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Oras v. Housing Authority of the City of Bayonne

November 29, 2004

PAUL A. ORAS, PLAINTIFF-APPELLANT,
v.
THE HOUSING AUTHORITY OF THE CITY OF BAYONNE; JOHN T. MAHON; TRISHA KARAHUTA; AVA MITCHELL, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, HUD-L-2680-01.

Before Judges Conley, Braithwaite and Winkelstein.

The opinion of the court was delivered by: Winkelstein, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 10, 2004

Plaintiff, Paul Oras, is a forty-eight-year-old paraplegic who suffered lower extremity paralysis in a motorcycle accident in 1977. He appeals from a June 20, 2003 summary judgment that dismissed his complaint alleging violations of state and federal disability discrimination laws by defendant Bayonne Housing Authority (the Authority) and its employees. He claims the Authority discriminated against him by not providing him with a handicap-accessible apartment, and by not permitting him to keep a dog that he claims assisted him with his daily activities. We reverse.

We glean the following facts from the record. The Authority administers funds provided by the United States Department of Housing and Urban Development (HUD) for rental assistance programs including a program known as"Low Income Public Housing" and another known as"Section 8 Voucher Rental Assistance." Admission to one program does not give an individual the automatic right to admission to the other; an application for the desired program must be submitted and approved.

The Authority owns an apartment building in Bayonne, known as Backbay Gardens, which leases to tenants who participate in the low income program. Backbay Gardens is adjacent to another apartment building, Post Road Gardens, which is owned by a private non-profit organization and managed by the Authority. Plaintiff was a resident in Post Road Gardens, where the tenants are participants in the Section 8 program. He lived alone.

On August 31, 1994, plaintiff, then thirty-eight years old and wheelchair-bound as a result of his motorcycle accident, applied to become a tenant in Post Road Gardens. He met with defendant Trisha Karahuta, an Authority representative, on April 26, 1995. She told him a studio apartment was available for immediate rental, but he would have to take it"sight unseen." Karahuta told him the apartment was not handicap-accessible, but was nonetheless suitable for him because it had large doorways.

She also told him that construction on wheelchair-accessible, barrier-free apartments would start in the spring and he would be"number one" on the list for such an apartment. Plaintiff testified at his deposition that Karahuta said:"Mr. Oras, beginning in the spring, I have good news for you. We are going to be renovating apartments in the housing projects, and you will be the first one on the list." Although Karahuta did not specify in which building this construction would take place, plaintiff assumed that by"housing projects," she was referring to both Post Road Gardens and Backbay Gardens.

The next day, plaintiff executed a lease for the efficiency apartment in Post Road Gardens. The lease did not contain a pet policy, but did state:

The [Authority] Tenant Handbook contains a more detailed description of the rules and regulations of the Authority and [HUD], and of Tenant's rights and duties. A copy of the Handbook is available from the Authority Office. The contents of the Handbook are specifically made part of this Lease.

One of the regulations included in the Handbook was a pet policy, which permitted"senior citizens or handicapped persons, with certain restrictions, to harbor domesticated animals in their dwelling unit." Dogs were limited to those that did not"exceed 20 pounds in weight...." Before acquiring a pet, a tenant was required to apply for a pet permit and present a health certificate for the animal; and pay the Authority a refundable deposit equal to one month's rent to cover potential damage to the apartment by the pet.

When plaintiff moved into his apartment, he brought with him his Labrador named"Jesse." Plaintiff did not obtain a pet permit for Jesse; he claimed that he was unaware of the policy. He explained that he asked other tenants about the Authority's position regarding pets, and they told him that dogs were permitted.

A month after Jesse died in May 1995, plaintiff's sister gave him a new dog,"Peaches," who weighed approximately forty-seven pounds. According to plaintiff, his niece had trained Peaches to assist him in his daily living, as Jesse had done.

The dog would retrieve plaintiff's keys from the floor, and would pull him back from the supermarket when his arms were laden with groceries and he was unable to operate his manual wheelchair. Plaintiff did not apply for a permit for Peaches.

In June 1996, plaintiff received a letter from the Authority advising that it had learned he was"harboring a dog in [his] apartment." Because Peaches exceeded the weight limit, defendant Ava Mitchell, the Authority's Director of Staff Operations, informed plaintiff on July 3, 1996, that Peaches had to be removed from his apartment by July 17, 1996. In response, plaintiff requested an exception to the pet policy. He submitted letters from two doctors, each stating it was medically necessary for him to keep Peaches. Dr. Mark Filippone said Peaches had been trained to assist plaintiff in his daily life. Dr. Jacob Jacoby wrote that Peaches was a"therapeutic aid" to plaintiff's continued well-being and plaintiff's emotional health could be compromised if he were forced to give up the dog. Notwithstanding these letters, on July 19, 1996, Mitchell denied plaintiff's request to keep the dog. She gave plaintiff until August 1, 1996, to remove Peaches from his apartment.

On July 25, 1996, plaintiff wrote to defendant John Mahon, the Authority's Executive Director, and renewed his request that the Authority make an exception for Peaches. Plaintiff wrote:

I am a handicapped individual, a paraplegic confined full-time to a manually-operated wheelchair. I have a canine companion,"Peaches," a 4 year old black Labrador female weighing about 42 lbs. This dog is described in the attached letter from Dr. Mark Filippone to [the Authority] dated July 6, 1996. Dr. Filippone's credentials are impressive and impeccable in the field of rehabilitation medicine: he is an expert. My dog is also referred to in a letter (also attached) to the [Authority] from Dr. Jacob Jacoby, dated July 11, 1996. Dr. ...


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