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147 Broadway Corp. v. Robinson

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 9, 2008

147 BROADWAY CORP., PLAINTIFF-RESPONDENT,
v.
KIMBERLY ROBINSON, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Passaic County, Docket No. DC-15597-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 16, 2008

Before Judges Sapp-Peterson and Messano.

In this appeal, pro se defendant Kimberly Robinson appeals from the decision of the trial court, following a bench trial, entering a $9,370 judgment in favor of plaintiff, 147 Broadway Corp. (147 Broadway), defendant's former landlord. We reverse.

At trial, defendant testified that she had been a tenant at plaintiff's apartment complex, located at 255 Gregory Avenue in Passaic, since 1987. Although she initially paid rent monthly, in 1998, at the direction of Estella and Douglas Frint, the President and Vice-President, respectively, of 147 Broadway, defendant commenced paying rent on a weekly basis. On June 30, 2005, she received a Notice to Quit directing her to vacate the premises or pay a $200 monthly rent increase. Defendant sought help from the City of Passaic and learned that the property was subject to rent control and therefore plaintiff could not increase the rent to that amount. Defendant notified plaintiff that the proposed rent exceeded that which was authorized. Approximately one week later, defendant received another notice terminating her lease. This time the notice advised defendant that the apartment building was being converted into condominiums.

At this point in defendant's testimony the court questioned defendant as to the relevancy of this testimony. Defendant told the court that plaintiff was supposed to have given her three years notice and to offer her comparable housing if the property was being converted to condominiums. The court pointed out to defendant that she had been in "landlord-tenant court where [she] could have raised these defenses." Defendant explained to the court that she went to mediation. She also explained that she left the apartment because it was uninhabitable and indicated that she had pictures for the court's review. She also explained that plaintiff had started demolishing the building.

The court responded as follows:

Q: Well, before we get to that. Ma'am, you're mixing -- you're mixing all your issues here. You're talking about leaving, notices, and things like that. You had a landlord-tenant action, you settled it, you agreed to leave, and it gave them a judgment of possession.

A: Uh-huh.

Q: So those objections that you had on a legal basis are resolved. You can't raise them again. That was the chance to raise them, I don't want to leave for these reasons. You didn't raise those objections. You chose to leave. So those are not a defense to the money that's due to you now.

A: Okay.

Defendant explained to the court that she attempted to pay her rent between September 2005 and October 2006 but plaintiff would not accept it, and each time plaintiff refused to accept the payment, she sent a letter, which plaintiff signed for. The court once again explained that defendant was precluded from raising these issues because she could have done so before the landlord-tenant court, where she was represented by counsel, did not do so, and as far as the court was concerned, the matter was settled and defendant had no defenses to the action before it for non-payment of rent. We disagree.

New Jersey is an anti-eviction jurisdiction. See N.J.S.A. 2A:18-61.1 to -61.12, the Anti-Eviction Act (Act). As such, under the Act, no residential tenant may be removed from a premises unless the removal is for one of the statutory causes set forth under the Act, N.J.S.A. 2A:18-61.1(a)-(q). Non-payment of rent is one of the statutorily authorized bases for removal of a tenant. N.J.S.A. 2A:18-61.1(a).

Proceedings for removal of a tenant for non-payment of rent are instituted pursuant to N.J.S.A. 2A:18-53 and are summary in nature. See Hous. Auth. of Newark v. West, 69 N.J. 293, 300 (1976). The sole purpose of a summary action instituted by the landlord to recover possession of leased premises is to enable the landlord to obtain speedy recovery of the premises. West, supra, 69 N.J. at 300; Vineland Shopping Ctr., Inc. v. De Marco, 35 N.J. 459, 462 (1961). A judgment of possession enables the landlord to legally enter the property. In the absence of the judgment of possession, a landlord is prohibited from taking possession of residential premises. See Levin v. Lynn, 310 N.J. Super. 177, 183 (App. Div. 1998). Possession of the premises is the only available remedy for nonpayment of rent, because money damages may not be awarded in a summary dispossess action. Hous. Auth. of Morristown v. Little, 136 N.J. 274, 280 (1994).

However, neither a landlord nor tenant are precluded from seeking to recover money damages in a subsequent proceeding. Moyano v. Williams, 267 N.J. Super. 213, 216 (Law Div. 1993).

See Azar v. Jabra, 167 N.J. Super. 543, 552 (Law Div. 1979) (holding a "summary dispossession action is not conclusive or binding as between the parties in subsequent litigation"); see also Berzito v. Gambino, 63 N.J. 460, 469 (1973) (holding tenants were not precluded from seeking to recover rent paid prior to court's ruling in summary dispossession action that landlord had breached the warranty of habitability). N.J.S.A. 2A:18-59.

In the present matter, defendant and plaintiff entered into a Consent To Enter Judgment for Possession (Consent), a settlement agreement that called for defendant to surrender possession to the landlord within ten days of the entry of judgment. The agreement also provided that the "[t]enant shall pay no money[.]" Nowhere in the Consent is there notice to defendant that by reaching this agreement, she waived her right to challenge any subsequent action commenced by the landlord to recover damages arising out of non-payment of rent. Because the Consent did not make clear that by entering into the agreement, defendant was waiving any defenses she may have in any subsequent action for damages arising out of her tenancy, the trial court erred in precluding defendant from raising her defenses to the action.

Reversed.

20080709

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