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Hensyn, Inc. v. McCrae

October 4, 2010

HENSYN, INC., PLAINTIFF-RESPONDENT,
v.
ALICE MCCRAE, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Morris County, LT-2610-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 13, 2010

Before Judges Rodríguez and Grall.

Alice McCrae (Tenant) appeals from the October 3, 2008 judgment of possession in favor of Hensyn, Inc. (Landlord). We affirm.

In March 2007, Tenant signed a one-year lease to reside at Hensyn Village, an apartment complex owned by Landlord.

Tenant's daughter, Elizabeth McCrae (Elizabeth), resided in the apartment with her mother. She also acted as "attorney in fact" for Tenant, and as a fact witness.*fn1

In September 2008, Landlord filed an action for summary disposition based on non-payment of rents. Trial was held before Judge Michael P. Wright. Landlord's property manager, Allan D'Arienzo, testified that Tenant owed rent for August, September, and October 2008, as well as $99 in legal fees and $30 in court costs, which are permitted by the lease.

Elizabeth testified that she sent two $814 checks by certified mail to Landlord on August 29, 2008, as rent for August and September. Photocopies of both checks were entered into evidence, along with copies of the certified mail slip and delivery confirmation receipt. According to her, the checks were never cashed. D'Arienzo testified that the envelope contained only documents, but no checks.

Judge Wright found credible D'Arienzo's testimony that no checks were enclosed in the certified mail envelope. The judge also found credible Elizabeth's testimony that she had mailed the envelope. Judge Wright found that:

I believe [Elizabeth] when [she] told me that [she] put some checks in a parcel[,] that [she] paid $6.92 to send that parcel to the [Landlord] and that, in fact, [she] did just that. However, I... just don't think that [Landlord] has these checks hidden in his back pocket somewhere and is lying to me about receiving them. What I think is that [Elizabeth] sent them, but for some reason they don't have them.

The judge granted a judgment of possession based on the non-payment of $2,571 (three months rent, plus $99 in legal fees and $30 in costs in accordance with the terms of the lease). However, the judgment was conditional. It provided that if Tenant paid the $2,571 together with costs of suit by 1:00 p.m. on Friday, October 10, 2008, then "this matter [will be] dismissed and the Judgment of Possession [would be] vacated." Landlord requested the sum be paid via certified check. The judge so ordered.

Tenant did not comply with the October 3, 2008 judgment. Instead, she filed an ex parte order to show cause to amend the October 3, 2008 judgment so that the funds could be deposited with the court. Judge Wright denied the application. The October 10 deadline for payment of the $2,571 passed without any payment having been made. Tenant filed this appeal on October 14, 2008, challenging the October 3, 2008 judgment of possession.

On October 17, 2008, Judge Wright issued a warrant of removal, ordering Tenant to vacate the apartment within three business days. Tenant then filed an order to show cause seeking a stay, arguing that Landlord was not in compliance with N.J.S.A. 46:8-28, sometimes referred to as the landlord registration act. Judge Wright denied the application, noting that the court had confirmed with the Clerk's Office of ...


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