HIBBERT v. BELLMAWR PARK MUTUAL HOUSING CORPORATION et al

Filing 93

OPINION FILED. Signed by Judge Noel L. Hillman on 6/27/14. (js)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
MARK E. HIBBERT,

:
:
:
Plaintiff,
:
:
v.
:
:
:
BELLMAWR PARK MUTUAL HOUSING :
CORPORATION, PAT LEVINS, and :
BOB McCORMICK,
:
:
Defendants.
:
______________________________:

Civil No. 10-5386 (NLH)

OPINION

APPEARANCES:
BARRY J. BERAN, ESQUIRE
BERAN & BERAN, ESQS.
BUILDING C - SUITE ONE
102 BROWNING LANE
CHERRY HILL, NJ 08003
Attorney for Plaintiff Mark E. Hibbert, Sr.
WILLIAM J. MARTIN, ESQUIRE
MARTIN, GUNN & MARTIN
216 HADDON AVENUE
SUITE 420
WESTMONT, NJ 08108
Attorney for Defendants
Corporation and Pat Levins

Bellmawr

Park

Mutual

JOSEPH M. FEENEY
BROWN & CONNERY
6 NORTH BROAD STREET
WOODBURY, NJ 08096
Attorney for Defendant Bob McCormick
Hillman, District J.
Currently pending before the Court are Motion and
Supplemental Motion for Summary Judgment of defendant Bob

Housing

McCormick, and Second Motion for Summary Judgment 1 filed by
defendants Bellmawr Park Mutual Housing Corporation and Pat
Levins (“Bellmawr Park Defendants”).

For the reasons that

follow, the Motions will be granted.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY 2

I.

Hibbert, who is deaf, was a resident of Bellmawr Park, a
non-profit corporation that provides low-cost housing in
southern New Jersey.

Bellmawr Park owns the housing project,

but neither sells nor rents any of the homes to individual
members.

A resident enters into a “Mutual Ownership Contract”

in which the resident agrees to purchase a right of perpetual
use of the dwelling and pay low monthly payments to Bellmawr
Park.

A resident may surrender the dwelling back to Bellmawr

Park, and may sell any improvements he made to the dwelling.
In 2009, Plaintiff expressed an intent to sell the house
and move to Maine with his wife, who is also deaf, and two
children.

Plaintiff met with the Bellmawr Park Board of

Trustees on December 1, 2009 to discuss his intent to sell his
home and terminate his membership in Bellmawr Park.

Hibbert’s

1

Defendants were granted leave to file renewed motions for
summary judgment.
2

The factual background, at that time, was summarized by the
Court in its Opinion entered on March 28, 2013. Those facts
pertinent to the pending motions will be repeated here, along
with additional facts presented by the parties.
2

teenage son, Mark Hibbert Jr. (“Mark Jr.”), served some role as
his interpreter during the meeting.

Defendant Levins and

several other members of the Board also attended the meeting.
According to Plaintiff, he requested that a sign language
interpreter be present, but one was not provided.

Hibbert

maintains that he is unsure of what actually occurred at the
meeting because he could not hear and was unable to understand.
He also contends that he never made a firm commitment to sell
his interest in his property and move to Maine.
Following the December 2009 meeting, defendant Robert
McCormick was contacted by Levins who told him that Hibbert
wanted to sell his home and its improvements.

Following this

initial contact, McCormick and Hibbert engaged in some form of
communications regarding the sale of the property over the
course of several months. 3

During these conversations, Mark Jr.,

at the time a minor, served as the intermediary and interpreter.
Hibbert also made inquiries about properties in Maine.

In

February of 2010, he applied for a loan in the amount of
$124,000 from Peoples United Bank.

On the loan application,

Hibbert listed his contact address as “Maine, TBD.”

In early

March of 2010, the Bank denied the request for the loan.

3

Plaintiff contends that McCormick visited the property
uninvited and was aggressively pursuing the opportunity to buy
Hibbert out.
3

During supplemental discovery, Defendants obtained
documents regarding the purchase of a home by Hibbert in Maine. 4
On January 21, 2010, Hibbert signed a Purchase and Sale
Agreement for the purchase of a mobile home property at 2196
Sanford Road, Lot 28, Wells, Maine.

On February 1, 2010,

Hibbert entered into an Addendum to that agreement executed on
February 24, 2010.
However, it appears that Hibbert changed his mind about
wanting to buy 2196 Sanford Road at some point between executing
those agreements and March 3, 2010.

During supplemental

discovery, Plaintiff’s real estate agent, Donna DuBois Miller,
was deposed and testified that Plaintiff emailed her stating
that he no longer wanted to go through with the deal.

She also

testified that on March 3, 2010, she emailed Hibbert advising
him that the sellers were very upset with Hibbert’s intentions
to back out of the sale of 2196 Sanford Road, that he would lose
his deposit, and that they were considering taking legal action

4

Some documents were obtained from the Maine Human Rights
Commission (MHRC). Hibbert had filed a complaint with the MHRC,
as well as with HUD alleging he was discriminated against at the
closing for the purchase of a home located at 2196 Sanford Road,
Wells, Maine. Hibbert also filed complaints with the MHRC and
HUD alleging he was discriminated against by Pine Tree Estate
Mobile Home Park, located in Maine, for their failure to sell
him a mobile home. However, allegations made in those
complaints, as well as the decisions in those matters, are not
before the Court and, therefore, will not be considered.
4

against him, including payment of legal fees.

She further

testified that as of that date, she considered the sale of 2196
Sanford Road to be “dead.”
Nonetheless, following that email, on March 5, 2010, Mark
Jr. contacted Levins to inform her of his father’s intent to
sell the Bellmawr property and vacate the premises.

Although

the date of his signature is in contention, at some point
Hibbert had signed a “move-out form” which indicated that he was
moving and provided an address in Wells, Maine for future
contact purposes.
On March 7, 2010, Hibbert received a check in the amount of
$20,000 5 from McCormick.

Hibbert originally told the Court that

he did not know what the check was for, that it was handed to
him in an envelope on the day he moved out, and that he had
neither negotiated nor entered into any agreement to sell his
interest in the property.

He admitted depositing the check into

his bank account on March 8, 2010, but states that he did so for
“safekeeping.”

However, during supplemental discovery, it was

5

The Court noted in its previous opinion that, at that time,
“there are no documents in the record establishing the purpose of
the check, or any other documents memorializing the purported
sale of Hibbert’s interest in the property.” The record has
since been supplemented to show that the check was compensation
for Hibbert’s improvements to the property and that the funds
from the check were used as a down payment for the residence he
purchased in Maine a day later.
5

determined through the testimony of Dubois Miller that Hibbert
needed $17,000 in order to close on the Maine property.
On March 7, 2010, Plaintiff and his wife moved out of
Bellmawr Park.

Plaintiff hired a moving truck to assist with

the move and spent the night packing.

Approximately eleven

individuals were present during the move, including Levins and
several members of Plaintiff’s family.

According to Levins, all

of Plaintiff’s belongings were packed and ready to move out that
morning, and she communicated with him during the move primarily
through handwritten notes.
On March 8, 2010, Plaintiff attended a closing to purchase
2196 Sanford Road in Wells, Maine.

During supplemental

discovery, DuBois Miller testified that Hibbert did not have
certified funds available at the closing, but that he had
deposited a check that morning.

She stated that Hibbert went to

the bank that day to withdrawal $17,000 from funds he just
deposited.

Hibbert also signed a HUD-1 Settlement Sheet for the

purchase of 2196 Sanford Road and obtained a Bill of Sale.
Hibbert also executed a Promissory Note and a Security Agreement.
DuBois Miller further testified that following the closing, she
accompanied Hibbert to 2196 Sanford Road, Lot 28, Wells, Maine
at which time he moved in with his family.
Hibbert claims that he was unlawfully evicted and forced to
move out of his home in New Jersey on March 7, 2010, and that
6

Levins, McCormick, and Mark Jr. took advantage of his disability
and engaged in some sort of scheme to acquire his property.

He

points to the hurried nature of the move, McCormick’s aggressive
pursuit of the property, his minor son’s contacts with the
Defendants, the overall lack of communication and confusion
stemming from his disability, the “unexplained” check provided
just two days before he vacated the premises in an amount below
the value of the improvements, and the absence of any documents
memorialized a conveyance of an interest in the property as
evidence that Defendants took advantage of him and forced him
from the property.
Hibbert filed an amended complaint asserting the following
counts against Defendants: (1) breach of contract; (2) violation
of the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A
§ 10:5-12 et seq.; (3) violation of the New Jersey Fair Eviction
Notice Act, N.J.S.A. § 2A:42-10.15 et seq.; (4) violation of the
Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et
seq.; (5) violation of the New Jersey Statute of Frauds,
N.J.S.A. § 25:1-5 et seq.; and (6) violation of the Fair Housing
Act (FHA), 42 U.S.C. § 3601 et seq.
On July 16, 2012, Defendants Bellmawr Park and Levins moved
for summary judgment on the entirety of Plaintiff's amended
complaint.

That motion was granted in part and denied in part.

Count III (New Jersey Statute of Frauds claim), Count IV (ADA),
7

and Count V (New Jersey Fair Eviction Notice Act claim) were
dismissed as to the Bellmawr Park defendants.

Defendants’

request to dismiss the remaining claims, Count I (breach of
contract), Count II (NJLAD), and Count VI (FHA), was denied.
At the time, defendant McCormick, appeared pro se and asked
to join in the Bellmawr Park defendants’ motion for summary
judgment.

Since the motion filed by the Bellmawr Park

defendants did not clearly pertain to him, the Court denied his
request for summary judgment without prejudice.

Since then,

McCormick has obtained counsel and has filed for summary
judgment.

Following the grant of additional discovery,

McCormick filed a supplemental brief for summary judgment and
the Bellmawr Park defendants filed a second motion for summary
judgment.
II.

Those motions are now before the Court.

STANDARD OF REVIEW
Summary judgment is appropriate where the Court is

satisfied that “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S.
317, 330 (1986); Fed. R. Civ. P. 56(c).
An issue is “genuine” if it is supported by evidence such
that a reasonable jury could return a verdict in the nonmoving
8

party’s favor.
248 (1986).

Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

A fact is “material” if, under the governing

substantive law, a dispute about the fact might affect the
outcome of the suit.

Id.

In considering a motion for summary

judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence;
instead, the non-moving party's evidence “is to be believed and
all justifiable inferences are to be drawn in his favor.”
Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir.
2004)(quoting Anderson, 477 U.S. at 255).
Initially, the moving party has the burden of demonstrating
the absence of a genuine issue of material fact.
U.S. at 323.

Celotex, 477

Once the moving party has met this burden, the

nonmoving party must identify, by affidavits or otherwise,
specific facts showing that there is a genuine issue for trial.
Id.

Thus, to withstand a properly supported motion for summary

judgment, the nonmoving party must identify specific facts and
affirmative evidence that contradict those offered by the moving
party.

Anderson, 477 U.S. at 256-57.

A party opposing summary

judgment must do more than just rest upon mere allegations,
general denials, or vague statements.
260 F.3d 228, 232 (3d Cir. 2001).

9

Saldana v. Kmart Corp.,

III. DISCUSSION
Plaintiff concedes in its opposition filed June 10, 2013,
that McCormick is entitled to summary judgment on Counts I, 6 III,
IV, V.

In addition, in its letter opposition to McCormick’s

Supplemental Motion for Summary Judgment filed on December 23,
2013, Plaintiff advised the Court that he “can state no
opposition with regard to McCormick’s Motion for Summary
Judgment concerning dismissal of those Counts of the Complaint
against McCormick dealing with the New Jersey Law Against
Discrimination [Count II] and the Fair Housing Act [Count IV].”
Accordingly, summary judgment shall be granted as to Defendant
McCormick on all Counts.
The remaining Counts against the Bellmawr Park Defendants
are: Count I (breach of contract), Count II (NJLAD), and Count

6

In his opposition to McCormick’s motion for summary judgment
filed on June 10, 2013, Plaintiff conceded that the breach of
contract claim (Count I) should be dismissed as against
McCormick because “no contract existed between McCormick and
Plaintiff.” Several months later, on December 23, 2013,
Plaintiff filed a letter memorandum arguing that “McCormick’s
role in the breach of plaintiff’s contract with Bellmawr Park
was substantial and integral to plaintiff’s forced move out on
March 7, 2010; therefore, McCormick’s Motion for Summary
Judgment with regard to the First Count of the Complaint...must
be denied.” Plaintiff provides no grounds as to why after
admitting that no contract existed and conceding the dismissal
of Count I, that the Court should now hear argument on a
dismissed claim. In any event, as described infra, the breach
of contract claim shall be dismissed because Plaintiff has not
provided sufficient evidence to support his claim that
Defendants created circumstances by which he felt coerced to
leave Bellmawr Park and could no longer occupy his dwelling.
10

IV (Fair Housing).

For the reasons explained below, the

remaining Counts shall be dismissed and summary judgment granted
as to all Defendants.
A. Breach of Contract (Count I)
Hibbert asserts that the Bellmawr Park Defendants breached
the Mutual Ownership Contract when they “wrongfully and
unlawfully removed, evicted and dispossessed Plaintiff and his
family” from the Bellmawr Park property in March of 2010.
Plaintiff avers that, as a result of Defendants’ breach, he and
his family were forced to move out of their home and incurred
substantial expenses.
Under New Jersey law, a breach of contract claim requires
proof of three elements: (1) the existence of a valid contract,
(2) defective performance by the defendant that resulted in a
breach, and (3) resulting damages.

MacWilliams v. BP Prods.

N.A., No.Civ.A.09-1844, 2010 U.S. Dist. LEXIS 124727, at *16
(D.N.J. Nov. 23, 2010) (Kugler, J.) (citing Coyle v.
Englander's, 488 A.2d 1083, 1088 (N.J. Super. 1985)); see also
Peters v. U.S. HUD, No.Civ.A.04-06057, 2006 U.S. Dist. LEXIS
4727, at *10 (D.N.J. Feb. 1, 2006) (Kugler, J.) (internal
citations omitted).

“Under principles of contract law[,] the

construction and legal effect of an unambiguous writing is for
the court and not for a jury.

Summary judgment may be entered

11

in a case where the court is asked to construe contractual
clauses that are clear and unambiguous despite the parties'
differing views as to what consequences flow from those
provisions.”

United States v. Bills, 639 F.Supp. 825, 829

(D.N.J. 1986) (citing Cnty. of Erie v. Am. States Ins. Co., 573
F.Supp. 479, 483 (W.D. Pa. 1983); Wagman v. Carmel, 601 F.Supp.
1012, 1014 (E.D. Pa. 1985)).
Neither party here disputes that the Mutual Ownership
Contract at issue constitutes a valid contract.

Rather, the

parties’ contentions lie with the second and third elements of
the contract claim, i.e., whether Defendants breached the
agreement and Plaintiff suffered damages as a result.

A valid

contract is deemed breached if one of the parties to the
agreement does not fulfill a contractual obligation that it owes
to the other party under the contract.
829.

Bills, 639 F.Supp. at

Further, “[t]o prove resulting damages, a plaintiff must

prove that he suffered a quantifiable loss that was ‘the natural
and probable consequence[]’ of the defendant's breach.”
MacWilliams, 2010 U.S. Dist. LEXIS 124727 at * 16.

The Supreme

Court of New Jersey has interpreted this to require proof that
the plaintiff's alleged damages were “a reasonably certain
consequence of the breach” at the time that the parties

12

contracted.

Id. (quoting Totaro, Duffy, Cannova & Co., LLC v.

Lane, Middleton & Co., LLC, 921 A.2d 1100, 1108 (N.J. 2007)).
Hibbert avers that Defendants breached two provisions of
the Mutual Ownership Contract.

The first provision, Paragraph

5, states in relevant part as follows:
5. The Member shall occupy the dwelling covered by this
Contract as a private dwelling for himself and his
immediate family, and may enjoy the use . . . of all
community property and facilities of the Project, so
long as he remains a Member of the Corporation[,]
occupies the dwelling, and abides by all terms of this
Contract.
The second provision of the Mutual Ownership Contract
upon which Plaintiff bases his breach of contract claim,
entitled Paragraph 18: Peaceable Possessions, provides:
If the Member makes the payments herein required
and performs all of the conditions and agreements
of this Contract, the Corporation covenants that at
all times while this Contract remains in full force
and effect, the Member may peaceably have and enjoy
for his sole use and benefit the property herein
described, and may enjoy use . . . of all community
property and facilities[.]

Hibbert relies on these two contractual provisions to argue
that Bellmawr Park was obligated to allow him to peaceably use
and enjoy his property without interference, so long as he
remained a member of the complex and paid his rent.

According

to Hibbert, Defendants violated this obligation when they

13

“creat[ed] circumstances by which [he] felt coerced to leave and
could no longer occupy his dwelling[.]”
In the Court’s previous Opinion, it was noted that the
factual record was unclear as to the events that occurred
leading up to Plaintiff’s vacating the premises.
referred to the record as “chaotic.”

The Court

Since that decision,

Defendants have engaged in additional discovery and provided the
missing factual pieces.

Particularly, the record now reflects

that Plaintiff had a signed Agreement of Sale to purchase a
property in Maine.

On March 3, 2010, he received an email from

DuBois Miller stating that the sellers were considering taking
legal action against him if he backed out of the deal to buy the
Maine property, and that he might be responsible for legal fees.
Furthermore, although Plaintiff says he did not know what
the $20,000 check was for, it is clear that the $20,000 check
deposited by Plaintiff was needed for a down payment on the
Maine property at the closing scheduled for March 8, 2010.
Indeed, $17,000 was used for that purpose.
Also, Plaintiff’s assertions that he was confused as to
what was happening when he moved out Bellmawr Park and that he
had no intention of moving is not supported by the fact that he
attended a closing on March 8, 2010, paid closing costs from
funds he received from McCormick, signed the necessary
14

documents, and then moved into the Maine property as his
residence immediately after the closing.
Plaintiff did not present any facts to the Court, prior to
the Defendants undertaking supplemental discovery, advising the
Court of the purchase of the Maine property. 7

Plaintiff now

argues that although he attended the closing on March 8, 2010 to
purchase a residence in Maine, and moved in that day, from March
5-7, 2010, he had no place to move.

He states that he sent an

email to DuBois Miller on March 2, 2010 telling her he wanted to
back out of the deal and that DuBois Miller testified that she
considered the deal “dead” as of March 4, 2010.

Plaintiff

maintains that Levins spoke with Mark, Jr., on the evening of
March 5, 2010, and told him that Hibbert was required to move
out.

Hibbert argues he only went through with the deal after

Levins told him he had to leave.

Hibbert further argues that he

had neither secured a mortgage for the Maine property, made
arrangements to have his son enrolled in school in Maine, and
did not order a moving vehicle until March 6, 2010.

7

Hibbert

The Court finds Plaintiffs’ lack of candor to the Court about
the facts surrounding his decision to purchase a home in Maine
to be disingenuous. The Court notes that Plaintiff’s omission
has resulted in not only additional time and cost being expended
by counsel, but has consumed limited judicial resources. The
Court will not take up this issue at this time, however.
Rather, as noted on the docket [No. 80], Defendants have been
granted leave to file motions for sanctions following the
decision on the motions for summary judgment.
15

also argues that he never signed any written agreement to move
out of Bellmawr Park.
Plaintiff has not presented sufficient facts that could
show that Defendants coerced him into leaving.

In the Court’s

prior Opinion, based on the factual record at that time, the
Court could not exclude the possibility that a reasonable juror
could find that Defendants created, or least contributed to,
circumstances under which Hibbert felt coerced to leave.

This

was based on the fact that Hibbert stated he felt overwhelmed
and confused as to what was happening, did not understand why he
was given a check for $20,000, and that he had no intention of
moving to Maine.

The current factual record shows that Hibbert

had intended to move to Maine, found a property, cashed the
$20,000 check in order to provide a $17,000 down payment, and
purchased a home in Maine on March 8, 2010.

Although DuBois

Miller may have considered the deal “dead” on March 4, 2010, she
certainly did not think so a day or two later.

After she

informed Hibbert that he would lose his deposit and would likely
be sued if he backed out of the deal, Hibbert told her he wanted
to proceed.

Although Hibbert argues that he had not made

preparations for a mortgage, schooling, or a moving van, he has
not indicated how any of these facts support a finding that

16

Defendants forced him out of his home rather than just bad
planning on his part.
In viewing the record in the light most favorable to
Plaintiff, the Court finds that Plaintiff has failed to present
sufficient evidence for a jury to conclude that Defendants
interfered with Plaintiff's peaceful use and enjoyment of his
property.

As such, summary judgment on the breach of contract

claim will be granted.
B. NJLAD Claim (Count II)
The NJLAD provides that:
All persons shall have the opportunity to obtain . . .
all the accommodations, advantages, facilities, and
privileges of . . . real property without discrimination
because of . . . disability[.]
N.J.S.A. § 10:5-4.

The Act goes on to specifically state that

it is unlawful to:
discriminate against any person or group of persons
because of . . . disability . . . in the terms,
conditions or privileges of the sale . . . of any real
property[.]
N.J.S.A. § 10:5-12(g)(2).

The Administrative Code accompanying

the Act further indicates that “[i]t is unlawful for any person
to . . . [r]efuse to make reasonable accommodations in rules,
policies, practices or services, when such accommodations may be
necessary to afford a person with a disability equal opportunity
to use and enjoy a dwelling.”

N.J.A.C. § 13:13-3.4(f).
17

By the

same token, however, it has also been recognized that “a duty to
provide a reasonable accommodation for a resident with a
disability does not necessarily entail the obligation to do
everything possible to accommodate such a person.”

Shearn v.

Victoriana Condo. Assoc., 2011 N.J. Super. Unpub. LEXIS 2877
(App. Div. Nov. 23, 2011)(internal citations omitted).
The Third Circuit has recognized that New Jersey courts
typically look to federal anti-discrimination laws for guidance
when construing NJLAD claims.

See Chisolm v. McManimon, 275

F.3d 315, 325 n.9 (3d Cir. 2001) (citing Lawrence v. Nat’l
Westminster Bank N.J., 98 F.3d 61, 70 (3d Cir. 1996)).

In so

doing, courts usually refer to the provisions of the ADA or §
504 of the Federal Rehabilitation Act (“RA”) of 1973.

See

Chisolm, 275 F.3d at 325 n.9 (looking to the ADA for guidance);
Borngesser v. Jersey Shore Med. Ctr., 774 A.2d 615, 621 (N.J.
Super. 2001) (relying on § 504 of the RA); Hall, 777 A.2d at
1009 (“For the purpose of this analysis, there are no
significant distinctions between the RA and LAD claims.”).
Federal law requires entities to take appropriate steps to
ensure that communication with a disabled person is as effective
as communication with others that are not disabled.

Chisolm,

275 F.3d at 325 (citing 28 C.F.R. § 35.160(a)) (discussing
Federal Regulations with respect to the ADA).

With respect to

disabled individuals suffering from deafness, this typically
18

requires the furnishing of an “appropriate auxiliary aid.”
at 326.

Id.

The Code of Federal Regulations identifies the

following programs and services as recognized auxiliary aids:
Qualified
interpreters,
notetakers,
transcription
services,
written
materials,
telephone
handset
amplifiers, assistive listening devices, telephone
compatible with hearing aids, closed caption decoders,
open and closed captioning, telecommunications devices
for deaf persons (TDDs), videotext displays, or other
effective methods of making aurally delivered materials
available to individuals with hearing impairments.
28 C.F.R. § 35.104(1).

The Regulations further indicate that

primary consideration should be given to the requests of the
disabled individual in determining which auxiliary aid or
service is necessary, and that, although written materials may
be sufficient for effective communication in some instances, a
qualified interpreter may be necessary if the information at
issue is particularly complex.
Pt. 35, App. A.

28 C.F.R. § 35.160(b)(2); id.

Further, the entity should bear the cost for

providing the reasonable accommodation.

See Soto v. City of

Newark, 72 F.Supp.2d 489, 496 (D.N.J. 1999).
Federal law, however, only requires that “appropriate”
auxiliary aids be provided; it does not “mandate services which
produce the identical result or level of achievement for
handicapped and non-handicapped persons[,] so long as they
afford handicapped persons equal opportunity to obtain the same
result, to gain the same benefit in the most integrated setting

19

appropriate to the person’s needs.”

Borngesser, 774 A.2d at

622-23 (citing 45 C.F.R. § 84.4(b)(2)) (internal quotations and
ellipsis omitted).

Further, “[w]hat auxiliary aids would be

required is a fact-sensitive issue that must be considered
within the parameters of what is meant by ‘effective
communication.’”

Borngesser, 774 A.2d at 623.

The New Jersey

Superior Court has indicated that there is no singular
definition of “effective communication.”
string citation omitted).

Id. at 624 (internal

Rather, as noted by the Third

Circuit, “the effectiveness of auxiliary aids and/or services is
[typically] a question of fact precluding summary judgment.”
Chisolm, 275 F.3d at 326.
In this case, Plaintiff asserts that he is unable to
understand and communicate proficiently in the English language,
and that his native language is ASL. 8

He states he does not know

8

Although ASL is related to the English language, it is unique
in nature. As noted by a law review article cited by the Superior
Court of New Jersey:
Although derived from English, ASL is a distinct
language "with a separate historical tradition, and
separate morphological and syntactic principles of
organization." For example, while an English speaking
person might ask "[h]ave you been to San Francisco?," an
ASL user might sign ""[t]ouch San Francisco already
you?"" While an English speaking person might ask, "What
are your hobbies?," an ASL user might sign, "Time off do
do do?" Moreover, ASL is based on a limited number of
signs representing primarily concrete terms, and thus
the average ASL user has a limited knowledge of English
words.
20

how to read lips.

Further, while he has previously utilized

note taking, written materials, and certain types of videotext
displays as auxiliary aids, he has testified he only uses these
methods to transcribe and interpret short messages and thoughts.
During important events or situations involving complex
information, Hibbert states that he always requests that an ASL
interpreter be present.

While several members of his family

have previously assisted him in translation throughout his life,
none of them are certified ASL interpreters.
In the Court’s previous Opinion, the Court noted that
Hibbert did not identify when and where Defendants denied him a
reasonable accommodation.

The Court found that the only

relevant events during which Hibbert may have been denied a
reasonable accommodation would have been the December 2009
meeting with the Board of Trustees and the events surrounding
the departure from his home on March 7, 2010.

The Court

concluded at that time that there were too many unsettled facts
surrounding Hibbert’s communications prior to and during the
move in order for the Court to decide as a matter of law that
Defendants did not discriminate against him by failing to

Borngesser, 774 A.2d at 618 n.1 (citing Bonnie Poitras Tucker,
Access to Health Care For Individuals with Hearing Impairments, 37
HOUS. L.R. 1101, 1105-06 (2000) (footnotes omitted)).
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reasonably accommodate his disability.

This was based on an

unclear record about whether Plaintiff wanted to move, and the
circumstances regarding the conveyance of the $20,000 check and
what relationship it had to the undocumented purported sale of
Plaintiff’s interest in the property.
The record now, however, does not support Plaintiff’s
contention that he was overwhelmed and confused over the events
leading up to his move from Bellmawr Park.

Rather, evidence in

the record shows that Plaintiff purchased and moved into a
residence in Maine right after he moved out of Bellmawr Park,
and that he used the money paid to him for improvements to the
Bellmawr Park house as a down payment on the Maine residence.
The evidence shows that rather than Plaintiff having been
confused about what occurred, he simply changed his mind and
wanted to move back to Bellmawr Park.

His real estate agent,

DuBois Miller, testified that after Hibbert bought the Maine
property and moved in, he notified her that he was unhappy and
wanted his money back.

DuBois Miller testified that she told

him that the only way to get his money back would be to sell the
property.
Thus, the facts demonstrate that after Plaintiff decided to
move to Maine, he changed his mind and told his real estate
agent on March 3, 2010 that he no longer wanted to move.
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After

she advised him he would lose his deposit money and may be sued
by the sellers, he changed his mind again and decided to move.
After purchasing the property in Maine, Hibbert again changed
his mind and wanted to move back to Bellmawr Park.

Although

Hibbert may have had mixed feelings leading up to the move to
Maine, and may have later regretted his decision, there is no
evidence that he did not fully understand what was happening.
Nonetheless, Hibbert has argued that Defendants failed to
provide him with an ASL interpreter during these events.

The

Defendants have maintained that an alternative effective means
of communication was used.

Hibbert has not provided evidence to

support a finding that other means of communication, other than
an ASL interpreter, were not effective during these events.

See

Hall v. St. Joseph's Hosp., 777 A.2d 1002, 1014 (N.J.Super.A.D.
2001) (plaintiff maintains burden of proof if defense of
alternative effective means of communication is raised).
Accordingly, the Court will grant summary judgment on the NJLAD
claim.
C. Plaintiff's Fair Housing Act Claim (Count VI)
The Fair Housing Act ("FHA") was designed to “provide,
within constitutional limitations, for fair housing throughout
the United States.”

Eastampton Ctr., LLC v. Twp. of Eastampton,

155 F.Supp.2d 102, 116 (D.N.J. 2001) (quoting 42 U.S.C. § 3601).
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With respect to disabled individuals, the FHA specifically
states as follows:
It shall be unlawful . . . [t]o discriminate against any
person in the terms, conditions, or privileges of sale
or rental of a dwelling, or in the provision of services
or facilities in connection with such dwelling, because
of a handicap of that person.
42 U.S.C. § 3604(f)(2)(A).

The FHA further provides that the

term "discrimination" includes "a refusal to make reasonable
accommodations in rules, policies, practices, or services, when
such accommodations may be necessary to afford such person equal
opportunity to use and enjoy a dwelling[.]"
3604(f)(3)(B).

42 U.S.C. §

A violation of the FHA may be established by

showing that the challenged action was either: (1) motivated by
intentional discrimination, or (2) resulted in a discriminatory
effect, even absent evidence of a discriminatory motive.
Eastampton, 155 F.Supp.2d at 110 (internal citations omitted);
see also Torres v. Franklin Twp., No.Civ.A.09-6282, 2011 WL
6779596, at *6 (D.N.J. Dec. 22, 2011) (Rodriguez, J.) (internal
citations omitted).
Hibbert's FHA claim is essentially a re-characterization of
his NJLAD and breach of contract claims.

As expressed above,

based on the supplemental record now before the Court, Hibbert
has not provided evidence that Defendants discriminated against
him by failing to reasonably accommodate his disability during
the move.

There is insufficient evidence that Defendants failed
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to accommodate Hibbert's disability or interfered with the use
and enjoyment of his home.

Any subjective belief by Plaintiff

that he was being forced from his home was not due to any
confusion created by Defendants by an alleged failure to
accommodate his disability.

Accordingly, summary judgment will

be granted.
IV.

CONCLUSION
For the reasons set forth above, Defendants' Motions for

Summary Judgment will be granted.
An appropriate Order follows.

s/Noel L. Hillman
At Camden, New Jersey

DATED: _

NOEL L. HILLMAN, U.S.D.J.

June 27, 2014___

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