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Lath v. Oak Brook Condominium Owners' Association

United States District Court, D. New Hampshire

January 11, 2018

Sanjeev Lath
v.
Oak Brook Condominium Owners' Association, Gerard Dufresne, and Betty Mullen

          ORDER

          LANDYA MCCAFFERTY UNITED STATES DISTRICT JUDGE.

         This case now consists of seven claims against three defendants.[1] Before the court is a motion for summary judgment on Counts 1, 2, and 13. Oak Brook Condominium Owners' Association (“the Association”) objects. For the reasons that follow, Lath's motion for summary judgment is denied.

         I. Summary Judgment Standard

         “Summary judgment is appropriate when the record shows that ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'” Walker v. President & Fellows of Harvard Coll., 840 F.3d 57, 61 (1st Cir. 2016) (quoting Farmers Ins. Exch. v. RNK, Inc., 632 F.3d 777, 782 (1st Cir. 2011); citing Fed.R.Civ.P. 56(a)). When a court considers a motion for summary judgment, “[t]he evidence . . . must be viewed in the light most favorable to the nonmoving party . . . and all reasonable inferences must be taken in that party's favor.” Harris v. Scarcelli (In re Oak Knoll Assocs., L.P.), 835 F.3d 24, 29 (1st Cir. 2016) (citing Desmond v. Varrasso (In re Varrasso), 37 F.3d 760, 763 (1st Cir. 1994)).

         II. Discussion

         Lath has moved for summary judgment on three of his seven claims. The court considers each in turn.

         A. Count 1

         In an order dated August 8, 2017, document no. 205, Count 1 was dismissed from this case. As a consequence, as to Count 1, Lath's motion for summary judgment is denied as moot.

         B. Count 2

         Count 2 is a claim against the Association, under 41 U.S.C. § 3604(f)(2)(A), for handicap based discrimination resulting from the Association's purported constructive failure to allow Lath to have an emotional support dog. Lath is not entitled to judgment as a matter of law on Count 2.

         Failure to make a reasonable accommodation for a person's handicap can be an unlawful housing practice under the Fair Housing Act. See Astralis Condo. Ass'n v. Sec'y, HUD, 620 F.3d 62, 67 (1st Cir. 2010).

To establish a prima facie case of failure to accommodate under the [Fair Housing Act], a claimant must show that he is handicapped within the purview of 42 U.S.C. § 3602(h) and that the party charged knew or should reasonably have known of his handicap. DuBois v. Ass'n of Apart. Owners of 2987 Kalakaua, 453 F.3d 1175, 1179 (9th Cir. 2006); cf. Higgins v. New Balance Ath. Shoe, Inc., 194 F.3d 252, 264 (1st Cir. 1999) (enunciating similar prima facie case requirement in claims brought under the ADA). Next the claimant must show that he requested a particular accommodation that is both reasonable and necessary to allow him an equal opportunity to use and enjoy the housing in question. Bryant Woods Inn, Inc. v. Howard Cnty., Md., 724 F.3d 597, 603 (4th Cir. 1997); cf. Reed v. LePage Bakeries, Inc., 244 F.3d 254, 261 (1st Cir. 2001) (“[T]he ADA's reasonable accommodation requirement usually does not apply unless ‘triggered by a request' from the employee.”) (citation omitted). Finally, the claimant must show that the party charged refused to make the requested accommodation. 42 U.S.C. § 3604(f)(3)(B); Shapiro v. Cadman Towers, Inc., 51 F.3d 328, 336 (2d Cir. 1995).

Astralis, 620 F.3d at 67.

         Here, it is undisputed that on October 23, 2015, Lath asked the Association for a waiver of its no pets policy so that he could have an emotional support dog. It is also undisputed that on January 6, 2016, approximately 75 days after Lath made his request, the Association gave him permission to have an emotional support dog. Necessarily, Lath bases his claim ...


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