Players Place II Condominium Association, Inc. v. K.P. and B.F.

SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office
of the Clerk for the convenience of the reader. It has been neither reviewed nor
approved by the Court and may not summarize all portions of the opinion.

Players Place II Condominium Association, Inc. v. K.P. (A-60/61-22) (088139)

Argued November 6, 2023 -- Decided March 13, 2024

RABNER, C.J., writing for a unanimous Court.

In this appeal, the Court considers whether the trial court properly dismissed
the disability discrimination claims brought by condominium unit owners after the
condominium association declined their request to have an emotional support animal
(ESA) based on the animal’s weight. The Court also addresses how requests of this
type should be evaluated under New Jersey’s Law Against Discrimination (LAD).

Plaintiff Players Place II Condominium Association limits pets “to the small
domestic variety weighing thirty (30) pounds or less at maturity.” Defendant K.P.
agreed to be bound by the policy when he purchased a unit. His spouse, defendant
B.F., has been diagnosed with several mental health conditions, and K.P. notified the
Association that he and B.F. were “considering adopting an emotional support dog”
that would “[m]ost likely . . . be over the 30lb pet limit.” Before the Association
responded, B.F. adopted a 63-pound dog named Luna to live with her as an ESA.
After some further exchanges, counsel for the Association wrote that, “should a dog
weighing more than 30lbs . . . even enter the Association, the Association will
immediately commence an action at law.” K.P. responded that assistance animals
are not considered pets and that, if the Association denied his claim, his “next step
[would] be to file a complaint . . . for disability discrimination.”

The Association filed a complaint asserting K.P. had violated the
Association’s rules because he had a dog that weighed more than 30 pounds and had
failed to register the animal. K.P.’s answer included a counterclaim against the
Association for allegedly violating anti-discrimination laws.

The chancery court conducted a bench trial and heard testimony from an
officer of the Association, multiple medical experts, defendants, and family
members. It dismissed defendants’ claims under the LAD and federal law, finding
that B.F. was not “handicapped or disabled” within the meaning of the relevant
statutes. The court allowed Luna to remain with B.F. on narrow equitable grounds,
however, because “this particular dog . . . offers her comfort and seems to assist her
in lessening her episodes,” and “ha[d] not been at all disruptive.”
1
 A divided Appellate Division panel modified and affirmed the trial court’s
judgment. The majority found that “the judge acted within her discretion in
fashioning an equitable remedy suitable for the particular facts of the case.” The
majority determined that the trial court misinterpreted the relevant statutes when it
found B.F. was not disabled, but it affirmed the dismissal of the discrimination
claims, finding “insufficient proof that having a dog that exceeded the weight limit
in the Association’s pet policy ‘was necessary to afford [B.F.] an equal opportunity
to use and enjoy’ the condominium unit.” The dissent agreed that defendants’
claims were properly dismissed but disagreed with the award of equitable relief.

Plaintiff appealed as of right based on the dissent, R. 2:2-1(a)(2), and the
Court granted defendants’ petition for certification, 254 N.J. 500 (2023).

HELD: Requests for reasonable accommodations like the one here should be
assessed under the following framework: Individuals who seek an accommodation
must show that they have a disability under the LAD and demonstrate that the
requested accommodation may be necessary to afford them an “equal opportunity to
use and enjoy a dwelling.” N.J.A.C. 13:13-3.4(f)(2). Housing providers then have
the burden to prove the requested accommodation is unreasonable. During that
process, both sides should engage in a good-faith, interactive dialogue. In the end, if
the parties cannot resolve the request, courts may be called on to balance the need
for, and benefits of, the requested accommodation against the cost and
administrative burdens it presents. Here, the claims should not have been dismissed.

1. The LAD prohibits discrimination in housing on account of a person’s disability,
N.J.S.A. 10:5-12(g)(2), including “any mental, psychological, or developmental
disability,” id. at -5(q). It defines “disability” more broadly than federal law, which
requires that a disability “substantially limits one or more . . . major life activities.”
42 U.S.C. § 3602(h). The LAD includes no such requirement. (pp. 18-22)

2. After reviewing relevant case law and guidance by state and federal agencies, the
Court explains that a resident of a condominium complex is entitled to request an
accommodation to a pet policy in order to keep an emotional support animal. The
individual must first demonstrate they have a disability under the LAD. In addition,
they must show that the requested accommodation may be necessary to afford them
an “equal opportunity to use and enjoy a dwelling.” N.J.A.C. 13:13-3.4(f)(2). The
housing provider then has the burden to prove the requested accommodation is
unreasonable. As part of that process, the parties should engage in a good-faith,
interactive dialogue to exchange information, consider alternative options, and
attempt to resolve or narrow any issues. If that collaborative effort fails and
litigation follows, courts will inevitably need to balance the need for, and benefits
of, the requested accommodation against the costs and administrative burdens it
presents to determine whether the accommodation is reasonable. (pp. 22-27)
2
3. Here, there is no longer any dispute that B.F. is disabled within the meaning of
the LAD. Whereas the trial court focused on the first of two ways to establish a
mental, psychological, or developmental disability under N.J.S.A. 10:5-5(q) -- a
disability “which prevents the typical exercise of any bodily or mental functions” --
the Appellate Division properly looked to the statute’s second ground -- a disability
that “is demonstrable, medically or psychologically, by accepted clinical or
laboratory diagnostic techniques.” And the record amply supports the Appellate
Division’s conclusion that B.F. satisfied the second ground. In addition to
establishing their disability, residents have the initial burden to demonstrate the
accommodation they seek is necessary. The question is whether the accommodation
will alleviate at least one symptom of the disability, not whether the accommodation
will cure or eliminate the disability. Here as well, trial testimony provided a record
for the chancery court. The LAD does not require that an ESA be prescribed by a
mental health professional or that B.F. establish a specific need for a dog that
exceeded the weight limit. The Court notes that, when possible, it is preferable to
engage in a collaborative conversation in advance of acquiring an ESA. (pp. 27-32)

4. The burden then shifts to the housing provider to prove the requested
accommodation was unreasonable -- a fact-specific weighing of the relevant costs
and benefits. The proper inquiry considers whether allowing an ESA would
fundamentally alter the housing provider’s operations or impose an undue financial
or administrative burden. Whether the animal has been trained is not a relevant
consideration. Before a housing provider denies a request on reasonableness
grounds, the parties should engage in good-faith, interactive discussions to evaluate
the accommodation and explore possible alternatives. (pp. 33-34)

5. The chancery court dismissed defendants’ discrimination claims and granted
relief on equitable grounds under its review of the Association’s breach of contract
claim. But in a dispute like this, the proper starting point is defendants’
discrimination claim. In light of the record in this case, the chancery court and
Appellate Division should not have dismissed B.F. and K.P.’s discrimination claim.
B.F. presented evidence of her need for an accommodation, which the Association
disputes. Whether the Association has shown the accommodation sought is
unreasonable is also disputed. Both inquiries are fact-sensitive and were not
addressed at the bench trial. The Court therefore remands the matter and provides
guidance for the remand proceedings. (pp. 34-37)

REVERSED. The dismissal of defendants’ counterclaim is VACATED,
and the matter is remanded to the LAW DIVISION.

JUSTICES PATTERSON, SOLOMON, PIERRE-LOUIS, FASCIALE, and
NORIEGA join in CHIEF JUSTICE RABNER’s opinion. JUSTICE WAINER
APTER did not participate.
3
 SUPREME COURT OF NEW JERSEY
A-60/61 September Term 2022
088139

Players Place II Condominium
Association, Inc.,

Plaintiff-Appellant/
Cross-Respondent,

v.

K.P. and B.F.,

Defendants-Respondents/
Cross-Appellants.

On appeal from and certification to the Superior
Court, Appellate Division.

Argued Decided
November 6, 2023 March 13, 2024

David J. Byrne argued the cause for appellant/cross-
respondent (Ansell Grimm & Aaron, attorneys; David J.
Byrne and Nicole D. Miller, on the briefs).

Talbot B. Kramer, Jr. argued the cause for
respondents/cross-appellants (Freidel & Kramer,
attorneys; Talbot B. Kramer, Jr. and Donna L. Freidel, on
the briefs).

David Leit, Assistant Attorney General, argued the cause
for amicus curiae Attorney General of New Jersey
(Matthew J. Platkin, Attorney General, attorney; David
Leit, of counsel, and Liza B. Fleming and Douglas R.
Praschak, Deputy Attorneys General, on the brief).

1
 Deborah L. Mains argued the cause for amicus curiae
New Jersey Association for Justice (Costello & Mains,
attorneys; Deborah L. Mains and Miriam S. Edelstein, of
counsel and on the brief).

CHIEF JUSTICE RABNER delivered the opinion of the Court.

In this case, an individual with a disability sought to have an emotional

support animal live in her unit at a condominium complex. The condominium

association declined the request because it does not allow residents to have

pets that weigh more than thirty pounds.

Emotional support animals (ESAs), however, are different from pets and

are not subject to general pet policies. ESAs can help people who struggle

with mental health issues and other disabilities, and can enable them to

function better in their everyday lives.

We now consider for the first time how to evaluate requests of this type

under New Jersey’s Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to

10:5-50. We hold that requests for reasonable accommodations like the one

here should be assessed under the following framework: Individuals who seek

an accommodation must show that they have a disability under the LAD and

demonstrate that the requested accommodation may be necessary to afford

them an “equal opportunity to use and enjoy a dwelling.” N.J.A.C. 13:13-

2
3.4(f)(2). Housing providers then have the burden to prove the requested

accommodation is unreasonable.

During that process, both sides should engage in a good-faith, interactive

dialogue. In the end, if the parties cannot resolve the request, courts may be

called on to balance the need for, and benefits of, the requested

accommodation against the cost and administrative burdens it presents. Judges

will then be able to determine whether the accommodation is reasonable under

the LAD.

For reasons that follow, we find that the discrimination claims the unit

owners brought should not have been dismissed. We therefore reverse the

judgment of the Appellate Division, vacate the dismissal of defendants’

counterclaim under the LAD and federal Fair Housing Act (FHA), 42 U.S.C.

§§ 3601 to 3619, and remand to the trial court for further proceedings.

I.

A.

Players Place II is a condominium community in Gloucester Township.

Defendant K.P. bought a unit there in May 2018. 1 0F

1
Because this opinion discusses confidential medical issues about K.P.’s
spouse, defendant B.F., we use initials to protect her privacy.
3
 Plaintiff Players Place II Condominium Association operates the

condominium property. The Association’s rules and regulations include a pet

policy that limits pets “to the small domestic variety weighing thirty (30)

pounds or less at maturity.” Unit owners who acquire or replace a pet after

buying a unit are required to “contact the Association within two (2) weeks to

request and complete a Pet Registration Form.” No pet that “causes a nuisance

of any kind to another unit owner” “may be kept.” The policy exempts “[d]ogs

used for the blind” from the weight restriction but does not mention emotional

support animals.

K.P. agreed to be bound by the policy when he purchased a

condominium unit. In late July or early August 2018, K.P.’s girlfriend and

now spouse, B.F., moved into the unit. As discussed below, she has been

diagnosed with several mental health conditions.

K.P. notified the Association by email on August 2, 2018 that he and B.F.

were “considering adopting an emotional support dog” that would “[m]ost

likely . . . be over the 30lb pet limit.” K.P. asked what medical documentation

would be needed. On August 5, 2018, B.F. adopted a dog named Luna from a

shelter to live with her as an ESA. At maturity, Luna would weigh more than

30 pounds; according to the record, she weighed 63 pounds in January 2019.

4
 The Association responded on August 7, 2018, without knowing that

B.F. had already adopted Luna. In an email, the Association stated that it “will

not and cannot accommodate any alleged disability in regards to a dog that

weighs in excess of 30 lbs. that has not yet been purchased or possessed.”

The following day, K.P. sent a second email and clarified that B.F. “is

moving in with me and she already has an emotional support dog.” K.P.

attached a letter from B.F.’s psychiatric nurse practitioner, Natalie C.

Eisenhower, which stated that she had been treating B.F. since February 2018.

Eisenhower noted that B.F. “suffers from a mood and anxiety disorder” and

“would benefit” from having an ESA.

Counsel for the Association responded on August 13, 2018. In a letter to

K.P., counsel stated, “should a dog weighing more than 30lbs . . . even enter

the Association, the Association will immediately commence an action at law

seeking a court order barring any dog weighing more than 30lbs.” Although

the Association offered its alternative dispute resolution program (ADR) to

address the issue, it added that, even if the parties proceeded to ADR, the

Association “will still commence legal action . . . should a dog weighing more

than 30lbs . . . enter the Association.”

Two days later, K.P. emailed the attorney and noted that, according to the

United States Department of Housing and Urban Development (HUD),

5
“assistance animals are not considered pets.” K.P. wrote that if the Association

denied his claim, his “next step [would] be to file a complaint with HUD for

disability discrimination.”

In late September or early October 2018, the Association’s board

president saw B.F. walking Luna on the condominium grounds. At no point

did anyone file a noise complaint or claim that Luna caused any property

damage.

B.

The Association filed a complaint against K.P. on October 3, 2018. It

asserted K.P.’s conduct violated the Association’s master deed, bylaws, and

rules and regulations because he had a dog that weighed more than 30 pounds

and had failed to register the animal. K.P.’s answer included a counterclaim

against the Association. He, along with B.F. as a counterclaimant, alleged the

Association violated state and federal anti-discrimination laws. In amended

pleadings that followed, the Association added B.F. as a defendant, and

defendants asserted the Association had violated the LAD and the FHA.

Defendants claimed that Luna was a support animal, “as recognized by the”

New Jersey Division on Civil Rights, not a pet, and that “proof of the [dog’s]

medical necessity” had been provided to the Association.

6
 On May 29, 2019, the chancery court entered an order to bifurcate the

proceedings. The order directed that the Association’s claims “regarding

allowing the dog to remain in the condominium [would] remain in Chancery.”

After that trial was completed, “[t]he damages portion of the case [would be]

transferred to the Law Division.” The court also granted K.P. and B.F. “leave

to amend their counterclaim to request a trial by jury.” They requested a jury

trial for the LAD and FHA claims in a second amended counterclaim.

The chancery judge conducted a bench trial in September and October

2020 and heard testimony from an officer of the Association, multiple medical

experts, defendants, and family members.

John Quinesso, president of the Association’s board, testified that the pet

policy had been in place since 2006 and that its weight restriction was

designed to prevent damage to landscaping and avoid noise complaints.

Quinesso explained the policy does not mention ESAs, and the community

treats “any domesticated animal living with a person” as “a pet.” Since the

policy went into effect, the Association granted two requests for ESAs.

Kathryn Rim, a licensed clinical social worker, testified by way of a

video-recorded deposition. Rim began treating B.F. in 2016 based on a

recommendation from B.F.’s psychiatrist. Two to three years earlier, B.F. had

been diagnosed with bipolar II disorder. Based on Rim’s observations, she

7
added panic disorder and acute post-traumatic stress disorder to the diagnosis.

She also noted that B.F. had “ADD or ADHD.”

When the two first met, B.F. had been in a car accident that

“triggered . . . a depressive episode” during which she “experienc[ed] suicidal

thoughts.” In 2017 and 2018, she went through “a few depressive episodes”

marked by periods of stability in between -- “typical of [a] bipolar” disorder,

which is “marked by up-and-down cycles.” The episodes ranged from two

weeks to one month. Throughout that time, B.F. took medication that

mitigated but did “not fix” her symptoms.

Rim has never prescribed an ESA or known a doctor to do so. She

explained it is more common for patients to get an ESA on their own. Rim

added that ESAs can have “a huge benefit” for people diagnosed with mental

health disorders because the animals can decrease symptoms and improve the

owner’s “quality of life” and “ability to function day to day.”

After getting Luna, B.F. told Rim the dog “was helping with . . . her

emotional state.” Rim explained that B.F.’s depressive episodes were shorter

and “more mild to moderate” than before. Rim also noticed an improvement

in her “ability to cope with stressors.” For example, B.F. used to hide in a

closet to cope when she became depressed; with Luna, B.F. spent “less[] time”

in “the closet, if at all.”

8
 Rim explained that the bond between the patient and the animal was

“extremely important . . . for there to be emotional support.” B.F. grew up

with a larger dog that provided her with emotional support and described an

“immediate bond and connection” with Luna “when she met her.”

Rim observed that B.F.’s “prognosis is good in the sense that her

condition can continue to be managed.” But “if her dog were to be taken away

at this point . . . , that would be very detrimental to her mental health.” Rim

added that B.F.’s “ability to cope with change is really, really challenging, . . .

and given [her] history of suicidality, depressive episodes, and . . . diagnosis of

bipolar, [removing the ESA] could trigger all of those things.”

Dr. Jo-Ann M. Cannon, Ph.D., a licensed clinical psychologist, also

testified by way of a video-recorded deposition. Cannon met with B.F. and

examined her medical records. Cannon testified that B.F. “has a long history

of mental illness” dating “back to the seventh grade.” She experienced severe

anxiety and depression at a young age and was placed on medication then.

According to Cannon, B.F.’s diagnoses include bipolar disorder, post-traumatic

stress disorder, and attention deficit disorder, for which she takes various

medications including two mood stabilizers, “an anti-depressant,” an “anti-

psychotic,” and “Adderall for her ADD.”

9
 Like Rim, Cannon explained that B.F. “doesn’t respond well to change”

and “decompensates” when there is stress. Even while on medication, her

medical issues affect her ability to function. On a bad day, Cannon noted, B.F.

will “lock herself in a closet and . . . stay there for hours in order to calm

herself down in a calm environment.”

Cannon testified that B.F. “could not be alone in the condo” “[b]efore

getting Luna.” Although B.F. still suffers from depression and anxiety, she is

now “comfortable staying alone in the condo as long as she has Luna with

her.” When B.F. is “panicking or decompressing,” “the dog will sit in the

closet with her for hours” and “lick[] her face when she cries.” In Cannon’s

opinion, Luna “keeps [B.F.] stable.”

Cannon explained that the impetus for getting an ESA “always come[s]

from the patient,” not the clinician. She had not heard of clinicians prescribing

ESAs but has written letters of support for ESAs when an animal “alleviate[s]

some of the symptoms” the disabled person is “experiencing.”

Cannon opined that Luna helps B.F. enjoy her daily life in the

condominium unit. If Luna were no longer allowed to live with B.F., Cannon

testified that she thought B.F. would decompensate, “which could be

potentially dangerous because . . . she has suicidal ideation on and off.”

Without Luna, Cannon believed B.F’s “condition would deteriorate.”

10
 Natalie Eisenhower, the psychiatric nurse practitioner who treated B.F.,

also testified. Eisenhower monitored and helped manage B.F.’s medications.

Eisenhower did not prescribe or recommend that B.F. get an ESA but wrote

two letters of support at B.F.’s request. Eisenhower testified that she thought

an ESA “would benefit” B.F. because the animal helped lessen her symptoms

and “help[ed] her cope when she does have . . . episodes.”

The Association called Dr. Mark Siegert, a clinical and forensic

psychologist, as an expert witness. Siegert reviewed B.F.’s available medical

records, evaluated her in person, and administered two psychological tests. He

concluded that B.F. “actually suffer[s] from some mental illness.” His

“diagnostic impression” of B.F. was that she had “bipolar II disorder, major

depressive disorder, generalized anxiety disorder, somatoform disorder,

compulsive personality disorder, and borderline personality type.”

Siegert, however, did not find “any substantial limitation . . . of any

major life activities or bodily functions” because of B.F.’s mental illness.

Although he noted that depression and panic attacks “restrain[]” B.F. “at the

moment,” Siegert found that she is “able to get back together” and has

“done . . . quite well through most of her life.” In his opinion, her restrictions

were not substantial.

11
 Siegert noted that B.F.’s treating psychiatrist had not prescribed or

recommended an ESA for B.F., “[w]hich is consistent with what [he]

believe[d].” He concluded that Luna had not “directly ameliorated” any of

B.F.’s symptoms. In his opinion, B.F. “did not require a dog to have equal use

and enjoyment of the [condominium] unit.”

B.F., K.P., and B.F.’s parents testified as well. B.F. explained that she

has struggled with mental health issues since middle school. She identified her

diagnoses, medications, treatment providers, and ongoing symptoms.

B.F. noted that she raised the idea of an emotional support animal with

her therapist. She had a larger dog while growing up, which she always found

“comforting.” Smaller dogs did not provide her “with that same level of . . .

relaxation.” Because they were “loud and yappy,” they gave her “more

anxiety” instead. She said that she bonded with Luna -- a larger, quiet dog --

right away.

B.F. testified that Luna provides “a really great deal of comfort to” her.

By way of examples, B.F. explained that Luna lies with her in the closet when

she is “going through . . . an episode” and “lick[s] away [her] tears.” B.F.

added that her symptoms have “dramatically . . . decreased . . . in length” and

frequency since she has had Luna.

12
 K.P. confirmed that Luna has had a positive impact on B.F.’s behavior.

Her parents corroborated B.F.’s account of her mental health issues and

likewise commented on the positive effect Luna has had on B.F.

C.

The chancery court issued its ruling in early December 2020. It

dismissed defendants’ claims under the LAD and FHA but allowed Luna to

remain with B.F. on narrow equitable grounds.

The court found that although B.F. “does suffer from various forms of

mental disturbances,” she is not “handicapped or disabled” within the meaning

of the LAD and FHA. In support of that finding, the court noted that B.F. had

graduated with honors and received positive reviews from her employer; “[n]o

aspect of her diagnosed conditions . . . prevented her from the normal exercise

of any bodily or mental functions.” The court also observed that no one had

prescribed an ESA for B.F. For those reasons, the court dismissed the LAD

and FHA claims and did not award any damages to defendants.

The chancery court made additional findings that supported its equitable

remedy. Even though it found “there was no proof at all that [B.F.] need[ed] a

dog to alleviate her conditions,” the court “believe[d]” that B.F. “ha[d]

demonstrated that this dog has acted to relieve certain symptoms of her mental

health conditions either by shortening or lessening them.” The court noted that

13
Luna “allowed [B.F.] to remain in the . . . unit without [K.P.], which she

couldn’t do before she had the dog,” and “help[ed] her to lessen or shorten the

extent of the episode[s].” The court emphasized that because “this particular

dog, not any other dog, just this dog . . . offers her comfort and seems to assist

her in lessening her episodes,” and because the dog “ha[d] not been at all

disruptive,” B.F. could “keep this dog.”

Finally, the court vacated its prior order to transfer the damage claims to

the Law Division. Because it found no violation of the LAD or FHA, the court

explained there was “no damage portion left to be determined by a jury.” In a

written order, the court directed each party to pay its own counsel fees.

Plaintiff appealed and argued the trial court erred in failing to enforce

the Association’s rules and regulations and allowing Luna to stay. Defendants

cross-appealed. They challenged the chancery court’s finding that B.F. was not

disabled and therefore not entitled to an accommodation, damages, or

attorneys’ fees under the LAD and FHA.

A divided Appellate Division panel modified and affirmed the trial

court’s judgment. The majority found that “the judge acted within her

discretion in fashioning an equitable remedy suitable for the particular facts of

the case.” The appellate majority concluded the decision “was supported by

B.F.’s unrebutted attachment to Luna and the emotional support she receives

14
from Luna”; “[o]n the other side of the scale, the Association presented no

evidence that Luna caused any problems.”

The majority, however, noted that the trial court misinterpreted the

statute when it found B.F. was not disabled. To establish a disability under the

LAD, the majority explained, it is not necessary to demonstrate that a mental

disability “prevents the typical exercise of any bodily or mental functions”; the

statute provides an alternative way to establish a disability “by accepted

clinical or laboratory diagnostic techniques.” (citing N.J.S.A. 10:5-5(q)).

Under that standard, the majority concluded that “the unrefuted medical

evidence established that B.F. was disabled” under the LAD.

The majority found both “that B.F. suffer[ed] from various psychological

disorders, and [that] B.F.’s mental health professionals testified that Luna

ameliorated certain symptoms of B.F.’s disability.” But the majority could not

“say that the [chancery] judge erred when she found there was insufficient

proof that having a dog that exceeded the weight limit in the Association’s pet

policy ‘was necessary to afford [B.F.] an equal opportunity to use and enjoy’

the condominium unit.” (quoting Oras v. Hous. Auth. of Bayonne, 373 N.J.

Super. 302, 312 (App. Div. 2004)). Critical to its analysis, the majority

observed that no medical or mental health professional recommended or

prescribed an ESA. The majority also observed there was no medical evidence

15
that B.F. needed a dog larger than thirty pounds. As a result, the majority

found “the Association was relieved of its obligation to provide the requested

accommodation.” (citing Oras, 373 N.J. Super. at 317).

The dissent agreed that defendants’ claims under the LAD and FHA

should be dismissed. “With that finding,” it explained, “there was nothing left

for the trial judge to do.” The dissent therefore found the trial court abused its

discretion in “awarding defendants a remedy when [there was] no wrong to

right.”

Plaintiff appealed as of right based on the dissent, pursuant to Rule 2:2-

1(a)(2). The Court granted defendants’ petition for certification. 254 N.J. 500

(2023). The Court also granted leave to appear as friends of the court to the

Attorney General and the New Jersey Association for Justice (NJAJ).

II.

B.F. and K.P. contend that the Appellate Division used an improper

standard to determine when a disabled person is entitled to an emotional

support animal. Defendants submit that because B.F. presented proof that she

is disabled and that Luna ameliorated the symptoms of her disability, and

because no complaints had been lodged against Luna, the court’s inquiry

should have ended there.

16
 B.F. and K.P. also assert that the trial court properly exercised its

equitable powers to fashion a remedy that allowed B.F. to keep Luna. If B.F.

and K.P. prevail, they maintain the issue of damages should proceed in the

Law Division before a jury.

The Association argues that its rules are valid and enforceable. Under

the business judgment rule, the Association contends the rules should apply

here. The Association also maintains that it did not violate the LAD. Because

it did not commit any wrong against defendants, the Association argues, the

trial court abused its discretion in permitting Luna to stay in the condominium

unit. According to the Association, both law and equity require that Luna be

removed.

The Association agrees with defendants that, if the Appellate Division’s

judgment is reversed, a jury trial will be needed to adjudicate defendants’ LAD

claims.

The Attorney General, on behalf of the Division on Civil Rights, argues

“[t]his Court should hold that (1) B.F. has a disability under the LAD; (2) this

particular accommodation was ‘necessary,’ even if this ESA was not prescribed

by a doctor; and (3) housing providers must engage in a good-faith process

with residents who request such an accommodation.”

17
 The Attorney General submits that the Appellate Division misapplied the

standard to determine whether the requested accommodation was “necessary.”

Under the LAD, the Attorney General contends, “[a]n accommodation is

necessary . . . if the individual with the disability can show the accommodation

alleviates the effects of her disability to afford her the equal opportunity to use

and enjoy her dwelling.”

NJAJ argues that the Appellate Division misinterpreted the appropriate

legal standard in light of the remedial purpose of the LAD and its

implementing regulation, N.J.A.C. 13:13-3.4(f)(2). NJAJ also contends that it

was clear error to find there was insufficient evidence to demonstrate the

necessity of the requested accommodation.

III.

A.

B.F. and K.P. contend the Association has violated their rights under

state and federal law. New Jersey’s Law Against Discrimination is designed to

eradicate discrimination in our society. Nini v. Mercer Cnty. Cmty. Coll., 202

N.J. 98, 115 (2010). The Legislature specifically directed that this remedial

law “shall be liberally construed.” N.J.S.A. 10:5-3.

Among other safeguards, the LAD prohibits discrimination in housing

on account of a person’s disability. N.J.S.A. 10:5-12(g)(2) states that

18
 [i]t shall be . . . an unlawful discrimination . . . [f]or any
person, including but not limited to, any . . . managing
agent of . . . any real property . . . [t]o discriminate
against any person . . . because of . . . 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(h)(2) has a similar prohibition relating to real estate brokers

and salespeople.

The LAD defines “disability” as a

physical or sensory disability, infirmity, malformation,
or disfigurement which is caused by bodily injury, birth
defect, or illness including epilepsy and other seizure
disorders, and which shall include . . . any mental,
psychological, or developmental disability, including
autism spectrum disorders, resulting from anatomical,
psychological, physiological, or neurological
conditions 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) (emphases added).]

Various mental illnesses and psychological disorders are considered

disabilities under the LAD. See, e.g., Domurat v. Ciba Specialty Chems.

Corp., 353 N.J. Super. 74, 89 (App. Div. 2002) (attention deficit disorder,

depression, “and other psychiatric disorders”); Tynan v. Vicinage 13 of the

Super. Ct., 351 N.J. Super. 385, 399 (App. Div. 2002) (post-traumatic stress

disorder, depression, and anxiety panic attacks); see also Clowes v. Terminix

19
Int’l, Inc., 109 N.J. 575, 593-94 (1988) (alcoholism). When a disability “is not

readily apparent” -- for example, when it is non-observable -- “expert medical

evidence is required.” Viscik v. Fowler Equip. Co., 173 N.J. 1, 16 (2002).

The Division on Civil Rights (Division) in the Department of Law and

Public Safety is empowered “to prevent and eliminate discrimination” under

the LAD. N.J.S.A. 10:5-6, -9.1. The Director of the Division is appointed by,

and acts for, the Attorney General. Id. at -8(d).

Among other regulations the Division has promulgated, N.J.A.C. 13:13-

3.4(f)(2) provides that

[i]t 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.

The regulation applies to condominium associations. Est. of Nicolas v. Ocean

Plaza Condo. Ass’n, Inc., 388 N.J. Super. 571, 575, 587-91 (App. Div. 2006).

Under the FHA, it is unlawful “[t]o 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). Discriminatory housing

practices include “a refusal to make reasonable accommodations in rules,

policies, practices, or services, when such accommodations may be necessary

20
to afford [a person who is handicapped] equal opportunity to use and enjoy a

dwelling.” 42 U.S.C. § 3604(f)(3)(B); see also 24 C.F.R. § 966.7(a) (applying

the same principle to lease and grievance procedures).

The LAD must be construed in a way that “permit[s] the Division on

Civil Rights . . . to qualify as a ‘certified agency’ within the meaning of the

Federal Fair Housing Amendments Act.” N.J.S.A. 10:5-9.2. To qualify, HUD

requires that the LAD provide rights, procedures, and remedies “that are

substantially equivalent to those provided in the federal Fair Housing Act.” 24

C.F.R. § 115.201(a).

The LAD, in turn, defines “disability” more broadly than the FHA does.

Under the FHA, the correlative term “handicap” 2 means “(1) a physical or
1F

mental impairment which substantially limits one or more of [a] person’s

major life activities, (2) a record of having such an impairment, or (3) being

regarded as having such an impairment.” 42 U.S.C. § 3602(h). That definition

mirrors the language in the Americans with Disabilities Act (ADA). 42 U.S.C.

§ 12102(1) (defining “disability”). State law, by contrast, does not include any

requirement that a disability “result in substantial limitation of a major life

activity.” Tynan, 351 N.J. Super. at 397. As a result, the LAD “has been

2
In 2003, the New Jersey Legislature substituted the word “disability” for all
references to “handicap” in the LAD. L. 2003, c. 180.
21
interpreted as significantly broader than” analogous federal law. Viscik, 173

N.J. at 16 (citing Failla v. City of Passaic, 146 F.3d 149, 154 (3d Cir. 1998)).

We look to federal law against discrimination, in general, as a helpful

source of authority to interpret the LAD. Richter v. Oakland Bd. of Educ., 246

N.J. 507, 527 (2021).

B.

The Appellate Division’s opinion in Oras outlines the proper framework

to apply the above standards. In Oras, the court considered a claim that a

disabled tenant brought under the FHA and the LAD. 373 N.J. Super. at 306,

310-11. The tenant argued that the Bayonne Housing Authority “discriminated

against him by not providing . . . a handicap-accessible apartment, and by not

permitting him to keep a dog that he claim[ed] assisted him with his daily

activities.” Id. at 306. The dog weighed more than the Authority’s pet policy

allowed. Id. at 307-08.

To assess the claims, the appellate court noted the disabled tenant had

the initial burden to show the requested accommodation “was necessary to

afford him . . . an equal opportunity to use and enjoy a dwelling.” Id. at 312

(citing Lapid-Laurel, L.L.C. v. Zoning Bd. of Adjustment of Scotch Plains, 284

F.3d 442, 457 (3d Cir. 2002)). The burden of proof then shifts to the housing

22
provider “to show that the requested accommodation is or was unreasonable.”

Ibid.

Notwithstanding its pet policy, the Oras court explained, the Authority

was “obligated to accommodate” the tenant’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.’” Id. at 314

(quoting 24 C.F.R. § 966.7(a) and citing N.J.A.C. 13:13-3.4(f)(2)).

Both relevant issues -- “[w]hether a pet is of sufficient assistance to a

tenant” and whether the accommodation sought is unreasonable -- involve fact-

sensitive inquiries. Id. at 315. Housing providers are not required “to do

everything humanly possible to accommodate a disabled person.” Ibid.

(quoting Bronk v. Ineichen, 54 F.3d 425, 429 (7th Cir. 1995)). The “cost” to

the provider and “benefit” to the tenant both “merit consideration.” Ibid. On

one side, “[t]he requested accommodation must ‘enhance a disabled plaintiff’s

quality of life by ameliorating the effects of the disability.’” Ibid. (quoting

Bronk, 54 F.3d at 429); accord Anderson v. City of Blue Ash, 798 F.3d 338,

361 (6th Cir. 2015); Bhogaita v. Altamonte Heights Condo. Ass’n, Inc., 765

F.3d 1277, 1288-89 (11th Cir. 2014); Lapid-Laurel, 284 F.3d at 461. On the

other side, courts may consider “the likely costs or administrative burdens to

23
be incurred by the” housing provider to accommodate an ESA. 3 Oras, 373 N.J.
2F

Super. at 316 (citing Janush v. Charities Hous. Dev. Corp., 169 F. Supp. 2d

1133, 1136 (N.D. Cal. 2000)).

Federal courts have similarly found that a reasonable accommodation

may include the use of an ESA, “despite the existence of a rule . . . prohibiting

such an animal.” Revock v. Cowpet Bay W. Condo. Ass’n, 853 F.3d 96, 110

(3d Cir. 2017); accord Castillo Condo. Ass’n v. U.S. Dep’t of Hous. & Urb.

Dev., 821 F.3d 92, 98 (1st Cir. 2016); Bhogaita, 765 F.3d at 1281, 1289.

C.

Both the Division and HUD have published guidance about emotional

support animals. The Division advised the public that “a housing provider

may need to make an exception to a ‘no pets’ policy to permit a tenant with a

disability to keep an emotional support animal (ESA).” N.J. Div. on Civ.

Rights, 5 Things You Should Know About Emotional Support Animals in

Housing (DCR Guidance) (Oct. 6, 2022), https://www.njoag.gov/wp-

content/uploads/2022/03/Fact_ESA.pdf. A person with a disability “can

3
The above analysis does not apply to service animals, which are not subject
to a balancing test. See N.J.A.C. 13:13-3.4(c) (“It is unlawful for any person
to fail or refuse to show, rent or lease any real property to a person because he
or she is a person with a disability who is accompanied by a guide or service
dog or animal.”). “Service dog[s]” are “trained to the requirements of a person
with a disability including . . . minimal protection work, rescue work, pulling a
wheelchair or retrieving dropped items.” N.J.S.A. 10:5-5(dd).
24
request a reasonable accommodation for [an] ESA.” Ibid. If the “disability

and disability-related need for an ESA are not obvious or otherwise known, [a]

housing provider may request reliable documentation from [the person’s]

treating health care professional.” Ibid. The housing provider, in turn, “must

conduct an individualized assessment of [the] request and may deny [it] if

allowing an ESA would create an undue burden on its operations.” Ibid.

In 2020, HUD issued guidance in the form of best practices for housing

providers to comply with the FHA as they assess “requests for reasonable

accommodations to keep animals in housing.” U.S. Dep’t of Hous. & Urb.

Dev., Assessing a Person’s Request to Have an Animal as a Reasonable

Accommodation Under the Fair Housing Act at 1 (HUD Guidance) (Jan. 28,

2020), https://www.hud.gov/sites/dfiles/PA/documents/HUDAsstAnimalNC1-

28-2020.pdf. The HUD Guidance plainly states that “[a]ssistance animals are

not pets.” Id. at 3. The guidance extends beyond service animals to animals

that “provide therapeutic emotional support for individuals with disabilities”

and “alleviate[] at least one identified symptom or effect of a physical or

mental impairment.” Id. at 3, 19. Neither type of animal is subject to pet rules

or policies. Id. at 14. “Thus, housing providers may not limit the breed or size

of a dog used as a service animal or support animal just because of the size or

breed . . . .” Ibid. But providers can refuse a request “if the specific animal

25
poses a direct threat” “to the health or safety of other[s]” “that cannot be

eliminated or reduced to an acceptable level.” Id. at 13.

According to HUD, “resident[s] may request a reasonable

accommodation either before or after acquiring [an] assistance animal.” Id. at

8. If the request lacks information about a person’s disability or the need for

an animal, HUD encourages housing providers “to engage in a good-faith

dialogue with the requestor called the ‘interactive process.’” Id. at 14. And if

a request is denied because “it would impose a fundamental alteration to the

nature of the provider’s operations or . . . an undue financial and

administrative burden, the housing provider should [similarly] engage in the

interactive process to discuss” alternative ways to accommodate a person’s

“disability-related needs.” Id. at 15.

The Division echoes HUD’s guidance in its brief. The Division submits

that “[h]ousing providers may not summarily reject a request.” Instead, they

should “engage in a good-faith discussion with a tenant or resident . . . like the

‘interactive process’ for accommodations in employment.” (citing Victor v.

State, 203 N.J. 383, 414-15 (2010) (discussing an employer’s obligation to

engage in an interactive process in the employment context); Richter, 246 N.J.

at 543 (same)).

26
 D.

In short, in a case like this, a resident of a condominium complex is

entitled under state and federal law to request an accommodation to a pet

policy in order to keep an emotional support animal. The individual must first

demonstrate they have a disability under the LAD. In addition, they must

show that the requested accommodation may be necessary to afford them an

“equal opportunity to use and enjoy a dwelling.” N.J.A.C. 13:13-3.4(f)(2).

The housing provider then has the burden to prove the requested

accommodation is unreasonable.

As part of that process, the parties should engage in a good-faith,

interactive dialogue to exchange information, consider alternative options, and

attempt to resolve or narrow any issues. If that collaborative effort fails and

litigation follows, courts will inevitably need to balance the need for, and

benefits of, the requested accommodation against the costs and administrative

burdens it presents to determine whether the accommodation is reasonable.

See Oras, 373 N.J. Super. at 316-17.
-------

IV.

We now return to the facts of this case and consider them under the

appropriate legal framework. In light of the posture of this case, which we

discuss later, we do so largely to offer guidance for the proper approach to

27
discrimination claims of this type. We rely on the record developed at the

bench trial in the Chancery Division for the following discussion.

A.

The threshold question in an LAD case is whether the person seeking an

accommodation has a disability under the statute. That issue is no longer in

dispute. In a written submission to the Court after oral argument, the

Association stated that “B.F.’s LAD disability is the law of the case.” We

therefore consider the point only briefly.

The chancery court found that B.F. did not have a disability because “no

aspect of her diagnosed conditions . . . prevented her from the normal exercise

of any bodily or mental functions.” In so ruling, the court focused on the first

of two ways to establish a mental, psychological, or developmental disability.

See N.J.S.A. 10:5-5(q) (a disability “which prevents the typical exercise of any

bodily or mental functions”). The Appellate Division properly looked to the

statute’s second ground: “any mental, psychological, or developmental

disability . . . which . . . is demonstrable, medically or psychologically, by

accepted clinical or laboratory diagnostic techniques.” Ibid.

The record amply supports the Appellate Division’s conclusion that B.F.

satisfied the second ground. Experts on both sides diagnosed B.F. with

psychological disabilities. The Association’s expert, Dr. Siegert, testified that

28
B.F. suffered from “bipolar II disorder, major depressive disorder, generalized

anxiety disorder, somatoform disorder, compulsive personality disorder, and

borderline personality type.” Other witnesses testified that B.F. suffered from

post-traumatic stress, attention deficit disorder, and panic disorder as well. 4 3F

As noted earlier, the proofs about B.F.’s medical condition were

developed at trial. The Association, instead, could have asked for more

information in response to B.F.’s initial request for an accommodation. HUD’s

Guidance is instructive on this point. Housing providers can ask individuals to

provide information that confirms they have a disability and need a support

animal, such as a determination from a government agency or a letter from a

health care professional. HUD Guidance at 10; see also Viscik, 173 N.J. at 16

(requiring medical evidence when a disability “is not readily apparent”); DCR

Guidance (same). But “medical records or a medical examination cannot be

required.” HUD Guidance at 14.

B.

In addition to establishing their disability, residents have the initial

burden to demonstrate the accommodation they seek is necessary. B.F. must

4
Whether B.F. disclosed her medical condition on a firearms application form
is not relevant to the legal issues this appeal presents. The Attorney General,
appearing as amicus, can take appropriate steps to address whether B.F. should
be allowed to purchase and own firearms today.
29
show that the accommodation to the Association’s pet policy “may be

necessary to afford” her an “equal opportunity to use and enjoy a dwelling.”

N.J.A.C. 13:13-3.4(f)(2) (emphasis added).

The necessity requirement “asks whether the requested accommodation

ameliorates the disability’s effects.” Bhogaita, 765 F.3d at 1289; see also

Anderson, 798 F.3d at 361 (“Equal use and enjoyment of a dwelling are

achieved when an accommodation ameliorates the effects of the disability such

that the disabled individual can use and enjoy his or her residence as a non-

disabled person could.”); Oras, 373 N.J. Super. at 315 (same). In essence, the

question is whether the accommodation will alleviate at least one symptom of

the disability, not whether the accommodation will cure or eliminate the

disability.

Here as well, trial testimony provided a record for the chancery court.

Rim testified that Luna helped with B.F.’s emotional state. Her depressive

episodes were shorter and more “mild to moderate” than before, and Luna

“helped improve [B.F.’s] ability to cope with day-to-day things” and stressors.

If Luna “were to be taken away,” Rim opined, “that would be very detrimental

to [B.F.’s] health.”

Dr. Cannon testified similarly. She observed that although B.F. “still

suffered from bouts of depression and anxiety,” the episodes “were much less

30
severe,” and Luna “keeps [B.F.] stable.” Cannon opined that Luna “helps

[B.F.] enjoy . . . daily living in [the] condo” and that, if Luna were taken away,

B.F. would decompensate -- “which could be potentially dangerous” -- and

“her condition would deteriorate.”

Dr. Siegert reached a different conclusion. He concluded that Luna had

not “directly ameliorated” any of B.F.’s symptoms and that B.F. “did not

require a dog to have equal use and enjoyment of the [condominium] unit.”

After hearing all the evidence, the chancery court made these findings:

[T]he Court does believe that [B.F.] has demonstrated
that this dog has acted to relieve certain symptoms of
her mental health conditions either by shortening or
lessening them. The dog has also allowed [B.F.] to
remain in the . . . unit without [K.P], which she couldn’t
do before she had the dog. She says the dog sits next
to her if she has an episode in the closet, which helps
her to lessen or shorten the extent of the episode.

....

[B]ecause this particular dog offers [B.F.] comfort and
seems to assist her in lessening her episodes, the Court
is making an allowance for [B.F.] to keep this dog.

(emphasis added).

The Appellate Division similarly observed that “B.F.’s mental health

professionals testified that Luna ameliorated certain symptoms of B.F.’s

disability.”

31
 Both the chancery court and the Appellate Division emphasized that no

mental health professional had recommended or prescribed an emotional

support animal for B.F. The LAD does not require that. As noted earlier, to

satisfy the necessity prong, B.F. had to show that the accommodation she

requested -- the support animal -- would enhance her “quality of life by

ameliorating” one or more “effects of the disability,” Oras, 373 N.J. Super. at

315, and thereby afford B.F. the “equal opportunity to use and enjoy [the]

dwelling,” N.J.A.C. 13:13-3.4(f)(2). For the same reason, B.F. was not

required to establish a specific need for a dog that exceeded the Association’s

weight limit.

Neither B.F. nor K.P. notified the Association in advance of B.F.

acquiring an emotional support animal. Although residents can request an

accommodation before or after getting a support animal, see HUD Guidance at

8, residents who act on their own run the risk of losing the animal if they

cannot make the required showing later. When possible, it is preferable to

engage in a collaborative conversation in advance. At the same time, we

recognize the issue is not a simple one because residents may not know in

advance whether a particular ESA will help ameliorate their symptoms.

32
 C.

In an LAD case, the burden then shifts to the housing provider to prove

the requested accommodation was unreasonable. That question involves a

fact-specific weighing of the relevant costs and benefits. Oras, 373 N.J. Super.

at 315. As noted earlier, housing providers are not obligated “to do everything

humanly possible to accommodate a disabled person.” Ibid. We agree with

the Division that the proper inquiry considers whether “allowing . . . an ESA

would fundamentally alter the housing provider’s operations or impose an

undue financial or administrative burden on the housing provider.” DCR

Guidance.

Whether the animal has been trained is not a relevant consideration

because, “unlike service or guide animals, ESAs are not individually trained to

perform specific tasks associated with their owner’s disability.” Ibid.; see also

HUD Guidance at 1 (noting that “untrained animals” can “provide therapeutic

emotional support”); Warren v. Delvista Towers Condo. Ass’n, Inc., 49 F.

Supp. 3d 1082, 1087 (S.D. Fla. 2014) (same).

Here, the chancery court found “that Luna ha[d] not been at all

disruptive,” “doesn’t bark,” and “is not a nuisance.” The court also noted

“there have been no complaints about this dog.”

33
 As noted earlier, before a housing provider denies a request on

reasonableness grounds, the parties should engage in good-faith, interactive

discussions to evaluate the accommodation and explore possible alternatives.

In this case, no such discussion took place. Written exchanges at the outset

highlight firm positions from the start.

V.

We add one additional point. The chancery court dismissed defendants’

discrimination claims. It granted relief on equitable grounds under its review

of the Association’s breach of contract claim. But in a dispute like this, a

contract claim is ancillary to a discrimination claim. See Pressler & Verniero,

Current N.J. Court Rules cmt. 2.2.1 on R. 4:35-1 (2024) (“[T]he determination

of whether . . . claims are ancillary or primary depends on the overall posture

of the litigation at its inception.”). Two examples help explain why.

If a resident has a disability and requests a necessary and reasonable

accommodation, a condominium association cannot simply deny the request

and prevail by relying on its pet policy. The matter would need to be

addressed under the framework outlined above for discrimination claims.

On the other hand, if a resident falsely asserts that they are disabled, or

has no viable discrimination claim for some other reason, an association might

34
be able to prevail on a breach of contract claim. Either way, however, the

contract claim is secondary to the discrimination claim.

In this case, because B.F. has a disability, and Luna, as a support animal,

is not subject to a pet policy, the dispute could not be resolved under a breach

of contract theory. To the extent any judgment is based on the Association’s

breach of contract claim, it is therefore reversed. 5
4F

The proper starting point is defendants’ discrimination claim. In light of

the record in this case, the chancery court and Appellate Division should not

have dismissed B.F. and K.P.’s claim under the LAD and FHA. B.F. presented

evidence of her need for an accommodation, which the Association disputes.

Whether the Association has shown the accommodation sought is unreasonable

is also disputed. Both of those inquiries are fact-sensitive. See Oras, 373 N.J.

Super. at 315-16.

An additional fact raises a challenging question about the interplay

between the Chancery and Law Division in this appeal. In their second

amended counterclaim, B.F. and K.P. requested a jury trial for their respective

5
In light of our ruling, we do not address the Association’s arguments relating
to the business judgment rule. See Comm. for a Better Twin Rivers v. Twin
Rivers Homeowners’ Ass’n, 192 N.J. 344, 369 (2007) (“Pursuant to the
business judgment rule, a homeowners’ association’s rules and regulations will
be invalidated (1) if they are not authorized by statute or by the bylaws or
master deed, or (2) if the association’s actions are fraudulent, self-dealing or
unconscionable.” (quotation omitted)).
35
claims under the LAD and FHA, and they sought a judgment, damages, costs,

and injunctive relief. The bench trial conducted before the chancery court

addressed the Association’s effort to enforce its pet policy -- not the LAD or

FHA claims that awaited a jury trial. As a result, neither the chancery court’s

findings nor our observations in reviewing what has occurred to date can

substitute for a jury determination on the discrimination counterclaim, which

the parties are entitled to.

We therefore remand the matter to the Law Division for further

proceedings consistent with this opinion. At oral argument, the Association

conceded that it was not contesting disability. In a letter submitted after

argument, the Association stated that “B.F.’s LAD disability is the law of the

case.” That concession settles the threshold question in the discrimination

claim -- whether B.F. suffers from a disability. All of the other issues relating

to the disability claim need to be resolved on remand.

There are ways the parties may streamline any future proceedings. For

example, they can withdraw the jury trial demand. -----
See R. 4:35-1(d) (requiring

the consent of all parties). They can also stipulate to evidence already

presented at the bench trial before the chancery court.

We recognize this dispute began in 2018 and that a good deal of time,

money, and energy has been expended since then. Nothing prevents the parties

36
from engaging in a good-faith, interactive process at this time to try to resolve

the ongoing dispute.

Because of the posture of the case, however, we cannot decide whether

Luna can remain in the condominium complex. The outcome will be

determined in the Law Division. Until then, the Association may not order

defendants to remove Luna from the property.

VI.

For the reasons set forth above, we reverse the judgment of the Appellate

Division, vacate the dismissal of defendants’ counterclaim under the LAD and

FHA, and remand to the Law Division for further proceedings consistent with

this opinion.

JUSTICES PATTERSON, SOLOMON, PIERRE-LOUIS, FASCIALE,
and NORIEGA join in CHIEF JUSTICE RABNER’s opinion. JUSTICE
WAINER APTER did not participate.

37