On appeal from the Superior Court, Law Division, Essex County
Pressler, Dreier and Gruccio. The opinion of the court was delivered by Pressler, P.J.A.D.
Defendant P.L., Inc., a commercial tenant of plaintiff Olympic Industrial Park, appeals from the denial of its motion made pursuant to R. 4:50-1 for an order vacating the judgment of possession entered against it. We reverse, concluding that under the circumstances a proper exercise of judicial discretion mandated the relief defendant sought.
There is no material dispute of fact. Defendant, which has occupied the demised premises since 1980 at an annual base
rent of almost $120,000, operates thereon its roofing and siding business. It employs 48 people and does about $7,000,000 a year in gross sales. The corporation is wholly owned by Louis Perri, who is also its president and the personal guarantor of its lease obligations. Monthly installments of rent are due on the fifteenth day of each month.
According to Perri's affidavit submitted in support of the R. 4:50-1 motion, he telephoned the office of Edward Cantor, plaintiff's principal, on June 16 and spoke to "a man in the office" about a late rent payment. The person with whom he spoke assured him that the late payment would be acceptable "provided I paid the late charge of five percent." According to the plaintiff's affidavit in opposition, it had during the course of the tenancy accepted late payments accompanied by the late charge 18 times. Perri's affidavit further states that on June 25 he left for Italy where his mother was critically ill suffering from a brain tumor. He left his brother Ralph, the corporation's purchasing manager, "in general charge of the business, although he has no authority to do anything significant without my express authority." On July 2 Ralph advised Perri by transatlantic telephone call to Italy that "eviction papers had come in the mail" alleging nonpayment of both the May and the June rent. Perri advised his brother first that the May rent and tax surcharge had been paid and second that the landlord had agreed to accept the June rent late if accompanied by the late charge. On July 10 Perri and his brother again discussed the matter by telephone, and Ralph told Perri that the "tenancy case was still pending." Perri immediately telephoned plaintiff's attorneys, who instructed him to call Cantor. He then telephoned Cantor, who refused to speak with him. Because of this impasse, as Perri's affidavit continues:
Notwithstanding that my mother was in the hospital in a coma, I arranged to return to the United States immediately. The place where I was staying was Casenza, Italy, about a ten (10) hour drive from the airport in Rome. When I arrived in Rome, I discovered that there were no seats available on any direct
flight to the United States. I then arranged to fly home by way of Buenos Aires, Argentina, leaving Rome on July 11, 1985 at 5:00 A.M. (Italian time). I arrived at Kennedy Airport on July 12, 1985 at 9:00 A.M. (New York time). I immediately proceeded to the office of the Plaintiff and tendered certified checks for the amount due, including rent, interest and late charges. I gave these checks to Mr. Kantor personally. He accepted them and I have not received them back from him.
Cantor has, it appears, accepted not only those payments but each tender of monthly rent thereafter.
On July 11, while Perri was on his way from Rome to New York via Buenos Aires, plaintiff's summary dispossess action was tried. Ralph Perri did not arrange to have an attorney present on behalf of defendant corporation to seek an adjournment or to take any other action. Nor did he seek an adjournment himself or advise the trial judge of any of the foregoing events. He simply represented to the court that the June rent was indeed owing and that he, Ralph, could not pay it in full by the end of that business day. The judgment of possession was thereupon entered.
When all of these facts were brought to the same judge's attention as a result of the ensuing motion for relief pursuant to R. 4:50-1, he expressed his understanding that ...