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401 53rd Street, L.L.C v. Juana Cabrera

March 9, 2011

401 53RD STREET, L.L.C., PLAINTIFF-APPELLANT,
v.
JUANA CABRERA, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Hudson County, Docket No. LT-018463-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 7, 2010

Before Judges Payne, Baxter and Koblitz.

401 53rd Street, L.L.C. appeals from a trial court decision dismissing its complaint seeking to evict defendant for gross negligence and damage to property. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Plaintiff served defendant on November 11, 2009, with a three-day notice to quit, pursuant to the requirements of the Anti-Eviction Act, N.J.S.A. 2A:18-61.1(c), based on two separate incidents. Plaintiff alleged in its notice to quit that on August 15, 2009, you defaced with black marker the front door and frame of your apartment, and scribbled that the exterminator murdered [your] dog.

This incident followed a phone call to the office alleging that the exterminator murdered your dog [] by using certain chemicals to treat [your] apartment for roaches.

The notice to quit also alleged that:

On or about October 19, 2009, at approximately 8:30 p.m., you turned on the hot water in the kitchen sink, left the room, and allowed the water to overflow and flood your apartment. The flooding penetrated the ceiling below, causing damage to the ceiling (including causing sections of it to collapse) [and] damage to [the downstairs tenant's] kitchen cabinets, countertop and walls.

N.J.S.A. 2A:18-61.1. provides that:

No 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:

c. The person has willfully or by reason of gross negligence caused or allowed destruction, damage or injury to the premises.

Defendant testified at trial that, although she informed plaintiff, who purchased the building in June 2009, that she was allergic to bug spray, the exterminator sprayed it on the bottom of her apartment door every month. She believed the spray killed her dog, Rusty, and was concerned that her other dog would also be affected by the spray. She tried to get in touch with her new landlord, who did not return her calls.

Defendant testified that in frustration she wrote in washable black marker on the outside of her front door: "Murderer, murderer, murderer. You killed my dog, Rusty, with roach spray. Rusty, rest in peace." Defendant said when her son saw the markings that same day, he expressed his concerns about ramifications from plaintiff. She washed off the message, which left the door looking dirty. To make the door look clean, she and her son repainted the door with paint supplied by the superintendent of the building. Although the superintendent testified that the tenant used black paint, not washable marker, which "still showed" after the repainting, he admitted on cross-examination that no ...


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