NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4057-23
AMHERST FARMS HOMEOWNERS ASSOCIATION, INC.,
Plaintiff-Respondent,
v.
D.M. and L.S.,1
Defendants-Appellants. ________________________
Submitted December 9, 2025 – Decided December 19, 2025
Before Judges Gilson and Perez Friscia.
On appeal from the Superior Court of New Jersey, Chancery Division, Gloucester County, Docket No. C- 000046-22.
Kristina Bergsten (The Animal Law Firm), attorney for appellant.
McInerney Coughlin & Schmidt, LLC, and Marshall Dennehey, PC, attorneys for respondent (John J.
1 Because this opinion discusses confidential medical issues about L.S., we use initials to protect her privacy. R. 1:38-3(a)(2). Coughlin, Matthew J. Behr, and Walter F. Kawalec, III, on the brief).
PER CURIAM
Defendants D.M. and L.S. appeal from the July 16, 2024 Chancery
Division order, which granted plaintiff Amherst Farms Homeowners
Association, Inc.'s summary judgment motion on its declaratory judgment claim
and dismissed defendants' counterclaims for fraud, intentional infliction of
emotional distress, malicious use of process, violations of the Fair Housing Act
(FHA), 42 U.S.C. § 3601 to § 3619, and violations of the New Jersey Law
Against Discrimination (LAD), N.J.S.A. 10:5-1 to -50. Defendants also appeal
from the denial of their summary judgment motion on their counterclaims and
to dismiss plaintiff's claim. Having reviewed the record, parties' arguments, and
applicable law, we affirm.
I.
We derive the material facts and procedural history from the record. In
reviewing the cross-motions for summary judgment de novo, we view the facts
established in the record in the light most favorable to the non-moving parties
and determine if the moving party is entitled to a judgment as a matter of law.
See N.J. Coal. of Auto. Retailers, Inc. v. Ford Motor Co., 261 N.J. 348, 357-58
(2025).
A-4057-23 2 Plaintiff is the homeowners' association for a planned community of 184
luxury homes in Mickleton. The homes are on one-half-acre lots with shared
amenities and designated common property. Plaintiff is administered by a
volunteer board of trustees (Board), and the community is subject to governing
documents, including a Declaration of Covenants and Restrictions (the
Declaration) and Bylaws. Declaration Section 15.03 authorizes plaintiff to
enforce the governing documents "by an appropriate proceeding in law or equity
in any court."
In 2020, D.M. purchased a residential property in the community to live
with L.S. As a property owner and resident in the community, D.M. and L.S.
are subject to plaintiff's Declaration and Bylaws. The Declaration under Section
13.01(l) provides a limitation on pets that are permitted and states that:
No animals of any kind shall be bred in any Unit. No animals other than domestic animals, such as dogs or cats as household pets . . . shall [be] permit[ted]. Hamsters, birds, reptiles, amphibians[,] and/or fish may be kept as household pets in any [u]nit, provided that such permitted species are not kept for any commercial purposes, do not constitute a nuisance to others[,] and are kept in strict accordance with any rules and regulations relating to household pets which may be promulgated by the Board.
A-4057-23 3 Further, the Declaration requires homeowners to obtain Board approval
before making any exterior property improvements. Declaration Section 14.01
provides that plaintiff has "Architectural Control" and:
. . . No building, or other such improvement, shall be commenced, erected[,] or maintained upon any Unit, nor shall any exterior addition to or change or alteration be made to any Unit . . . until the . . . proposed [i]mprovements . . . have been submitted to and approved in writing by the architectural design review committee.
Shortly after moving into the home in 2020, L.S. and her mother met a
Board member, John Lucian, outside and spoke about having chickens and a
coop in their backyard. Lucian discussed having chickens with "approval from
their neighbors." Lucian recalled the "casual" conversation differently than L.S.
but remembered advising her to consult with neighbors as there may be different
views on having chickens.
Two years later, in about April 2022, defendants purchased six chickens
and thereafter constructed a backyard coop and run. After defendants informed
Lucian and another board member about their chickens, plaintiff requested they
remove the chickens, coop, and run. In response, defendants provided a signed
letter from four neighbors indicating "[w]e the direct neighbors . . . have granted
our permission and full support." On May 4, plaintiff rejected defendants'
A-4057-23 4 request for "a chicken coop and [to] keep chickens in [their] backyard[,] citing
violations of the . . . Declarations." On May 5, defendants, citing the FHA,
requested "reasonable accommodations for the chickens" as L.S.'s "emotional
support animals (ESAs)" and the "outdoor coop and enclosed run." Defendants
also alleged they relied on Lucian's statements made two years earlier.
Defendants later reviewed plaintiff's website's frequently asked questions (FAQ)
page and allegedly relied on a sentence stating that no architectural committee
approval was necessary for any improvements if immediate neighbors
consented.
On May 25, the Board informed defendants that the chickens and coop
violated the Declaration and rejected defendants' FHA accommodation request.
The Board found defendants provided insufficient documentation on the
following: L.S.'s disability; the chickens were ESAs providing "therapeutic
emotional support with respect to . . . [L.S.'s] disability"; and the chickens met
"the definition of an animal commonly kept in [the] household."
On June 6, defendants submitted to the Board letters from L.S.'s treating
internist, Celeste Mruk, M.D., and therapist, Janice S. Dugan-Roller, Ph.D.,
recommending the chickens as ESAs for L.S. Dr. Mruk's letter stated that the
chickens "assist [L.S.] in coping with her symptoms which affect one or more
A-4057-23 5 major life activities" and that L.S. "has six female chickens[,] each of whom
provide her with unique individual emotional support and significant relief from
her symptoms." Dr. Dugan-Roller's letter stated that "L.S.'s relationship with
her [ESAs] (in this case poultry) initially made a substantial decrease in stress
levels, reduced panic, and increased management of her anxiety."
On June 20, plaintiff rejected defendants' renewed accommodation
request for L.S., finding she failed to meet the substantial burden of
demonstrating the "unique" chickens provided a disability-related therapeutic
need that was specific to the type of animal. Plaintiff highlighted L.S.'s
documentation was deficient and referenced that Dr. Mruk failed to demonstrate
sufficient knowledge of chickens as ESAs and opine there was any "therapeutic
need for the chickens." Regarding Dr. Dugan-Roller, the Board determined her
letter similarly "fail[ed] to meet the substantial burden of demonstrating a
unique disability-related therapeutic need for the specific" chickens. The Board
rejected defendants' accommodation request as no documentation demonstrated
that six chickens were necessary. It stated the denial was based on the following:
the "change of the character of the community"; "chickens will attract wild
animals – raccoons, fox[es], [and] coyotes"; and "health issues." Defendants
were told to cure the Declaration violations within twenty days.
A-4057-23 6 Thereafter, plaintiff offered defendants the option of removing five
chickens and retaining one caged chicken outside, along with the coop and run
that was fenced in. Defendants denied the offer.
After defendants failed to comply with the Declaration's pet limitation,
plaintiff filed a declaratory judgment complaint, on September 29, requesting
injunctive relief for the removal of the chickens, coop, and run. Plaintiff also
requested compensatory damages and that defendants be fined until they
complied. Regarding the alleged Declaration violations, plaintiff posited
defendants failed to obtain the architectural committee's approval for their
chicken coop improvement and retained prohibited pets. Plaintiff represented
that "many neighbors d[id] not approve of the chickens, coop, or run" and that
some of the neighbors that signed defendants' initial support letter had indicated
they "did so to avoid disagreement or discomfort with [d]efendants."
On December 1, defendants filed an answer and counterclaims. They
alleged claims of discrimination under the FHA, fraud, intentional infliction of
emotional distress, and malicious use of process. Defendants alleged that L.S.
"is a handicapped person as defined by the [FHA]," the "chickens are ESAs,"
and that she needed the chickens "to use and enjoy her dwelling and her life."
In addition to alleging reliance on Lucian's comments and plaintiff's website's
A-4057-23 7 FAQ, defendants averred plaintiff's "harassment" and "denial of their reasonable
accommodation requests [we]re so outrageous as to be regarded as atrocious and
utterly intolerable."
During discovery, plaintiff's interrogatories requested defendants name
their experts and serve the experts' reports. Defendants only named Gwenne
Baile, a registered nurse, as an expert "to testify on . . . the care, maintenance,
and upkeep of chickens, and on the therapeutic effects of chickens on persons
suffering from anxiety, depression, PTSD, etc." Defendants did not provide
Baile's resume or an expert report but summarized her qualifications and
observations. Baile had observed the coop, chickens, and defendants' care of
the chickens. The summary had a couple of sentences on the therapeutic relief
chickens provide generally but did not address L.S.'s disability. Defendants
relied on L.S.'s two treating medical providers' letters in support of her requested
accommodation.
During L.S.'s deposition, she relayed having anxiety and PTSD. She had
not "plan[ned] for the[ chickens] to be [ESAs]." L.S. recalled the brief
conversation with Lucian as a Board member, and his indication that chickens
were permitted with "immediate neighbors' permission." Because she believed
chickens were permitted, after a conversation with a "good friend who[ is] . . . a
A-4057-23 8 chicken farmer," she purchased the six chickens thinking "it would be . . . a good
experience." She initially cared for them inside and named them Bertha,
Gertrude, Mildred, Ginger, Rosie, and Flo. Defendants have also had in their
home "two dogs, two fish, and two domestic guinea pigs." When explaining the
chickens' assistance, L.S. explained the following: she would "sit with them,
pet them, [and] they would peck [her] hands"; they provide a very soothing,
"soft auditory response"; she enjoyed "watching them interact with each other";
and their "expressive . . . personalities" made her laugh. L.S. relayed that
feeding the chickens "really calm[ed] down some of the symptoms." She noted
another neighbor had chickens. She also acknowledged refusing plaintiff's offer
to "keep one [chicken], in a small coop" if she removed the other five chickens.
L.S. further recognized understanding that associations in community
residences have "bylaws and covenants of restrictions." In a townhouse
community where L.S. previously resided, she was on a homeowners'
association board and served as the president.
After the completion of discovery, on January 16, 2024, plaintiff moved
for summary judgment on its complaint and to dismiss defendants'
counterclaims. On the same day, defendants cross-moved for summary
judgment on their counterclaims and to dismiss plaintiff's complaint. After
A-4057-23 9 briefing, the parties filed supplemental briefs addressing the Supreme Court's
decision in Players Place II Condo. Ass'n, Inc. v. K.P., 256 N.J. 472 (2024).
The trial court heard argument and reserved its decision. On April 16,
defendants moved to amend to add an LAD counterclaim. Plaintiff opposed the
motion, arguing a late amendment would be improper after discovery was
completed and summary judgment motions were argued. After further
argument, the court again reserved its decision.
On July 16, the court issued an order accompanied by a thirty-five-page
written opinion, which granted plaintiff summary judgment on its complaint,
dismissed defendants' counterclaims, and denied defendants' cross-motion with
prejudice. The court granted defendants' motion to amend their counterclaim to
an LAD claim, but then held that plaintiff was entitled to summary judgment on
the LAD claim. Defendants were ordered to remove the chickens and the coop
within forty-five days. The court determined plaintiff had standing and the
authority to file its action. The court noted defendants are subject to the
Declaration and Bylaws, which expressly granted plaintiff enforcement powers.
The court found plaintiff was "entitled to judgment as a matter of law" and noted
that the "finding, however, depend[ed] upon the [c]ourt's analysis of the
counterclaims by the [d]efendants."
A-4057-23 10 In reviewing defendants' counterclaims, the court viewed the facts in the
light most favorable to defendants. It first found defendants' fraud counterclaim
warranted dismissal, because plaintiff did not intend for defendants to rely on
Lucian's "informal conversation," and it was not reasonable for defendants to
have relied on his statements as binding. The court also dismissed defendants'
intentional infliction of emotional distress counterclaim because the facts did
not demonstrate any outrageous action. The court dismissed the malicious use
of process counterclaim, finding "no evidence that the complaint was filed" with
"an ulterior purpose."
The court rejected defendants' FHA counterclaim and noted the amended
LAD counterclaim would similarly be denied under the same "analysis for . . .
summary judgment." The court noted it was "unable to find any . . . law" that
chickens qualify as ESAs under either the FHA or LAD and that defendants
failed to meet their burden of establishing chickens were ESAs. It further
determined "there [wa]s not a scintilla of evidence to substantiate how a total of
six chickens provide[d] defendant with the disability related therapeutic effect."
The court also referenced the Housing and Urban Development (HUD)
guidance, quoting that "there are 'very rare circumstances' where an
accommodation must be provided" if the "animal is 'not commonly kept in
A-4057-23 11 households.'" 2 The court found that there was "no evidence how the outdoor
chickens allow[ed] [L.S.] to enjoy the residence as a non-disabled person could."
On appeal, defendants argue reversal is warranted because the court
committed the following errors: (1) evaluating defendants' discrimination
claims last; (2) "fail[ing] to analyze [L.S.] under a reasonable disabled person
standard"; (3) finding plaintiff met the "very high burden under" requests for
declaratory judgment and injunctive relief; (4) ignoring that "[plaintiff] admitted
that Lucian's informal advice on obtaining chickens was standard practice and
intended to be relied upon"; and (5) using the standard for malicious abuse of
process and malicious prosecution, which defendants never pled.
II.
Our review of a trial court's summary judgment decision is de novo.
DeSimone v. Springpoint Senior Living, Inc., 256 N.J. 172, 180 (2024); see also
2 HUD Guidance: Assessing a Person's Request to Have an Animal as a Reasonable Accommodation Under the Fair Housing Act, at 1 (Jan. 28, 2020), https://www.fairhousingnc.org/wp- content/uploads/2020/01/HUDAsstAnimalNC1-28-2020.pdf [hereinafter HUD Guidance]. While the parties agreed the HUD Guidance applied at the time of defendants' requested accommodation, we note that on September 17, 2025, HUD announced the withdrawal of the HUD Guidance. Memorandum from John Gibbs, Principal Deputy Assistant Sec'y, to Off. of Fair Hous. & Equal Opportunity (Sept 17, 2025), https://www.hud.gov/sites/dfiles/Main/documents/Notice-of-Withdrawal-of- Guidance-Documents.pdf. A-4057-23 12 R. 4:46-2(c). "The court's function is not 'to weigh the evidence and determine
the truth of the matter but to determine whether there is a genuine issue for
trial.'" Rios v. Meda Pharm., Inc., 247 N.J. 1, 13 (2021) (quoting Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). "A dispute of material
fact is 'genuine only if, considering the burden of persuasion at trial, the
evidence submitted by the parties on the motion, together with all legitimate
inferences therefrom favoring the non-moving party, would require submission
of the issue to the trier of fact.'" Gayles by Gayles v. Sky Zone Trampoline
Park, 468 N.J. Super. 17, 22 (App. Div. 2021) (quoting Grande v. Saint Clare's
Health Sys., 230 N.J. 1, 24 (2017)).
"Summary judgment should be granted 'if the discovery and any affidavits
show that there is no genuine issue as to any material fact challenged and that
the moving party is entitled to a judgment or order as a matter of law.'"
DeSimone, 256 N.J. at 180-81 (quoting Perez v. Professionally Green, LLC, 215
N.J. 388, 405 (2013)) (internal quotation marks omitted). Insubstantial
arguments based on assumptions or speculation are not enough to overcome
summary judgment. Brill, 142 N.J. at 529; see also Dickson v. Cmty. Bus Lines,
Inc., 458 N.J. Super. 522, 533 (App. Div. 2019) ("'[C]onclusory and self-serving
A-4057-23 13 assertions by one of the parties are insufficient to overcome' a motion for
summary judgment." (quoting Puder v. Buechel, 183 N.J. 428, 440-41 (2005))).
III.
A. Fair Housing Act and Law Against Discrimination.
Defendants contend the court erroneously granted plaintiff's summary
judgment motion to dismiss their FHA and LAD counterclaims. Specifically,
defendants argue the court erred: in addressing plaintiff's declaratory judgment
claim and applying the business judgment rule before addressing the FHA and
LAD; framing the issue as to "whether chickens qualify as [ESAs] . . . under the
FHA and LAD"; finding L.S. failed to meet her burden despite submitting
"disability documentation," which demonstrated the chickens mitigated her
PTSD symptoms and permitted her to comfortably live in her home; and
determining plaintiff met its burden of showing an accommodation was an undue
financial or administrative burden. After reviewing the record, we conclude
under the FHA and LAD that defendants failed to show a genuine material issue
of fact supporting that the six chickens ameliorate L.S.'s disability and afford
her an equal opportunity to use her home.
The FHA was enacted to address discrimination and provide fair housing.
See 42 U.S.C. § 3601. Further, the FHA is "a clear pronouncement of a national
A-4057-23 14 commitment to end the unnecessary exclusion of persons with handicaps from
the American mainstream." Hovsons, Inc. v. Township of Brick, 89 F.3d 1096,
1105 (3d Cir. 1996) (emphasis and citations omitted).
Under the FHA, it is unlawful to "discriminate in the sale or rental, or to
otherwise make unavailable or deny, a dwelling to any buyer or renter because
of a handicap." 42 U.S.C. § 3604(f)(1). A "dwelling" is broadly defined under
42 U.S.C. § 3602(b) as "any building, structure, or portion thereof which is
occupied as, or designed or intended for occupancy as, a residence by one or
more families, and any vacant land which is offered for sale or lease for the
construction or location thereon of any such building, structure, or portion
thereof." "[D]iscrimination includes . . . a refusal to permit, at the expense of
the handicapped person, reasonable modifications of existing premises occupied
or to be occupied by such person if such modifications may be necessary to
afford such person full enjoyment of the premises." 42 U.S.C. § 3604(f)(3)(A).
The FHA's definition of handicap includes a "mental impairment which
substantially limits one or more of such person's major life activities." 42 U.S.C.
§ 3602(h)(1). Discrimination also occurs when a defendant "refus[es] to make
reasonable accommodations . . . when such accommodations may be necessary
A-4057-23 15 to afford such person equal opportunity to use and enjoy a dwelling." 42 U.S.C.
§ 3604(f)(3)(B).
The LAD similarly prohibits housing discrimination based on a person's
disability. N.J.S.A. 10:5-12(g)(2). "It is well-established that the LAD is
intended to . . . remedy . . . unacceptable discrimination and is to be construed
liberally." Est. of Nicolas v. Ocean Plaza Condo. Ass'n, Inc., 388 N.J. Super.
571, 587 (App. Div. 2006) (quoting Franek v. Tomahawk Lake Resort, 333 N.J.
Super. 206, 217 (App. Div. 2000)). Our Supreme Court has recognized that
"[t]he LAD . . . defines 'disability' more broadly than the FHA." Players Place
II, 256 N.J. at 489. Under the LAD, disability includes "any mental,
psychological, or developmental disability, . . . which [1] prevents the typical
exercise of any bodily or mental functions or [2] is demonstrable, medically or
psychologically, by accepted clinical or laboratory diagnostic techniques."
N.J.S.A. 10:5-5(q). Further, it is "unlawful discrimination" to "discriminate
against any person . . . because of . . . [a] disability . . . in the terms, conditions
or privileges of the sale, rental or lease of any real property . . . or in the
furnishing of facilities or services in connection therewith." N.J.S.A. 10:5-
12(g)(2).
A-4057-23 16 "The Division on Civil Rights . . . in the Department of Law and Public
Safety is empowered 'to prevent and eliminate discrimination' under the LAD."
Players Place II, 256 N.J. at 488 (quoting N.J.S.A. 10:5-6, -9.1). To protect
people with disabilities, the Division on Civil Rights promulgated N.J.A.C.
13:13-3.4(f)(2), which states:
It is unlawful for any person to . . . [r]efuse to make reasonable accommodations in rules, policies, practices or services, or reasonable structural modifications, when such accommodations or modifications may be necessary to afford a person with a disability equal opportunity to use and enjoy a dwelling, including public and common areas.
Our Supreme Court has recognized under the FHA and LAD that an
individual seeking an accommodation bears the initial burden of showing (1) a
disability and (2) that "the requested accommodation 'was necessary to afford
him [or her] . . . an equal opportunity to use and enjoy a dwelling.'" Players
Place II, 256 N.J. at 472 (quoting Oras v. Hous. Auth. of Bayonne, 373 N.J.
Super. 302, 312 (App. Div. 2004)); see also Lapid-Laurel, L.L.C. v. Zoning Bd.
of Adjustment of Scotch Plains, 284 F.3d 442, 457 (3d Cir. 2002).
Once the applicant satisfies the two accommodation elements, "[t]he
burden of proof then shifts to the housing provider 'to show that the requested
accommodation is or was unreasonable.'" Id. at 490 (quoting Oras, 373 N.J.
A-4057-23 17 Super. at 312). An Association "[i]s 'obligated to accommodate' the [resident]'s
'disability "to the extent necessary to provide the handicapped person with an
opportunity to use and occupy the dwelling unit equal to a non-handicapped
person."'" Ibid. (quoting Oras, 373 N.J. Super. at 314). Our Supreme Court has
held a "reasonable accommodation may include the use of an ESA, 'despite the
existence of a rule . . . prohibiting such an animal.'" Id. at 491 (quoting Revock
v. Cowpet Bay W. Condo. Ass'n, 853 F.3d 96, 100 (3d Cir. 2017)).
HUD's guidance document provided the "best practices for housing
providers to comply with the FHA as they assess 'requests for reasonable
accommodations to keep animals in housing.'" Id. at 491-92 (quoting HUD
Guidance at 1). The HUD Guidance explained that permitted animals included
those that "provide[d] therapeutic emotional support for individuals with
disabilities" and "alleviate[d] at least one identified symptom or effect of a
physical or mental impairment." HUD Guidance at 3, 19.
In addressing the "obligations of housing providers under the . . . [FHA]
with respect to animals that individuals with disabilities may request," the HUD
Guidance specifically addressed the "[t]ype of animals" that may be considered.
Id. at 1. The HUD Guidance addressed "animals commonly kept in households"
and "[u]nique animals." Id. at 12. "[B]arnyard . . . and other non-domesticated
A-4057-23 18 animals [we]re not considered common household animals." Ibid. In seeking
an accommodation for a unique animal, the HUD Guidance explained that "the
requestor ha[d] the substantial burden of demonstrating a disability-related
therapeutic need for the specific animal or the specific type of animal ." Ibid.
(emphasis added). "The individual [wa]s encouraged to submit documentation
from a health care professional confirming the need for th[e] animal, which
include[d] information of the type set out in the Guidance on Documenting an
Individual's Need for Assistance Animals in Housing." Ibid. (emphasis added).
The HUD Guidance recognized "[o]ne reliable form of documentation [wa]s a
note from a person's health care professional that confirm[ed] a person's
disability and/or need for an animal when the provider has personal knowledge
of the individual." Id. at 11 (emphasis added). "[T]he lack of such
documentation in many cases [was considered] reasonable grounds for denying
a requested accommodation." Id. at 12. The HUD Guidance also clarified that
"[r]easonable accommodations [could] be necessary when the need for a unique
animal involve[d] unique circumstances" and that an individual could "seek[] to
keep the animal outdoors at a house with a fenced yard where the animal can be
appropriately maintained." Id. at 13.
A-4057-23 19 Against this legal backdrop, we address defendants' contentions. It is
undisputed defendants have the initial burden of demonstrating L.S.'s disability.
Providing defendants with all permissive inferences, we accept that L.S. has
established under the first element that she suffers from anxiety and PTSD.
Therefore, the crux of the issue on appeal is whether L.S. has shown a disputed
material issue of fact under the second element—that the six chickens are
therapeutic and ameliorate her disability, affording her an "equal opportunity to
use and enjoy a dwelling." 42 U.S.C. § 3604(f)(3)(A); N.J.A.C. 13:13-3.4(f)(2).
Under the second element, the parties agree chickens are considered
"unique animals," but they disagree on whether chickens may serve as ESAs.
The court found no support exists for a general determination that "chickens are
[ESAs]." We part ways with the court's determination and agree with defendants
that a chicken may qualify as an ESA under the HUD Guidance, which
recognized that unique animals may serve "a disability-related therapeutic
need." HUD Guidance at 12. Thus, we do not foreclose that a chicken could
qualify as an ESA. However, the HUD Guidance clearly recognized that a
person seeking an accommodation must establish the need for the specific
A-4057-23 20 unique animal, which is best done by submitting "documentation from a health
care professional" unless provable through other means. 3 Ibid.
Defendants acknowledge they have the "substantial burden" to prove that
L.S. should be accommodated for six chickens and must show how each unique
chicken is necessary for her equal enjoyment of the residence. While we agree
that ESAs, whether common household or unique animals, provide a wide range
of assistance to people with disabilities, L.S.'s assertion alone that she needs all
six chickens to therapeutically ameliorate her disability is insufficient to satisfy
defendants' burden. As recognized by the HUD Guidance, the therapeutic
disability related issues are not within common knowledge. Further, it is
undisputed that defendants' failure to produce objective "documentation" is a
"reasonable ground[] for denying a requested accommodation" of a unique
animal. Id. at 12. Thus, we turn to review the court's determination regarding
3 We note the HUD Guidance provided as an example of an "individually trained capuchin monkey" that qualified as a unique ESA because it "perform[ed] tasks for a person with paralysis" such as "retriev[ing] a bottle of water from the refrigerator, unscrew[ing] the cap, insert[ing] a straw, and plac[ing] the bottle in a holder so the individual can get a drink of water." Id. at 13. While generally a medical expert's opinion is required, we are not convinced that in narrow circumstances a court could discern, without an expert's opinion, that a specific animal is an ESA. A-4057-23 21 her medical professional's opinions to discern if defendants have offered
documented support creating a factual dispute.
"The admission or exclusion of expert testimony is committed to the
sound discretion of the trial court." Townsend v. Pierre, 221 N.J. 36, 52 (2015).
"The net opinion rule is a 'corollary of [N.J.R.E. 703] . . . which forbids the
admission into evidence of an expert's conclusions that are not supported by
factual evidence or other data.'" Id. at 53-54 (alteration and omission in original)
(quoting Polzo v. County of Essex, 196 N.J. 569, 583 (2008)). Experts are
required to "give the why and wherefore that supports the opinion, rather than a
mere conclusion." Id. at 54 (quoting Borough of Saddle River v. 66 E.
Allendale, LLC, 216 N.J. 115, 144 (2013)) (internal quotation marks omitted).
They must "be able to identify the factual bases for their conclusions, explain
their methodology, and demonstrate that both the factual bases and the
methodology are reliable." Id. at 55 (quoting Landrigan v. Celotex Corp., 127
N.J. 404, 417 (1992)).
Defendants proffer Baile as an expert, but defense counsel conceded
during oral argument that Baile could "not specifically" testify to the chickens'
therapeutic effect "with [L.S.]" Baile's opinion did not review L.S.'s medical
history nor specifically assess L.S.'s disability and the six chickens' therapeutic
A-4057-23 22 effects on L.S.'s use and enjoyment of the residence. Rather, Baile's opinion
addressed chickens as ESAs based on their possible "therapeutic effects . . . on
persons suffering from anxiety, depression, [and] PTSD."
After reviewing defendants' two medical professionals' letters, we discern
no error in the court's determination that their letter opinions were "net opinions"
because "the 'whys' and the 'wherefores' [we]re not sufficiently nor adequately
addressed." Dr. Mruk's six-sentence letter fails to explain how the six chickens
"provide [L.S.] with unique and individual emotional support and significant
relief." Additionally, Dr. Dugan-Roller's assertion that L.R.'s "relationship with
her . . . [ESAs] (in this case poultry) initially made a substantial decrease in
stress levels, reduced panic and increased management of anxiety" has no
foundational support and analysis. Defendants failed to offer a medical
professional's opinion that reviewed and evaluated L.S.'s diagnoses, treatment,
and specific ESA disability-related services. Further, the opinions did not
address any "unique circumstances justifying the patient's need for the
particular" chickens. HUD Guidance at 17. L.S. failed to demonstrate a material
issue of fact that the six chickens should be accommodated in defendants'
backyard because each chicken satisfies a "therapeutic need." HUD Guidance
at 12. For these reasons, we discern no reason to disturb the court's
A-4057-23 23 determination that defendants failed to satisfy their burden of showing material
credible evidence that "the chickens ameliorate [L.S.'s] mental condition" and
"the proposed accommodation of six chickens kept outside their dwelling was
in fact necessary to [L.S.'s] . . . enjoyment of the home."
We also reject defendants' argument that, under our Supreme Court's
holding in Players Place II, L.S. has sufficiently shown a factual dispute
regarding the necessity to keep all six chickens to "mitigate her PTSD symptoms
to the point that she can comfortably live in her home the same as someone
without PTSD." The present facts are distinguishable from Players Place II.
Relevantly, in Players Place II, the Supreme Court detailed that the homeowner
proffered multiple experts who had each observed the homeowner, reviewed the
mental health history records and diagnoses, and provided opinions specific to
the homeowner's need for the requested ESA. Defendants failed to offer such
an expert opinion.
In sum, after a de novo review of the record, we are unpersuaded by
defendants' assertion that L.S. "provided sufficient evidence . . . that the
chickens ameliorate one or more [disability] symptoms" and are all necessary
for her equal opportunity to use and enjoy a dwelling. Therefore, the burden
does not shift to plaintiff to demonstrate the accommodation's unreasonableness.
A-4057-23 24 Stated another way, we affirm on the narrow ground that defendants failed to
meet their burden of demonstrating under the second element a material issue of
fact existed regarding L.S.'s disability-related therapeutic need for the six
chickens.
B. Intentional Infliction of Emotional Distress.
Defendants argue that plaintiff's denial of the requested accommodation
was outrageous, and the court erred in finding plaintiff's enforcement of the
governing documents does not support a claim. They further contend Lucian's
"misleading" statements and the discrimination L.S. has encountered as a
disabled person caused her distress, which should be viewed "from the
perspective of a disabled person."
To demonstrate a prima facie showing of an intentional infliction of
emotional distress, a claimant must show a material issue of fact exists regarding
the following elements:
(1) defendant acted intentionally; (2) defendant's conduct was "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community"; (3) defendant's actions proximately caused [defendants] emotional distress; and (4) the emotional distress was "so severe that no reasonable [person] could be expected to endure it."
A-4057-23 25 [Delvalle v. Trino, 474 N.J. Super. 124, 142-43 (App. Div. 2022) (second alteration in original) (quoting Segal v. Lynch, 413 N.J. Super. 171, 191 (App. Div. 2021)).]
A defendant's conduct that supports an intentional infliction of emotional
distress claim must be "so outrageous in character, and so extreme in degree, as
to go beyond all possible bounds of decency, and to be regarded as atrocious,
and utterly intolerable in a civilized community." Taylor v. Metzger, 152 N.J.
490, 509 (1998). We have held that the second element is an "elevated
threshold" that is satisfied only in extreme cases. Ingraham v. Ortho-McNeil
Pharm., 422 N.J. Super. 12, 21 (App. Div. 2011).
Defendants have failed to demonstrate a material issue of fact that plaintiff
acted in an outrageous manner in enforcing the Declaration and Bylaws, denying
her accommodation, and bringing its lawsuit. As we have concluded, the court
appropriately granted plaintiff summary judgment dismissal of defendants' FHA
and LAD claims. Thus, defendants have failed to show facts that would permit
a rational factfinder to resolve their intentional infliction of emotional distress
claim in their favor. See Buckley v. Trenton Saving Fund Soc'y, 111 N.J. 355,
366 (1988).
A-4057-23 26 C. Declaratory Judgment.
Defendants next argue plaintiff failed to meet the necessary elements to
proceed on a declaratory judgment claim and that plaintiff's only enforcement
power was to proceed under the governing documents without filing a court
action.
Plaintiff permissibly filed a declaratory judgment action because there
was a justiciable controversy between adverse parties, and plaintiff had an
interest in the suit. Chamber of Commerce v. State, 89 N.J. 131, 140 (1982).
"We have appropriately confined [Declaratory Judgment] litigation to those
situations where the litigant's concern with the subject matter evidenced a
sufficient stake and real adverseness." Indep. Realty Co. v. Township of North
Bergen, 376 N.J. Super. 295, 301 (App. Div. 2005) (emphasis in original)
(quoting Crescent Park Tenants Ass'n v. Realty Equities Corp., 58 N.J. 98, 107
(1971)). "This strong policy is solidly embedded in our Declaratory Judgment
Act, the remedial purpose of which is to afford 'relief from uncertainty and
insecurity with respect to rights, status, and other legal relations.'" Ibid. (quoting
N.J.S.A. 2A:16-51).
It is undisputed that "[t]he business judgment rule applies 'to common
interest communities' such as [plaintiff]." Alloco v. Ocean Beach & Bay Club,
A-4057-23 27 456 N.J. Super. 124, 134 (App. Div. 2018) (quoting Comm. for a Better Twin
Rivers v. Twin Rivers Homeowners' Ass'n, 192 N.J. 344, 369 (2007)). "Courts
have 'uniformly invoked the business judgment rule in cases involving
homeowners' associations[]' because 'a homeowners' association's governing
body has "a fiduciary relationship to the unit owners, comparable to the
obligation that a board of directors of a corporation owes to its stockholders. "'"
Alloco, 456 N.J. Super. at 134 (quoting Twin Rivers, 192 N.J. at 369). In the
present case, the court correctly determined plaintiff had standing and was
authorized to proceed against defendants to enforce the governing documents.
We, therefore, reject defendants' contention that plaintiff failed to meet the
requirements of an adversarial proceeding.
We are also unpersuaded by defendants' contention that plaintiff was
precluded from seeking declaratory judgment because it was "already imbued
with the powers to take . . . actions under . . . the [g]overning [d]ocuments." The
governing documents do not limit plaintiff's authority to seek enforcement. In
fact, the Declaration contemplates filing a court action. Similarly, we find no
merit in defendants' argument that the court made no "findings or conclusion of
law as to the balancing of the equities" before granting plaintiff summary
judgment.
A-4057-23 28 D. Fraud.
Defendants next contend the "[c]ourt incorrectly held that 'there are no
facts . . . to establish that there was an intention on the part of Lucian that . . .
[d]efendants would rely'" on his statement. They posit that they reasonably
relied on their conversation with Lucian two years before they purchased the
To proceed on a common law fraud claim, a claimant is obligated to
establish five elements: "(1) a material misrepresentation of a presently existing
or past fact; (2) knowledge or belief by the defendant of its falsity; (3) an
intention that the other person rely on it; (4) reasonable reliance thereon by the
other person; and (5) resulting damages." Walid v. Yolanda for Irene Couture,
Inc., 425 N.J. Super. 171, 180 (App. Div. 2012) (quoting Banco Popular N. Am.
v. Gandi, 184 N.J. 161, 172-73 (2005)). "Reliance is an essential element of
common law fraud." Byrne v. Weichert Realtors, 290 N.J. Super. 126, 137
(App. Div. 1996). Reliance must be actual and justifiable under the
circumstances. Walid, 425 N.J. Super. at 181. Consequently, "[w]ithout
reasonable reliance on a material misrepresentation, an action in fraud must
fail." Triffin v. Automatic Data Processing, Inc., 394 N.J. Super. 237, 249 (App.
Div. 2007).
A-4057-23 29 Defendants point to no credible evidence that supports Lucian knowingly
made a material misrepresentation that they reasonably relied upon. We note
that it is undisputed that the verbal, casual conversation occurred in an informal
setting. L.S. did not inquire in writing or memorialize the understanding with
the Board. She also candidly acknowledged in her deposition understanding that
homeowners' boards have governing documents and that she had previously
served on a board. Accepting defendants' assertions as true, we conclude there
are no material issues of fact that Lucian's statements were an intended
misrepresentation and that defendants relied on the statements.
We similarly discern no merit in defendants' argument that, after they
purchased the chickens, they relied on plaintiff's website that indicated "[i]f your
immediate neighbors consent in writing to the modification, then the Board will
defer to them and approve the application because the Board does not seek to
assert its personal preferences over those who are directly benefited and/or
impacted by the modification." Notably, the referenced webpage also discussed
filing "an application," "appealing an application," the role of the architectural
committee in reviewing "applications for exterior home improvements," and that
neighbors may notify the Board of violations. The Declaration, which includes
the pet limitation and limitation on exterior improvements, also provides under
A-4057-23 30 Section 15.06 that it "shall control in the event of any conflict between the terms
and conditions set forth in this Declaration and the terms and conditions of the
other Governing Documents." Thus, defendants' alleged reliance on the website
after purchasing the chickens and building the coop was not reasonably justified.
For these reasons, summary judgment was appropriately granted on defendants'
fraud claim.
E. Malicious Use of Process.
Finally, defendants contend they have demonstrated sufficient facts
showing that plaintiff had no reasonable basis to institute the present lawsuit and
acted without reasonable "cause because . . . [defendants] requested an
accommodation under the FHA and NJLAD." After a review of the record, we
are unpersuaded.
To pursue a malicious use of process claim, a plaintiff must prove:
(1) a[n] . . . action was instituted by this defendant against this plaintiff; (2) the action was motivated by malice; (3) there was an absence of probable cause to prosecute; . . . (4) the action was terminated favorably to the plaintiff. . . . [and (5)] that the plaintiff has suffered a special grievance caused by the institution of the underlying civil claim.
[Perez v. Zagami, LLC, 443 N.J. Super. 359, 365 (App. Div. 2016) (alterations in original) (citing LoBiondo v. Schwartz, 199 N.J. 62, 90 (2009)).]
A-4057-23 31 The Supreme Court has explained that a special grievance involves
"interference with one's liberty or property." Penwag Prop. Co. v. Landau, 76
N.J. 595, 598 (1979); Baglini v. Lauletta, 338 N.J. Super. 282, 300 (App. Div.
2001) (stating a special grievance must be more than the mere cost of defending
the lawsuit). Our court has elaborated:
Examples of such interference or deprivation sufficient to constitute the requisite special grievance are the appointment of a receiver, filing of a petition in bankruptcy, granting of an injunction, issuance of a writ of attachment or writ of replevin, filing of a lis pendens, issuance of an order of arrest, wrongful interference with possession or enjoyment of property, etc.
[Penwag Prop. Co. v. Landau, 148 N.J. Super. 493, 501 (App. Div. 1977), aff'd 76 N.J. at 595.]
Defendants posit there is a question of fact as to whether plaintiff acted
with malice because it never "engage[d] in the [required] Interactive Process"
or sought to remove another homeowner's chickens. However, defendants do
not dispute that plaintiff interacted and attempted to reach a resolution by
offering to permit defendants to keep one chicken. "It has been well said that 'it
is not unreasonable to require that [the non-moving party responding to a] . . .
motion for summary judgment, produce at least some extrinsic evidence of
malice.'" Brunson v. Affinity Fed. Credit Union, 199 N.J. 381, 395 (2009)
(quoting Westhoff v. Kerr S.S. Co., 219 N.J. Super. 316, 324 (Ap. Div. 1987)).
A-4057-23 32 Defendants' assertion that there was no good faith interactive process is belied
by the record.
After reviewing defendants' alleged disputed facts, we discern no material
issue supporting a malicious use of process claim. For these reasons, we discern
no reason to disturb the court's dismissal of defendants' malicious use of process
counterclaim.
Affirmed.
A-4057-23 33