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Miah v. Ahmed

April 04, 2003

KONA MIAH, PLAINTIFF-APPELLANT,
v.
SHRAJ AHMED, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Passaic County, Docket Number LT-1856-02.

Before Judges Petrella, Lintner and Parker.

The opinion of the court was delivered by: Petrella, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 3, 2003

This appeal arises out of a landlord-tenant action in which the landlord, Kona Miah, was required to evict the tenant, defendant Shraj Ahmed, from the premises at 15 Paterson Avenue in Paterson, because under the local ordinances his occupancy was illegal. Although the defendant refused to vacate the premises and stopped paying rent on the unit, the judge in the eviction proceeding conditioned the eviction upon the landlord depositing six months' rent with the court.

These funds, $2,700, were deposited and held pending the determination of a court hearing on the turnover. The landlord also sought to recover the rent due for the period of time when the tenant occupied the rental unit without paying rent. The monthly rent that Ahmad was paying was apparently $450, based on the deposit of the $2,700.

When the judge in the tenancy court ordered the eviction of Ahmad on May 2, 2002, he also ordered that the $2,700 in landlord's funds on deposit were to be turned over to Ahmad immediately. The judge denied the landlord's application for a stay of his order pending appeal.

On May 3, 2002, this Court granted plaintiff's emergent application for a stay of the turnover order pending the determination of his appeal. We specifically directed:

A stay of the turnover of the plaintiff's funds, heretofore deposited in the amount of $2,700 with the Clerk of the Court in Passaic LT-1856-02, to defendant former tenant is granted pending the determination of the appeal or the further order of this Court.

When the landlord's attorney returned to the tenancy court judge he discovered that the deposit monies were already paid out by the Clerk of the Special Civil Part through the finance office on an accelerated basis, notwithstanding that in the usual course it might have taken a week to two weeks which would have allowed time for an emergent application for a stay. Thereafter, however, the Clerk of the Court and the judge were supposed to make efforts to have those funds restored pending our review of the matter.

The transcript of the May 2, 2002 proceeding reflects that for some unknown reason the trial judge intervened in the payment process, thus short-circuiting the appellate process, and insisted on sending his clerk to the finance office to ensure that the tenant was paid the $2,700 check virtually immediately. Furthermore, the transcript indicates that there was another action pending between the same parties, instituted by plaintiff, under docket number DC-354-02 in Passaic County. We take judicial notice of the entries on the jacket of that Special Civil Part matter and it reveals that the same judge as in the tenancy court sua sponte stayed disposition of that case pending disposition of this appeal.

On May 28, 2002, Ahmad filed an emergent application before this Court to vacate the emergent relief that we had granted on May 3, 2002. We denied that motion and also ordered:

However, in view of the fact that the Clerk of the Trial Court prematurely released the deposited funds, and the respondent immediately cashed the check, we hereby authorize a limited remand to the Trial Court, on motion of appellant filed within thirty days hereof, to effectuate a restoration of those funds pending the determination of this appeal and the further order of the Court.

We note at this point that it is not the function of the trial judge to give special assistance to any litigant, particularly at the expense of another litigant and when he has notice of a hotly disputed issue and was clearly advised that an appeal would be promptly filed. We are at a loss to understand why the judge acted in the manner that he did. Moreover, plaintiff's brief informs us that the landlord's attorney obtained an order to show cause, returnable on July 29, 2002, before the same judge who was involved throughout these trial court proceedings, and the judge directed that the funds be returned to the court, but for unstated reasons he reportedly stayed the entry of his order. Furthermore, contrary to our rules and required procedures, the judge did not enter a written order, thus in effect negating the relief ordered by this court *fn1 by this omission. Such action is unsupportable and cannot be tolerated. Even if ...


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