43 A.3d 445
N.J. Super. Ct. App. Div.2012Background
- Plaintiff Gregory Lasky, a paraplegic tester of public-accessibility, visited Hightstown facilities (City Hall, museum, library, Army Navy Memorial) and encountered multiple barriers (parking, path slopes, curb cuts, doors, restroom access).
- He sought access without requesting assistance prior to suit; the Borough allegedly failed to provide access to its public facilities in violation of LAD and Title II of the ADA.
- During discovery, defendant moved for summary judgment arguing LAD claims require a prior request for accommodation; the motion judge dismissed all LAD claims as a matter of law.
- Division of Civil Rights regulations require reasonable access to public accommodations; they recognize ongoing structural accessibility duties and do not condition access on a prior request in the context of generalized claims of lack of access.
- The court reviews de novo to interpret LAD provisions and holds that generalized claims of overall access lack require no prior accommodation request; the case is remanded for further proceedings to analyze specific claims with proper record
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether notice or a prior accommodation request is required for LAD public accommodation claims alleging overall lack of access | Lasky | Hightstown | No prior notice required for overall access claims; remand for further proceedings |
| Whether Division rules' interpretation supports treating overall access claims differently from targeted accommodation claims | Lasky supported by Division's stance | Borough argues for stricter pre-suit request requirement | Court defers to agency interpretation and adopts rule that generalized access claims do not require a pre-request notice |
Key Cases Cited
- Franek v. Tomahawk Lake Resort, 333 N.J. Super. 206 (App.Div. 2000) (reasonableness standard; no pre-suit notice required for generalized access claims (public accommodations))
- Lasky v. Moorestown Twp., 425 N.J. Super. 530 (App.Div. 2012) (facilitates construction of LAD; discusses notice and accommodation concepts)
- Estate of Nicolas v. Ocean Plaza Condo. Assoc., Inc., 388 N.J. Super. 571 (App.Div. 2006) (pre-suit notice not always required; distinguishable facts)
- Ellison v. Creative Learning Ctr., 383 N.J. Super. 581 (App.Div. 2006) (pre-suit notice aspects in LAD context; education-focused distinctions)
- Oras v. Housing Authority of City of Bayonne, 373 N.J. Super. 302 (App.Div. 2004) (public accommodations and access claims; pre-suit considerations)
- Robertson v. Las Animas County Sheriff's Dep't, 500 F.3d 1185 (10th Cir. 2007) (ADA knowledge/notice requirement for reasonable accommodations)
- Chisolm v. McManimon, 275 F.3d 315 (3d Cir. 2001) (ADA/ Rehabilitation Act principles; applicability to LAD)
- Schonfeld v. City of Carlsbad, 172 F.3d 876 (9th Cir. 1999) (ADA access claims need not hinge on prior accommodation request)