On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Hudson County, Docket No. LT-1416-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically argued November 16, 2007
Before Judges Weissbard and Gilroy.
Defendant appeals from the March 28, 2006, decision*fn1 of the Law Division, Special Civil Part, Landlord-Tenant Division, that granted plaintiff judgment for possession. Defendant also appeals from the order of June 28, 2006, denying his motion for reconsideration. We reverse.
On November 16, 2001, William Doherty, as landlord, entered into a written lease agreement with Juan Gonzalez, as tenant, for the ground floor and part of the basement of commercial premises at 74 Bowers Street, in the City of Jersey City (City). The lease term was for fifteen years, ending November 30, 2016. Pursuant to the lease, Gonzalez operated a grocery store at the premises. On or about September 1, 2002, defendant purchased the business from Gonzalez. The sale included an assignment of the lease as approved by Doherty. At the time defendant commenced occupancy, the compressors for the store's refrigeration units were located in a detached garage on the property.
In April 2004, plaintiff acquired title to the property from Doherty, unaware of defendant's written lease. On November 24, 2004, plaintiff caused a notice to quit to be served on defendant, stating that the lease was terminated as of December 31, 2004, and demanding that defendant vacate the property on or before that date. The notice did not contain any reasons justifying the termination of the lease. After defendant failed to vacate the leased premises, plaintiff filed a complaint for possession. The action was subsequently dismissed in March 2005.
On November 5, 2005, plaintiff served defendant with a notice to cease for breach of the lease, contending that defendant had failed to: 1) provide insurance required by the lease; 2) "obtain the necessary permits in connection with the relocation of refrigeration [compressors] and an exhaust fan" in the basement of the building; and 3) obtain plaintiff's written approval before making the aforesaid "alterations" to the property. On November 27, 2005, plaintiff served defendant with a notice to quit and demand for possession based on defendant's failure to cure the three "defaults as set forth in the [n]notice to [c]ease." On January 6, 2006, plaintiff filed his complaint demanding judgment for possession.
The matter was tried on March 6, 2006, with the judge reserving decision. On March 28, 2006, the judge issued a written decision, entering judgment for possession:
The notice to quit alleged as grounds for eviction that defendant failed to provide insurance, failed to obtain necessary permits relating to relocation of refrigeration units and an exhaust fan, and made alterations to the property without the consent of the landlord - all contrary to the requirements of the lease.
1. THE REFRIGERATION UNITS/FAN:
I find the defendant's testimony to be credible, to wit[,] that he moved these units at the request of the landlord. However, that request by the landlord did not constitute the tenant's right to violate the law; as he acknowledged, he knew that the job needed a permit. Unfortunately, he left that up to the contractor whom he had hired, but apparently defendant did not follow up to be sure that the permit had issued. Although plaintiff apparently has not been cited for this violation, according to the testimony by Mr. Bruggemann, a permit was required, and the failure to have [obtained] the permit is a breach of paragraph 9 of the lease, justifying a judgment for possession.
2. ALTERATIONS WITHOUT CONSENT:
There was no testimony relating to alterations other than as covered above. Therefore, this allegation does not constitute a sufficient ...