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Heritage Apartments v. Evans

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 7, 2010

HERITAGE APARTMENTS, PLAINTIFF-RESPONDENT,
v.
MILDRED EVANS, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, LT-029822-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 15, 2010

Before Judges Rodríguez and Chambers.

On December 24, 2007, following a hearing in the Special Civil Part (Landlord/Tenant), Essex County, a judgment of possession was entered against Mildred Evans and in favor of Heritage Apartments (Heritage). She appeals from this judgment. We affirm.

The judgment of possession was premised on the grounds that Evans committed an assault on Abdul Cook, a security officer employed by Heritage. Pursuant to N.J.S.A. 2A:18-61.1, Evans was subject to eviction. The statute reads in pertinent part:

Grounds for removal of residential tenants.

No lessee or tenant or the assigns, under-tenants or legal representatives of such lessee or tenant may be removed by the Superior Court from any house, building, mobile home or land in a mobile home park or tenement leased for residential purposes . . . except upon establishment of one of the following grounds as good cause:

o. The person has been convicted of or pleaded guilty to, or if a juvenile, has been adjudicated delinquent on the basis of an act which if committed by an adult would constitute an offense under N.J.S.A. 2C:12-1 or N.J.S.A. 2C:12-3 involving assault, or terroristic threats against the landlord, a member of the landlord's family or an employee of the landlord; . . . No action for removal may be brought pursuant to this subsection more than two years after the adjudication or conviction or more than two years after the person's release from incarceration whichever is the later.

Three months earlier, on September 10, 2007, Evans was found guilty in the Newark Municipal Court of simple assault upon Cook, N.J.S.A. 2C:12-1a. Consequently, Heritage sought to evict Evans. Judge Dennis F. Carey, III heard testimony from Cook, Gregory Bohlke, an eyewitness to the assault, and Evans. The judge made an independent finding that Evans had committed the assault on Cook and entered a judgment for Possession and Order for Orderly Removal on December 24, 2007. There was no timely appeal from this decision. However, upon Evans's application, the judge stayed the judgment on March 23, 2008 pending appeal of the Municipal Court conviction.

After a trial de novo in the Law Division, Evans was convicted again by Judge Peter J. Vazquez of simple assault on Cook. This decision was not appealed. Thus, Evans's conviction became final.

Heritage proceeded with the eviction of Evans. However, Evans made an emergency application to us. On December 17, 2008, we granted a stay of eviction "pending the outcome of this appeal." We allowed Evans to file a notice of appeal nunc pro tunc from the judgment of possession. Her stay of eviction was conditioned upon her continuing payment of rent.

Evans filed a notice of appeal in which she indicated that her eviction was sought for two reasons, both of which she disputed. She contended that:

Landlord asserts that his employee was 'physically struck' by me, but the evidence presented does not prove this as a fact. But still I was charged with 'Simple Assault.' Thereby, the Landlord seeks to evict me relevant to this.

She also contended that she was being evicted for non-payment of rent. In particular, Evans contends:

BASED ON THE WARRANT FOR REMOVAL ISSUED AUGUST 18, 2009 THE APPELLANT IS BEING EVICTED FOR NON-PAYMENT OF RENT. THE APPELLANT HAS SUBMITTED NUMEROUS TIME[S] PROOF OF PAYMENT FOR RENT. EXHIBIT K AND HERITAGE'S RESPONSE BRIEF.

We disagree with this contention.

It is clear that Evans was evicted on the grounds that she assaulted Cook, an employee of Heritage. Judge Carey found that she did in fact commit the assault on Cook and that this was a basis for eviction pursuant to N.J.S.A. 2A:18-61.1o. These findings are amply supported by the record before him. Therefore, these findings are binding on us. State v. Locurto, 157 N.J. 463, 471 (1999). We have no basis to interfere. As stated above, the finding by Judge Carey is independent but similar to the guilty findings reached in the Newark Municipal Court and by Judge Vazquez.

We note that it is irrelevant that Evans paid "rent" during the period of the stay. This was merely a condition of the stay, which was imposed after the entry of the judgment of possession. Upon the filing of this decision, the stay expires.

We also note that, despite the fact that Evans filed a notice of appeal pro se on December 9, 2008, on the eve of oral argument she sought an adjournment in order to retain an attorney. She made this request again at oral argument and presented a letter from an attorney who asked for an adjournment so that he could decided whether to enter an appearance. This request was denied.

Affirmed.

20100407

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