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Hurdle v. Citimortgage

April 28, 2009

KENNETH HURDLE, PLAINTIFF-APPELLANT,
v.
CITIMORTGAGE, INC., DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. DC-2561-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 25, 2009

Before Judges Axelrad and Lihotz.

Plaintiff Kenneth Hurdle appeals from a Law Division order dismissing his unlawful entry and detainer complaint and an order denying his motion for reconsideration. Following a hearing, the judge concluded N.J.S.A. 2A:39-1 was inapplicable to the facts presented at trial, which revealed defendant Citimortgage, Inc., a mortgagee in possession, secured the residential premises following a fire and later prevented re-entry when the municipality issued a notice that residential use of the premises was not permitted.

We have considered the arguments raised in light of the record and applicable legal principles. We affirm.

The following facts were presented at the hearing. Defendant obtained a final judgment foreclosing on a multi-family dwelling located at 180-182 Park Place, Irvington (the premises). Title to the premises was transferred to defendant, following sheriff's sale in April 2002.

Plaintiff occupied the third floor of the premises (the apartment), pursuant to the terms of a two-year written lease agreement he had executed with the former owner on December 10, 2001.*fn1 The third floor was the dwelling's attic, which had been transformed into three rooms. The lease provided plaintiff would pay $300 per month as rental for this space.

On November 18, 2006, the Irvington Fire Department responded to a fire at the premises. Specifically, the fire department extinguished a fire that started in the apartment. Plaintiff escaped the smoke and fire by climbing out a window and onto the roof where he was rescued by a fireman. According to the fire incident report, the exact cause of the fire was not yet determined, however, the firefighters stated an upholstered sofa or chair ignited.

James Suter, Irvington Township's Fire Official, testified that after the fire was extinguished, the department followed accepted safety procedures, which included shutting off the electrical breakers, gas meters, and the water, as needed. Suter explained the homeowner is then informed not to turn on the utilities until an inspection has been performed to determine the origin of the fire.

Suter also testified no one was to return to the apartment because [i]t's an illegal apartment. You can't have [plaintiff]. There's no -- no smoke alarm system in -- by him being on the third floor makes it a three-family apartment. . . . Not legal, but in order to be a three-family house you have to have a hard wired smoke detector system, which it didn't have. All right. He has to have two means of egress from each apartment, which he didn't have and [which] put him in severe danger.

According to Suter, if plaintiff had reentered the apartment, an imminent hazard notice would have been issued and he would have been removed immediately.

Plaintiff left the apartment following the fire, but asserted he returned later that evening and entered through an unsecured rear door. Plaintiff suggested no one advised him against re-entry and he insisted he intended to continue his residency. Upon further questioning, plaintiff admitted he never resumed living in the apartment due to the fire and smoke damage, but over the next two weeks, he went back at night to make repairs*fn2 and remove his personal property. Beginning on the date of the fire, plaintiff secured another monthly apartment rental where he continued to reside at the time of the hearing.

On December 5, 2006, plaintiff delivered a handwritten letter to defendant's counsel, which he stated was in reference to "Habitability Repairs for 180 Park Place, Irvington, NJ." The correspondence characterized the apartment as "in need of significant repair, lately resulting from fire damage[;]" the "entire apartment [wa]s "severely damaged by smoke and ...


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