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Levin v. Lynn

April 24, 1998

GARY LEVIN AND DONNA LEVIN, PLAINTIFFS-APPELLANTS,
v.
ADRIAN LYNN, DAVID B. MILLER, LORRAINE MILLER, FOX & LAZO REALTORS, INC., JAMES DOWNING, JOHN DOES, LATTER NAME BEING FICTITIOUS DEFENDANTS-RESPONDENTS.



Submitted February 18, 1998

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

Before Judges Long, Stern and Lesemann.

The opinion of the court was delivered by: Lesemann, J.s.c. (temporarily assigned).

Plaintiffs appeal from a summary judgment dismissing their complaint against defendants seeking damages for an alleged unlawful entry and detainer in which, they claim, their personal property was removed from an apartment they occupied, was left exposed to the elements, and was severely damaged. Their complaint sought damages against their landlords, defendants David B. Miller and Lorraine Miller (the Millers); against Fox & Lazo Realtors, Inc. (Fox & Lazo), the brokers who had originally rented the apartment to plaintiffs and who had also re-rented the apartment to a new tenant who allegedly actually removed plaintiffs' belongings; and against Adrian Lynn, (Lynn) an employee of Fox & Lazo, who had represented plaintiffs and the Millers in the transaction and who allegedly told the new tenants they were free to remove plaintiffs' belongings.

We are satisfied that plaintiffs demonstrated a prima facie case of unlawful actions by the defendants sufficient to withstand a motion for summary judgment and accordingly we reverse. *fn1

The facts of the case, viewed as they must be in the light most favorable to plaintiffs, Brill v. Guardian Life Ins. Co., 142 N.J. 520 (1995), Judson v. People's Trust Co. of Westfield, 17 N.J. 67 (1954), can be set out briefly.

In 1991 plaintiffs leased from the Millers an apartment in Mays Landing known as 4832 Brecknock Court where they lived until 1994. In that year the Millers instituted a summary dispossess proceeding against plaintiffs for nonpayment of rent and in July 1994 they obtained a judgment for possession of the apartment. However, no warrant for possession issued and, at least initially, the parties seemed to be moving toward a relatively amicable termination of their relationship. Adrian Lynn, who had rented plaintiffs the apartment in 1991 now rented them another apartment within the same condominium complex, just a few doors away. *fn2

On or about August 2, 1994, Lynn began negotiating with James and Rochelle Downing as prospective tenants for the apartment being vacated by plaintiffs. The Downings signed an application to rent the apartment and on August 9 signed a form of lease and delivered a check for the first month's rent. Eventually that lease was signed by the Millers, but that apparently happened only on or about August 29. The commencement date of the lease was September 1, 1994.

During August 1994 plaintiffs began moving their belongings from their old apartment into their new dwelling. Some time before August 10 they began sleeping in their new residence while many of their belongings were still in the old unit. Almost simultaneously, the Downings began preparations to occupy 4832 Brecknock Court. On August 12 they signed a hand-printed addendum to their lease, apparently prepared by Lynn, listing certain repairs to be made by them and others to be made by the landlord. On August 10, 1994, a number of articles belonging to plaintiffs and still in the premises at 4832 Brecknock Court were removed from the apartment, placed in the backyard, and so severely damaged by the elements as to be virtually destroyed. Plaintiffs claim they lost golf clubs and other equipment, suitcases and clothing, all of which had a value of several thousand dollars. There is no question that James Downing, either by himself or with assistance from his family, accomplished that removal and at the same time had the locks changed on the apartment.

Plaintiff's complaint named Downing as a defendant but he was apparently never served with summons and complaint. *fn3 Nevertheless, on the summary judgment motion the court was presented with a lengthy, somewhat rambling certification apparently prepared by James Downing. *fn4 In it Downing describes a conversation with Lynn in which he says he asked her "about the things in the house." He says that in response, "she said give Mr. Levin about three days if it is not out by then get rid of it because it did not belong to them anyway." Later in that same certification Downing describes a conversation he says he had with Mrs. Levin in which she said that neither she nor her husband had any interest in any of the articles remaining in the house and in which (according to Downing) she acquiesced in his stated intention to put the remaining articles in the backyard. Mrs. Levin denies making any such statement.

I

The first count of plaintiffs' complaint is based on an alleged unlawful "entry and detainer." The applicable statutes include N.J.S.A. 2A:39-1 and N.J.S.A. 2A:39-2, the relevant portions of which read as follows:

N.J.S.A. 2A:39-1. No person shall enter upon or into any real property...and detain and hold the same, except where entry is given by law, and then only in a peaceable manner. With regard to any real property occupied solely as a residence by the party in possession, such entry shall not be made in any manner without the consent of the party in possession unless the entry and detention is made pursuant to legal process as set out in N.J.S. 2A:18-53 et seq. or 2A:35-1 et seq.

N.J.S.A. 2A:39-2. If any person shall enter upon or into any real property and detain or hold the same... by putting out of doors, or carrying away the goods of the party in possession,...such person shall be guilty of a forcible entry and detainer within the meaning of this chapter. With regard to any real property occupied solely as a residence by the party in possession, if any person shall enter upon or into said property and detain or hold same in any manner without the consent of the party in possession unless the entry is made pursuant to legal process as set ...


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