Amherst Farms Homeowners Association, Inc. v. D.M. and L.S.

NOT FOR PUBLICATION WITHOUT THE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).

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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.

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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'

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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

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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.

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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

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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

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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

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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."

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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

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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.

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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

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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

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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

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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).

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"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.

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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

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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.

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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

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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.

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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

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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

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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.

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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."

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[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).

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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,

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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.

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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

chickens.

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).

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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

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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)).]

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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)).

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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.

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