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Zoltak v. O'Connor

January 26, 2009

MARK ZOLTAK, AS AGENT FOR JOSEPH GORGA, PLAINTIFF-RESPONDENT,
v.
ANNE O'CONNOR, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Hudson County, Docket No. LT-1082-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 29, 2008

Before Judges Carchman, R. B. Coleman and Simonelli.

This is a landlord-tenant action and an appeal from a judgment of possession entered by the Special Civil Part on March 28, 2006. The judgment was stayed awaiting the resolution of matters pending in other forums. Ultimately, following the disposition of those matters, on November 27, 2008, the judge ordered defendant Anne O'Connor "locked out" of the premises; but extended the lockout date to February 1, 2008, later extended to February 13, 2008. We stayed that order pending appeal. We now reverse and remand for trial.

We briefly summarize the relevant facts. Defendant resides in a "ground floor" or "basement" apartment located at 535 Garden Street, Hoboken, New Jersey. Defendant suffers "major recurrent and chronic depression with anxiety disorders including in part, panic disorder, agoraphobia, and obsessive compulsive disorder (OCD) and is legally disabled by these disorders." She also takes medication on an "as needed basis." According to her treating psychiatrist, when situations are stressful to her, "she is unable to absorb, comprehend, assimilate, process, respond and otherwise relate at a 'normal' rate." In other words, "she needs weeks where others need days, hours when others needs minutes." Defendant was declared disabled in 1991, and her sole source of income is SSI benefits from Social Security, together with assistance from her parents for rent for her rent-controlled apartment.

Defendant has resided in the apartment for approximately eighteen years. The former landlord "apparently tolerated her using the hallway outside her apartment for bookshelves and children's art work" and "the 1991 written lease agreement provided that the landlord have occasional access" to the meters located in the hallways. In 1997, the property was purchased by Joseph Gorga, the current landlord and plaintiff's principal.

In 2005, plaintiff brought a tenancy action seeking possession claiming that defendant would not sign the new rules and regulations that the landlord had proposed. In that action, defendant disputed, among other things, the imposition of new rules and regulations. Defendant claimed that the new rules and regulations were unreasonable due to her mental illness. After a hearing, the judge issued "a written opinion as to what rules and regulations would be appropriate under the circumstances" and gave defendant until September 1, 2005 to sign the new lease. After defendant allegedly refused to sign the new rules and regulations, plaintiff filed for a summary action for possession. Subsequently, the judge issued a letter opinion entering a judgment for possession, effective September 13, 2005, because defendant had not accepted the deadline to sign the new lease. Defendant signed a revised version of the "rules and regulations" on September 29, 2005.

Paragraph 38 of the signed rules and regulations states: "TENANT IS NOT PERMITTED TO LOCK THE HALLWAY DOOR LEADING TO THE BASEMENT OR USE THE COMMON AREA IN THE HALLWAY FOR STORAGE." Defendant apparently did not comply with the rules and regulations, and by letter of September 30, 2005, plaintiff's attorney notified defendant that "the doorway to the common area will be removed... [i.e.] the door that separates the common area in front of [the] apartment and the rest of the building." Despite this being common space and necessary for access to meters and other landlord needs, defendant claimed that "due to her mental disability, she needed to maintain... the hallway [as a] 'buffer zone' between her home and the outside world".

Plaintiff did not remove the door at that time but instead filed a second complaint for possession on January 9, 2006. In the new complaint, plaintiff alleged that, in violation of the new lease, defendant had failed to remove personal items and provide access to the hallway of her apartment. Plaintiff's summary dispossess action was scheduled to be heard on February 7, 2006. During the hearing, defendant's counsel requested a stay of the proceedings so that defendant could file a complaint with the Department of Housing and Urban Development (HUD), which was granted, and later that month, defendant filed a housing discrimination action against the landlord with HUD.

The action was subsequently transferred to the New Jersey Division of Civil Rights.

The February 7th hearing was adjourned to March 22, 2006, at which time the judge concluded that he would "grant the stay." When plaintiff's counsel raised the issue of fees, the judge declined to rule on that issue, stating that "the [fees] may be awarded if you prevail. For the time being, on this motion, you're not prevailing and... I will not allow fees... for the present time." (emphasis added).

On March 22, 2006, the trial judge also visited the premises and reported his observations. Summarizing his observations, he noted that from the street sidewalk, the apartment is accessible "by going down a few steps into what may be considered a subgrade apartment." Defendant's apartment is the only one on that floor. Upon entering the building from the apartment, there is a door with two locks, a hallway and defendant's apartment. In the hallway, there is a shelf about six and a half feet high with shoes and boots on it. Underneath the shelf, there are hooks and a rack with clothing hanging up, but it does not extend any further than the shelf. Across from the shelf, there ...


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