On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Hudson County.
Dreier and Ashbey. The opinion of the court was delivered by Dreier, J.A.D.
[226 NJSuper Page 301] Plaintiff appeals from the dismissal of its summary dispossess complaint based upon defendant's habitual late payment of
rent. Defendant is a 15-year resident in an apartment complex purchased by plaintiff approximately a year before the proceedings in the trial court. Under the terms of a lease with the previous owner of the apartment, defendant was required to pay his rent on the first of the month. The lease further provided for a $25 late fee if payment was made after the fifth of the month. Upon expiration of the lease, defendant became a month-to-month tenant. N.J.S.A. 46:8-10. Plaintiff's practice apparently was to grant a five-day grace period to its month-to-month tenants. Defendant had accumulated a substantial rent deficiency as of June 1987. He then brought his rental account up to date at or about the time he was served with a Notice to Cease which stated in part:
Your rent for the month of June 1987 has not yet been received. If you continue paying late, we will institute an action to gain legal possession of your apartment.
The notice gave a proper reference to N.J.S.A. 2A:18-61.1 and otherwise was sufficient to identify the apartment and circumstances.
Defendant went to Florida on vacation from July 16, 1987 to August 28, 1987. He had paid his July rent by check dated July 10th received by the landlord July 12th. He mailed the August rent check to his sisters at the New Jersey apartment who in turn forwarded the check to the landlord. It was received by plaintiff August 9, 1987. On August 10, 1987 the landlord forwarded a Notice to Quit, noting the late payment of the July and August rent. The notice was sent by certified mail, return receipt requested, and the post office duly delivered notices to the premises stating that the letter should be picked up. When defendant returned from his vacation, he responded to the notice, but was told by an employee of the post office that the envelope had already been returned to the sender. Plaintiff also contended that it mailed the notice by regular mail at the time the certified mail letter was sent. Defendant denied receiving the regular mail. We note that no certification was
submitted to the court that the regular mail letter had been posted with proper address and sufficient postage.*fn1 Thereafter, defendant paid his September rent on time, and this rent was accepted. The October rent, however, was refused by the landlord.
Judgment was initially entered in favor of plaintiff, with the understanding that defendant could apply to reopen the judgment when he obtained an attorney. He did so, and on rehearing defendant testified that he never received the regular mail letter. The judge then determined that
the presumption of receipt of the notice has been rebutted, and I therefore set the judgment aside and allow the matter to continue for trial.
Rather than proceed, however, to a trial at which plaintiff still could have proven the mailing of the notice in compliance with N.J.S.A. 2A:18-61.2, plaintiff's attorney, apparently misunderstanding the ruling, stated:
Since your Honor has found as a matter of fact and a matter of law that such notice was never received, I believe your Honor can enter a judgment in favor of the Defendant, allowing the record ...