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229-233 Phoenix Property, L.L.C. v. Rivera

January 7, 2008

229-233 PHOENIX PROPERTY, L.L.C., DANIEL M. COLLINS, AND EECCGROUP, L.L.C., PLAINTIFFS-RESPONDENTS,
v.
LUIS AND IXCIA RIVERA, DEFENDANTS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Hudson County, Docket No. LT-12328-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 17, 2007

Before Judges Parrillo and Graves.

Defendants Luis and Ixcia Rivera, husband and wife tenants, appeal from three orders of the Special Civil Part:

(1) on January 20, 2004, entering judgment for possession in favor of plaintiffs landlord, 229-233 Phoenix Property, L.L.C., Daniel M. Collins and EECCGROUP, L.L.C. (collectively "landlord"), for the eviction of defendants from rent controlled premises under N.J.S.A. 2A:18-61.1(g)(2); (2) on January 20, 2006, finding that defendants did not exercise their right of first refusal to reoccupy the subject premises upon completion of renovations at market price rent pursuant to the court's January 20, 2004 order and denying defendants' motion for summary judgment; and (3) on July 31, 2006, denying defendants' motion for reconsideration. We affirm.

By way of background, the building in question is an eight-family, side-by-side, brick structure located at 231 Third Street, Jersey City, subject to the Jersey City Rent Control Ordinance, Jersey City, N.J., Municipal Code § 260-1 to -20 (1986). Defendants lived in apartment 2L for twenty-eight years until they were forced to relocate on April 30, 2004, because the building was scheduled for extensive structural renovations due to numerous municipal and State safety code violations. Ixcia Rivera is disabled and suffers from multiple sclerosis. According to the landlord's registration statement filed with the City of Jersey City Rent Control Agency, the last registered rent control rent paid by defendants for apartment 2L was $273.25 per month, the last registered base rent control rent being $632.19 per month.

To secure the eviction of defendants, plaintiffs filed a complaint in the Special Civil Part on July 14, 2003, pursuant to N.J.S.A. 2A:18-61.1(g)(2). Following trial on October 8, 2003, the court granted judgment for possession to plaintiffs and awarded defendants relocation expenses to be determined by the parties.

Defendants still occupied apartment 2L a few months later and another hearing was held on January 12, 2004 to finalize defendants' relocation plan. At the conclusion of that hearing, the court awarded defendants the maximum statutory relocation expenses to move to another building. Specifically, defendants were awarded a moving expense allowance, $300, plus a dislocation allowance, $200, pursuant to N.J.S.A. 20:4-4(b), totaling $500, and a $4000 rental stipend, pursuant to N.J.S.A. 20:4-6(b), for a total award of $4500. Defendants would be given until April 30, 2004 to vacate the apartment.

Defendants were further granted a right of first refusal to reoccupy apartment 2L, conditioned, however, on payment of market rent upon completion of the property's renovation and defendants' submission to a credit review to determine capacity to pay market rent. In fact, in rejecting defendants' objection to the credit check condition, the trial judge reasoned:

Yeah, but, but the problem is . . . that [Mr. Rivera] gets the right of first refusal, but he's now going into a unit that will have a market rent. And . . . the owner is entitled to, to an assurance that [Mr. Rivera] will be able to afford that market rent.

[T]he bottom line is there's a new landlord/tenant relationship that's being created [when the Riveras exercise their right of first refusal]. . . . I don't have the power or the authority to dictate to this landowner under what circumstances he is going to re-rent this unit to Mr. Rivera.

All I can do is get a consent from him that he will give [Mr. Rivera] a right of first refusal. [(emphasis added).]

Other colloquies between the court and counsel leave no doubt as to the termination of tenancy rights and the right to reoccupy at market rate:

MR. KURZEJA [defendants' counsel]: Your Honor . . . I want to add one thing on behalf of Mr. Rivera. He suggested to me that his desire to move back to 23[1 Third Street] when complete is so great that he would be willing to pay the freight. Even with a rehab . . . he acknowledges that the rent is going to be higher.

THE COURT [responding to above comment but directing statement to plaintiffs' counsel]: Yeah, well that was . . . I understood from statements made on the record the last time by your client [Collins], who is now present here in court, that that's no problem, he [Mr. Rivera] occupying that particular apartment. But ...


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