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Callen v. Sherman''s Inc.

Decided: January 20, 1982.

ANDREW B. CALLEN AND DICKSIE H. CALLEN, HIS WIFE, AND RALPH A. RUNYON, JR., AND PATRICIA S. RUNYON, HIS WIFE, T/A PARD REALTY, PLAINTIFFS-RESPONDENTS,
v.
SHERMAN'S, INC., FLORENCE KARASIK, INDIVIDUALLY, AND JULES KARASIK, DEFENDANTS-APPELLANTS



On appeal from Superior Court of New Jersey, Law Division, Monmouth County.

Michels, McElroy and Coleman. The opinion of the court was delivered by Coleman, J.A.D.

Coleman

[182 NJSuper Page 440] This appeal challenges the constitutionality of the distraint statutes, N.J.S.A. 2A:33-1 et seq. , because the landlord is permitted to seize the tenant-debtor's property with the assistance of a sheriff or constable without notice or prior judicial review. Succintly put, defendants maintain that the statutory scheme contravenes the Fourteenth Amendment's prohibition against a state taking an individual's property without due process of law. The Law Division concluded that (1) the statutory scheme was

constitutional, (2) judgment be entered for plaintiff for $7,418.07 for unpaid rent and (3) the counterclaim be dismissed. For the reasons which follow, we hold the statute is unconstitutional and the counterclaim was improperly dismissed. We affirm the judgment for unpaid rents.

Defendants leased commercial premises from plaintiffs for the purpose of operating a retail store. After defendants fell two months behind in their rent plaintiff instructed a municipal constable to "secure" the premises. The constable placed a distraint on the premises and impounded the goods contained therein. Defendants were advised that they could retake possession of the premises and its contents only if they brought the rent up to date.

One of the defendants thereupon notified the Small Business Association (SBA), which had a security interest in all of the property and fixtures in the leased premises, of the distraint. Plaintiffs gave the keys to the premises to the SBA and it auctioned off all of the goods to satisfy its security interest. Plaintiffs then brought this action for unpaid rent. Defendants counterclaimed for damages arising out of the allegedly illegal distraint.

Distress is a landlord's remedy which has been in existence since the 13th Century, if not before, Elkman v. Rovner , 133 N.J. Eq. 93, 98 (Ch.1943). It permits the landlord to seize and sell the goods of his tenant to satisfy arrearages for rent. 23 N.J. Practice (LeWine, Landlord and Tenant Law) (3 ed. 1962), § 1871 at 5. The remedy has been subject to legislation since 1795. Id. 6. Now codified as N.J.S.A. 2A:33-1 et seq. , it permits the landlord to post a notice of distress at the premises without notice to the tenant, thereby depriving the tenant of any access to the goods contained therein. The tenant may commence an action within ten days to recover the goods. N.J.S.A. 2A:33-9. If he does not, then the goods are appraised and sold at public sale. N.J.S.A. 2A:33-9 and 10. The remedy is not available to a landlord of residential premises. N.J.S.A. 2A:33-1, as amended by L. 1971, c. 228, § 1.

We are in substantial agreement with the trial court opinions in Van Ness Industries v. Claremont Painting , 129 N.J. Super. 507 (Ch.Div.1974), and Porter & Ripa v. 200 Madison Ave. Real Estate , 159 N.J. Super. 317 (Ch.Div.1978), aff'd on other grounds 167 N.J. Super. 48 (App.Div.1979), insofar as they hold that N.J.S.A. 2A:33-1 et seq. fails to afford a tenant due process. Due process requires notice and an opportunity to be heard even if the debtor is deprived of his property for only a brief period of time. Fuentes v. Shevin , 407 U.S. 67, 85-86, 92 S. Ct. 1983, 1996-1997, 32 L. Ed. 2d 556, 572-573 (1972), reh. den. 409 U.S. 902, 93 S. Ct. 177, 180, 34 L. Ed. 2d 165. Since N.J.S.A. 2A:33-1 et seq. permits a landlord to seize a tenant's property without any notice to the tenant and without any prior judicial review it does not satisfy the essential requirements of the due process clause. Id. See, also, North Georgia Finishing v. Di-Chem , 419 U.S. 601, 95 S. Ct. 719, 42 L. Ed. 2d 751 (1975); Sniadach v. Family Finance Corp. , 395 U.S. 337, 89 S. Ct. 1820, 23 L. Ed. 2d 349 (1969). Compare Mitchell v. W.T. Grant Co. , 416 U.S. 600, 94 S. Ct. 1895, 40 L. Ed. 2d 406 (1974), which upheld sequestration procedures because they required the creditor to file a detailed affidavit with a court and post a bond, and afforded the debtor an immediate post-seizure hearing.

Plaintiffs contend that the statutory scheme is valid because the State did not participate in any meaningful way in depriving the tenant of his property. The Due Process Clause of the Fourteenth Amendment only protects against state deprivations of property. Flagg Brothers, Inc. v. Brooks , 436 U.S. 149, 98 S. Ct. 1729, 56 L. Ed. 2d 185 (1978).

Thus, a state statute which permits a warehouseman to enforce a lien by selling goods placed in storage, or which permits a creditor to repossess an automobile without notice to the debtor, does not run afoul of the Due Process Clause because no public

official participates in the taking of the debtor's property. Flagg Brothers, Inc. v. Brooks and King v. South ...


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