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Oakwood Towers v. Lev Pribytkov

December 23, 2010

OAKWOOD TOWERS, PLAINTIFF-RESPONDENT,
v.
LEV PRIBYTKOV, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, Docket No. LT-12261-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued July 13, 2010

Before Judges R. B. Coleman and C. L. Miniman.

Defendant, Lev Pribytkov, appeals from a June 30, 2009 denial of an application seeking relief from a May 13, 2009 judgment for possession. We reverse.

Plaintiff, Oakwood Towers, is a federally subsidized senior housing complex located in the City of Orange. Defendant is a disabled septuagenarian who has been a tenant at Oakwood Towers since 2006. Defendant suffers from ailments including, among others, deafness, psoriasis, and skin allergies. He also has problems communicating effectively.

In September 2008, defendant believed his apartment was infested with bedbugs. Defendant contacted the onsite social services coordinator who, in turn, contacted the superintendent. The superintendent inspected the apartment but did not find any evidence of bedbugs. Defendant nevertheless continued to fear he had bedbugs and spoke with the plaintiff's property manager, through whom an appointment was made with an exterminator for December 3, 2008. However, on December 1, 2008, defendant sent a letter to the property manager indicating the appointment was not "feasible." That same day, the property manager sent a letter assuring defendant "the chemicals used are odorless and will not harm residents." That letter stated further that management would not under any circumstances replace any of defendant's furniture, and defendant was informed "[t]he only correspondence from [defendant] should be whether or not [he is] accepting treatment (extermination) that is the only expense [management] will cover." Defendant was warned any further correspondence debating the matter would be placed in defendant's file as proof of defendant's lack of cooperation.

Apparently concerned about the potential health effects of the pesticide, defendant contacted the Essex County Health Commission, which referred the complaint to the New Jersey Department of Environmental Protection (DEP). On January 6, 2009, a DEP inspector visited plaintiff's property and questions were raised whether violations of N.J.A.C. 7:30-9.12(c) existed.*fn1

On January 14, 2009, plaintiff informed defendant by letter delivered by hand that an appointment had been made with the exterminator for January 16, 2009. That letter warned "[i]f you do not comply with allowing access for treatment we (Management) will be forced to commence with legal proceedings against you." Present on January 16, 2009 was the plaintiff's property manager, two exterminators and a DEP inspector. While there, the DEP inspector issued Field Notices of Violation to the exterminator company.

Thereafter, plaintiff sent defendant a Notice to Cease, dated January 27, 2009, citing defendant's failure to allow the exterminator access to his apartment as grounds for eviction. The notice stated that defendant had ten days to contact management and reschedule the date for extermination or defendant may be evicted. On February 11, 2009, plaintiff sent another letter, informing defendant that a February 18, 2009, appointment was scheduled with the exterminator. On the date of appointment, defendant was not home. Thus, he failed to give the exterminator access to his apartment, and the next day, plaintiff sent a Notice to Quit to defendant purporting to terminate his occupancy, effective March 31, 2009.

On April 6, 2009, plaintiff filed a Verified Complaint in the Special Civil Part, Essex County, seeking a judgment for possession based on defendant's alleged violation of the lease agreement and the landlord's rules and regulations. Defendant appeared for trial, pro se, on April 28, 2009. During the trial proceedings, there was a factual dispute as to whether defendant had received certain information required under N.J.A.C. 7:30-9.12(c). The matter was adjourned to allow defendant time to review the information about the pesticide used by the exterminator against bedbugs. On May 13, 2009, the hearing resumed. The trial court found defendant had violated the lease by denying the landlord and the landlord's representatives access into his apartment on January 16, 2009. Earlier the court had stated:

[The notice to] quit alleges that the defendant "refused to permit access to the exterminator." The real issue is access not the extermination itself. I cannot expect an exterminator to complete extermination without first inspecting in order to determine the nature and extent of the problem. That is, for example, roaches, rodents, bed bugs, . . . or other types of infestation. The allegation is that you denied access for the exterminator, and subject to whatever he may want to say it appears to me that the landlord is entitled to evict him based upon his failure to comply with the lease, and allow access. Whatever the exterminator may want to use is not the issue, because as I said the exterminator has to get in first.

Judgment for possession was entered for the plaintiff, and defendant was told he could be evicted after eight days.

On June 16, 2009, defendant made a pro se application for relief from the judgment. The court denied that application, but the landlord agreed to permit defendant to go back into the apartment until June 22, 2009. One June 25, 2009, defendant, now assisted by counsel, returned to court seeking, in the alternative, relief from the judgment under Rule 4:50-1 or an opportunity for a post-judgment cure of any breach of the lease. Although the matter was not concluded on that date, defendant was permitted to go back into the apartment until further order of the court. In the meantime, the matter was rescheduled for June 30, 2009. On that date, the trial court declined to vacate the judgment for possession or to recognize that defendant was entitled to an ...


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