …" We question whether the plaintiffs will be able to meet this burden as it is their friends – and not the plaintiffs themselves – who apparently require a parking accommodation.

Interestingly, although the HOA denied the request based on fire safety concerns, the decision does not indicate that the defendants presented any evidence that parking on the private road would constitute a violation of an applicable fire code. We question whether if this were the case, it would have affected the court's determination.

In sum, the court gave the plaintiffs an opportunity to prove their claims by allowing them to take the depositions of the individual board members and management company. The court also gave the defendants the right to make another motion for summary judgment at the conclusion of those depositions, i.e., after the plaintiffs had an opportunity to obtain the information they said they needed.

Finally, while this case involved an HOA, the legal principles at issue here would apply if the property was either a co-op or a condominium.

Richard Siegler is a partner in the New York City law firm of Stroock & Stroock & Lavan.  Dale J. Degenshein is a special counsel for that firm.

Illustration by Liza Donnelly 

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