On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Hudson County, Docket No. LT-5394-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and S.L. Reisner.
This is a landlord-tenant case. Defendant Andrew Bartok d/b/a Revelations Consulting, L.L.C. (Bartok) appeals from a September 4, 2007 order granting judgment for possession in favor of his landlord KRGK Realty, L.L.C. (KRGK). We affirm.
These are the most pertinent facts. On February 15, 2004, Bartok and KRGK entered into a five-year commercial lease for first-floor office space and an adjacent rear parking lot at a building in North Bergen, New Jersey. The lease specifically prohibited Bartok from assigning the lease or subletting the premises without the landlord's written consent.
On March 30, 2007, KRKG served Bartok with a notice to quit, citing violations of the lease and damage to the property. The notice alleged that Bartok had "sub-leased or assigned a portion of the demised premises to H&A Tax Services without the landlord's knowledge or consent." The notice also recited that Bartok had failed to remove snow and ice from the premises in violation of the lease. The notice further contended that Bartok had removed a sign from the outside of the building and replaced it with a new sign, and in so doing had caused damage by driving masonry nails into the building. Thereafter, KRKG filed a complaint seeking to evict Bartok pursuant to N.J.S.A. 2A:18-53(c), governing eviction of non-residential tenants.
At the trial on May 8, 2007, KRKG presented testimony from its managing partner, Gary Harrison. According to Harrison, when the first floor space was leased to Bartok, there was a sign on the outside of the building advertising "insurance sales" which brought in customers to a business founded by Harrison's father.*fn1 Harrison testified that Bartok removed that sign without his permission. Also, without Harrison's permission, Bartok put up a sign advertising Bartok's business, Revelations Consulting, and a second sign advertising a tax preparing service called H&A Tax Services. Harrison testified that Bartok attached the Revelation sign to the building with very large nails called "masonry nails" that could damage the building and let water enter.*fn2 Harrison believed that if the sign had been professionally installed, it would have been less likely to damage the building's exterior. Installing the signs violated section 9.02 of the lease, which prohibited the tenant from making alterations or additions to the premises without the landlord's written permission.
According to Harrison, the telephone number advertised on the H&A sign was different than Revelations' phone number. Harrison testified that he did not authorize Bartok to add any co-tenants to the lease or to sublease or assign any portion of the premises. Moreover, H&A was not paying rent to use the building or to maintain a sign on the exterior. Harrison testified that section 4.01 limited the tenant to use the premises only for the tenant's own purposes without the landlord's consent, and sections 15.01 and 15.02 of the lease prohibited assignment or subletting of the lease. The landlord had not given its consent to any use other than for Bartok's business.
Harrison also testified that section 9.02 of the lease required the tenant to remove snow from the parking lot and sidewalk adjacent to the premises. He testified that in February and March 2007, Bartok failed to remove snow from the parking lot despite reminders from the landlord; the snow accumulation posed a liability hazard for the landlord.
On cross-examination, Harrison confirmed that he observed that the nails that affixed the signs actually pierced the siding of the building. In response to questions from the court, Harrison testified that he saw two of the nails protruding from the siding of the building, and noticed that they were "scored" or "grooved" which the judge recognized as characteristic of masonry nails. Harrison testified that he first noticed the unauthorized signs in February 2007; he denied that the signs had been up for two years.
Alejandro Alonso, the managing partner of Revelations, testified for the defense. According to Alonso, he had negotiated the lease with Tom Pahos, Harrison's rental agent, and had originally negotiated to put the lease in the name of Alonso and H&A Tax Service. Alonso then agreed with Pahos to put the lease in the name of Revelations and Bartok. Alonso conceded that when he rented the space, there were signs for Harrison's father's insurance business on the building. However, Alonso also contended that he had told Pahos that Revelations was going to put up signs, and Pahos did not object. He contended that the Revelations signs had been in place since the beginning of the tenancy in 2004. He admitted that Harrison did complain about the H&A sign in 2005. Alonso also testified that the signs were installed using existing nails and that no new nails were driven into the building. He alleged that the H&A signs were put up in 2004, and that Harrison was aware of them.
Alonso contended that Pahos knew that Alonso's business, H&A, was co-occupying the space with Revelations since the inception of the lease. Alonso admitted that H&A and Revelations were separate limited liability corporations. The members of H&A were Alonso, his sister, Bartok, and another Revelations employee. The members of Revelations were Alonso and Bartok. Significantly, Alonso admitted that he ...