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Unterscher v. Holiday Inn Club Vacations

United States District Court, D. Nevada

July 18, 2018

Mark Allan Unterscher, an Individual, 4310 Fernwood Drive Bismarck, ND 58503 Plaintiff,
v.
Holiday Inn Club Vacations, a Timeshare; Spence Wilson, Chairman of Board, 8505 Irlo Bronson Memorial Highway, Kissimmee, FL 34747 And Holiday Inn Club Vacations, a Timeshare; Adalberto Lugo, General Manager, 3950 Koval Lane, Las Vegas, NV 89109, Defendants.

          LAW OFFICE OF SEAN M. TANKO, LTD. Sean M. Tanko, Esq. Nevada Bar No. 8904 Attorneys for Plaintiff Mark Allan Unterscher, an Individual

          GREENBERG'TRAURIG, LLP Maark E. Ferrario, Esq. Nevada Bar No. 1625 Christopher Miltenberger, Esq. Nevada Bar No. 10153 Alayne Opie, Esq. Nevada Bar No. 12653 Attorneys for Defendants

          STATUS REPORT AND STIPULATION AND [PROPOSED] ORDER REGARDING PLAINTIFF'S CLAIM

         Plaintiff Mark Allan Unterscher ("Plaintiff) and Defendants Holiday Inn Club Vacations and Spence Wilson, Chairman of Board and Holiday Inn Club Vacations, a Timeshare; Adalberto Lugo, General Manager ("Defendants") (collectively the "Parties"), by and through their undersigned counsel, hereby stipulate and agree as follows:

         1. On December 21, 2016, Plaintiff filed a Complaint for Declaratory and Injunctive Relief ("Complaint") asserting one count for various violations of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq. (the "ADA").

         2. Prior to commencing this action, Plaintiff had retained a consultant to perform an inspection of the Desert Club Resort property located at 3950 Koval Lane, Las Vegas, Nevada 89109 (the "Property"). As a result of that inspection, Plaintiffs consultant prepared a document entitled, ADA Accessibility Inspection Survey, dated August 26, 2016 (the "Survey").

         3. After filing and serving his Complaint on Defendants, Plaintiff provided a copy of the Survey to Defendants' counsel for review and consideration.

         4. Defendants conducted an internal review and analysis of the Survey and prepared a proposal to address the issues set forth in the Survey with respect to the Property in furtherance of resolving this case. Such an analysis included extensive site inspections of the Property and review and analysis of the Survey and applicable codes and regulations. As a result of their analysis and inspections, Defendants prepared a proposed plan (the "Proposed Action Plan") to address certain issues raised by the Survey and to resolve the claims set forth in Plaintiffs Complaint and provided that plan to Plaintiffs counsel on August 8, 2017. The Proposed Action Plan proposed certain remedies and repairs to many of the issues raised in the Survey, but also took the position that repair or modification of certain other alleged violations were not reasonable or readily achievable under the circumstances.

         5. Since that time, Plaintiff reviewed the Proposed Action Plan. Plaintiff agrees that the proposed repairs and modifications set forth in Defendants' Proposed Action Plan are reasonable and appropriate and will adequately address Plaintiffs concerns with respect to the alleged ADA violations for the issues other than those set forth below in Paragraph 10.

         6. Defendants agree to undertake steps to effectuate the agreed upon repairs and modifications in the Proposed Action Plan with respect to those alleged ADA violations within the next twenty-four (24) months.

         7. The Parties are working in good faith to establish a schedule for Plaintiffs expert to verify the completion of the repairs and modifications in the Proposed Action Plan.

         8. Plaintiffs disagree with Defendants' contention that repairs and modifications with respect to certain other alleged ADA violations identified in the Survey are not reasonable or readily achievable under the circumstances as identified in the Proposed Action Plan.

         9. As a result, the Parties agree that the scope of the above-captioned matter should be limited to those alleged ADA violations where Defendants contend repair or modification is not reasonable or readily achievable under the circumstances.

         10. Therefore, the Parties stipulate and agree that the remaining scope of the claim asserted in Plaintiffs Complaint shall be limited to the following alleged ADA violations as noted in Plaintiffs Survey:

(a) Shower Compartment Depth. Pages[1]36 and 358. Plaintiff alleges that the ADA requires a shower compartment to be a minimum of 60 inches deep. Plaintiff alleges that the shower compartments identified by Plaintiff in the Survey are 58 inches deep. Defendants contend that a modification or repair of these shower compartments constructed in or around 1989 are not reasonable or readily achievable as it would require a complete demolition and remodel to achieve any minimal ...

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