On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-5512-03.
The opinion of the court was delivered by: John S. Holston, Jr., J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 12, 2006
Before Judges Skillman, Holston, Jr. and Grall.
This case involves a disability discrimination claim under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, for failure of a condominium association to provide a disabled resident of a multiple unit condominium building a reasonable parking space accommodation. We hold that Sections 5-4.1 and 5-12(g) of the LAD provide a cause of action for disability discrimination based upon the failure of a condominium association to provide a disabled resident, of a multiple unit condominium building, a reasonable parking space accommodation sufficient to afford her an equal opportunity to the use and enjoyment of her condominium unit.*fn1 We also conclude that plaintiff produced sufficient evidence of such discrimination to require denial of defendant's motion for summary judgment.
In 1992, plaintiff Stratus C. Nicolas purchased in his name alone, a condominium unit for him and his mother, Vaciliki Nicolas (Ms. Nicolas), at the Ocean Plaza Condominium. He bought unit number 107, a ground-level unit, while construction was still under way. He and his mother moved into the unit in 1992, although construction was not completed until 1994 or 1995.
In 1990, plaintiff retired from his position as a schoolteacher and became his mother's sole caretaker, until her death. During the last ten years of her life, Ms. Nicholas was wheelchair bound, legally blind, deaf in one ear, and totally dependent upon plaintiff.
The condominium development consists of sixty-two units on six floors. The parking area is located on one level, with approximately 124 parking spaces, two for every unit. Plaintiff contends that prior to purchasing his unit, he informed the condominium's agents that his purchase of the unit was contingent upon there being a ramp-accessible apartment on the first floor and a disabled parking space next to the elevator.
When plaintiff moved into the condominium in early 1992, he began using a parking space located next to the east elevator, which was not the space designated for his unit. Since the rest of the building was not yet occupied, he was able to use the space without incident. Six months after he moved in, a new resident purchased the unit that corresponded with the parking space plaintiff was using. Accordingly, he was asked by the building realtors to park in his assigned space instead.
Plaintiff complained to defendant Ocean Plaza Condominium Association that because of his mother's handicaps he should have been permanently assigned the parking space next to the elevator that he had been using. Instead he was offered a parking space designated for unit 605, twenty-five to thirty feet directly across from the space by the east elevator, which plaintiff had been using. Plaintiff claimed that this parking space decreased accessibility to the elevator, was in a dark area, and required his mother to cross into traffic to get to the elevator.
In 1993, when unit 605 was sold, plaintiff's parking space was moved to the space designated for plaintiff's unit. That space was in the center of the parking facility, equidistant between both the east and west elevators, and approximately 150 feet from the parking space at the building's entrance. From 1993 through 1995, plaintiff continued complaining to defendant about the lack of a parking space accommodation.
On April 11, 1996, the State charged defendant with failing to have proper accessible parking for the handicapped contrary to N.J.A.C. 5:23-7.1 to -7.31, the Barrier Free Subcode of the Uniform Construction Code. Defendant pled guilty to the charge and paid a fine of $500.
On April 30, 1995, Ms. Nicolas allegedly slipped and fell because of bad lighting in the parking lot. In 1998, defendant designated some parking spaces as handicapped. None were close to the elevator. Plaintiff was offered one of the newly designated spaces, which was closer than his assigned space, but still approximately seventy-five feet from the east elevator. According to plaintiff, the designated handicapped spaces forced a disabled person to enter into the path of traffic without a clear view.
Plaintiff has remained in his assigned parking space since 1993. At his request in 1998 or 1999, a light was placed over the parking space. Plaintiff claims that the only parking space that would have satisfied his mother's needs was the original space he occupied near the east elevator.
Plaintiff, individually and as guardian ad litem for Vaciliki Nicolas, sought relief for his and his mother's claims for handicapped discrimination under the Fair Housing Amendments Act (FHAA), 42 U.S.C. § 3601-19, and LAD in the Federal District Court of New Jersey. In his federal complaint, filed May 30, 2000, plaintiff alleged that Ms. Nicolas was disabled and was denied by defendant a reasonable accommodation for her disability in the form of a proper handicapped parking space in the parking lot of their condominium. Plaintiff sought money damages for his mother's emotional stress and physical injuries from a fall in the parking lot and for her emotional stress for retaliatory harassment, as well as equitable relief. Ms. Nicolas died in January 2001 at the age of 102. Plaintiff continued his federal lawsuit as administrator ad prosequendum (administrator ad pros) of the Estate of Vaciliki Nicolas.
On June 24, 2002, the District Court granted defendant's motion for summary judgment. In its unpublished written opinion, the District Court held that all claims under the FHAA and LAD were time-barred. Nicolas v. Ocean Plaza Condominium Ass'n, No. 02-3044 (D. N.J. June 24, 2002).
Plaintiff appealed to the Third Circuit Court of Appeals, which on August 27, 2003, in Nicolas v. Ocean Plaza Condominium Association, 73 Fed. Appx. 537 (3rd Cir. 2003), affirmed the District Court's ruling in part and reversed in part. The court held that the federal tolling doctrine and the continuing violation doctrine did not apply to plaintiff's and his mother's FHAA claims, and as a result the causes of action under the FHAA were time-barred. Id. at 538-40. Although the court found that plaintiff's LAD claim was time-barred by N.J.S.A. 2A:14-2, the court left open the question of whether his mother's LAD claim would be considered time-barred. Id. at 542. In support of his contention that his mother's insanity would toll the running of the statute of limitations, defendant relied upon his deposition testimony concerning his mother's mental condition. "Mother would wake up on days and call me by my, you know, sisters' names or whatever. Or she'd be back in Greece, you know, talking to her sister and her mother. But she was lucid, you know, if I said ice cream, or whatever, I could get through to her." The court stated that this testimony created an issue of fact as to whether tolling was appropriate and remanded the case to the District Court for further proceedings.
Upon remand, the District Court, on November 14, 2003, declined to exercise supplemental jurisdiction over the State LAD claim and dismissed the claim of Ms. Nicolas pursuant to 28 U.S.C. § 1367(c)(3). Plaintiff filed his State complaint on December 1, 2003.*fn2
In lieu of filing an answer, defendant filed a motion for summary judgment. Plaintiff provided a certification from Dr. Graham Morgenstern, Ms. Nicolas' general physician. Dr. Morgenstern certified that: "Ms. Nicolas was mentally insane prior to 1992 and continued until her death in January of 2001 as a result of Alzheimer's disease and alcoholic dementia. . . . Ms. Nicolas during this time period was not aware of her legal rights because of her disability." Plaintiff also provided a letter from Dr. Gerald Grubman, Ms. Nicolas' treating urologist, dated September 1, 2004. Dr. Grubman wrote that during the time that he treated Ms. Nicolas for various urological conditions, she had "an associated condition of senile dementia."
On January 25, 2005, defendant supplied the court with transcripts of the doctors' depositions. Dr. Morgenstern testified that Ms. Nicolas did not come under his care until September 20, 1994, and that he, therefore, had no personal knowledge of her condition prior to that date. He testified that he always had difficulty communicating with Ms. Nicolas because of her mental status, which he summarized as a state of general confusion when she visited his office. He diagnosed Ms. Nicolas with dementia in October 1994 and testified that her mental condition deteriorated until her death. With respect to Ms. Nicolas' understanding of her legal rights, Dr. Morgenstern stated, "I have nothing concrete. Just it's my impression, it's my belief that from my examination, from knowing her, that she didn't know what her rights were."
Dr. Grubman was also deposed on December 22, 2004. He testified that Ms. Nicolas had come under his care in 1990 for chronic urinary infections. He indicated that he experienced difficulty in communicating with Ms. Nicolas and often found her to be confused. As to Ms. Nicolas' knowledge of her legal rights, Dr. Grubman stated, "I just can't comment about people understanding legal rights, but certainly she did not understand any of our interactions patient-physician wise." He testified that, "from day one . . . she was not able to answer my questions clearly. This was obviously an elderly, confused, demented, whatever you want to [say], woman."
On February 4, 2005, the court granted defendant's motion for summary judgment on the basis that plaintiff's complaint was time-barred pursuant to the N.J.S.A. 2A:14-2 two-year statute of limitations for LAD claims and because plaintiff failed to state a valid claim under LAD. In so holding, the court stated,
Plaintiff is required to make a prima facie showing that his mother was insane and that such condition was a bona fide basis for ...