Opinion
No. 05C-03-284-JRJ.
May 30, 2007.
ORDER
ORDER AND NOW, TO WIT, this 30th day of May, 2007, the Court having heard and duly considered the parties' motions for partial summary judgment, it appears to the Court that:
1. Plaintiffs allege housing discrimination pursuant to the Delaware Fair Housing Act, 6 Del. C. § 4600 et. seq. (sometimes referred to herein as the ("Act"). Specifically, Plaintiffs allege that Defendants violated 6 Del. C. § 4603(b)(6)(a)(2) of the Act by declining to allow Plaintiff Gloria Price ("Price") to move to a first floor apartment at Las Casas Apartments. Defendants in this proceeding include the landlord of the apartment complex, Apartment Communities ("ACC"), the owner and President of ACC, Frank Acierno ("Acierno"), and two other ACC employees, Arlean O'Brien ("O'Brien") and Patricia Frederick ("Frederick").
Defendants believe the relevant statutory citation should be 6 Del. C. § 4603A(a)(2), arguing that 6 Del. C. 4603(b)(6), cited by Plaintiffs in their Complaint and Opening Brief has been repealed by the State legislature. Section 4603A(a)(2) reads: "(a) For purposes of this chapter, discrimination on the basis of a individual's disability includes, but is not limited to:. . . (2) A refusal to make reasonable accommodations in rules, policies, practices or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling."
2. Plaintiffs move for partial summary judgment against ACC for its alleged failure to provide a reasonable accommodation to a person with a disability in violation of the Fair Housing Act.
6 Del. C. § 4600 et. seq.
3. Defendants move for partial summary judgment seeking dismissal of Defendants Frank Acierno and Arlean O'Brien as individual defendants in this proceeding, and limitation of Price's alleged consequential damages during the time period of November 1, 2004 through January 31, 2005.
4. While it is undisputed that Price made no written request for a transfer until September 30, 2004, it is hotly disputed whether ACC's transfer policy mandated that such requests be in writing. Moreover, not only do defendants dispute that Price made a verbal transfer request, but they dispute that any alleged verbal request constituted a request for reasonable accommodation under the Fair Housing Act. In opposition, the plaintiffs argue that Acierno and O'Brien had "actual knowledge" of the alleged unlawful refusal to transfer Price. There are genuine issues of material fact with regard to the request(s) and as to what knowledge Acierno and O'Brien had, and at what point in the process they had it.
5. It is undisputed that the earliest date the Price could have been transferred to a first floor apartment pursuant to her September 30, 2004 written request was November 1, 2004. The plaintiffs, however, claim Price is entitled to compensatory damages dating back to her first verbal transfer request. As noted above, because there are genuine issues of material fact as to whether and when Price made a verbal request and whether such a request was a request for reasonable accommodation, the Court cannot rule as a matter of law at this juncture as to the relevant time period for Price's compensatory damages.
6. It is for the jury to determine whether ACC had other available first floor apartments during the relevant time period.
7. It is for the jury to determine if the accommodation was reasonable and whether the plaintiff was requesting preferential treatment.
8. The plaintiffs have sued Frank Acierno, owner of ACC, and Arlean O'Brien, an employee of ACC, individually. The defendants argue that as a matter of law these two individual defendants are not personally liable because they did not participate in a tortious act or direct subordinates to do so.
* * * For the aforementioned reasons, viewing the facts of both motions in the light most favorable to the respective non-movants, the Court DENIES the parties' motions for partial summary judgment.
IT IS SO ORDERED.