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350 Main Street LLC v. Ren Guan Li D/B/A Sun Hing Restaurant

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 21, 2011

350 MAIN STREET LLC, PLAINTIFF-RESPONDENT,
v.
REN GUAN LI D/B/A SUN HING RESTAURANT, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-3732-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 3, 2010

Before Judges Wefing, Payne and Baxter.

Defendant, Ren Guan Li, d/b/a Sun Hing Restaurant, a commercial tenant, appeals a February 18, 2010 amended judgment of possession entered against defendant and in favor of the plaintiff landlord, 350 Main Street LLC. Following our review of the record of this matter in light of applicable law, we affirm.

I.

On April 17, 2006, defendant entered into a commercial lease with predecessor landlord QAD, Inc., intending to utilize the leased space as a Chinese restaurant. Paragraph 5 of the lease*fn1 required defendant, as tenant, to maintain the premises, but provided that the landlord would be responsible for structural repairs and repairs to the heating, plumbing systems and the water/sewer lines. Paragraph 6 prohibited defendant from making alterations and improvements to the premises without written approval by the landlord. Pursuant to paragraph 8, defendant was not responsible for payment of water charges, but defendant was required to pay for all other utilities. Paragraph 28 granted to the landlord and its agents a right of entry for the purposes of inspection and performance of necessary repairs or alterations. Paragraph 21 itemized events of default under the lease, including non-payment of rent and the non-performance of any covenants and conditions of the lease following written notice and an unspecified period for cure. Paragraph 22 provided:

If an Event of Default occurs, the Landlord may, at any time thereafter, terminate this Lease and the term hereof, upon giving to the Tenant five (5) days notice in writing of the Landlord's intention so to do. Upon the giving of such notice, this Lease and the term hereof will end on the date fixed in such notice as if such date was the date originally fixed in this Lease for the expiration hereof; and the Landlord will have the right to remove all persons, goods, fixtures and chattels from the Premises, by force or otherwise, without liability for damage.

On August 29, 2007, the lease was assigned to 350 Main Street, an entity owned by Olivia and Albert Chen, following its purchase of the property.

Landlord-tenant difficulties, which had also manifested during QAD's period of ownership, continued. As the result of an inspection conducted on August 29, 2007, defendant was found to have grease containers in the rear yard with improper loose-fitting lids that also lacked a removable cap to permit filling of the drums. Additionally, the water drainage system improperly emptied into the driveway, creating free-standing water in the area where the containers, which were not properly raised off the ground, were stored. An old stove had been discarded behind the restaurant that served as a potential harbor for vermin, and debris was present in the area around the grease containers. Defendant was ordered to stop the water flow in the vicinity of the grease containers; clean the area around the containers; raise, clean and maintain the containers; remove the old stove; and repair an opening along the bottom panel of the restaurant's storm door that permitted entry by vermin. The facility was issued a "conditional" placard as the result of the inspection.

In a November 16, 2007 letter, counsel for plaintiff advised defendant of issues that defendant needed to address, consisting of (1) improper installation of a heating system in violation of building codes, resulting in the emission of gasses into the ceiling of the restaurant, thereby creating a health and fire hazard; (2) improper installation of an indoor climate system, requiring repair; (3) unauthorized use of more than fifty percent of the basement area; and (4) improper discharge of water from the restaurant's ice machine into the area containing the grease containers, which were improperly sealed, thus causing a rodent problem. A demand for cure of the cited conditions within ten days was made.

On November 26, 2007, Albert Chen and the restaurant were cited for maintaining a public health nuisance as the result of the presence of foul-smelling cooking oil all over the driveway.

A January 23, 2008 letter to counsel for defendant advised that rent had not been paid for the months of December 2007 and January 2008 and demanded immediate payment. A summary action for possession as the result of non-payment of rent was filed against defendant on March 11, 2008.

In late February and early March 2008, a dispute arose as the result of defendant's attempt to deny access to the property to plaintiff's plumber and electrician to re-establish a supply of hot water to the building's residential tenants. When matters were not resolved, on March 18, 2009, plaintiff filed a verified complaint and order to show cause in the Chancery Division seeking access to the property. That complaint alleged in part as follows:

2. As part of the Real Estate Transaction [resulting in plaintiff's purchase of the property], Plaintiff/Landlord inherited a Tenant through an Assignment of Leases and from that date Defendant/Tenant has been a problem.

3. Upon information and belief, prior to Plaintiff taking ownership of the property, Defendant completed work on the property, including the movement of the HVAC System and other plumbing work.

4. On November14, 2007, Plaintiff had the property inspected based on a Complaint of lack of heat by the Tenant. The Tenant was notified that the HVAC System that he had installed, had been installed incorrectly and constituted a Fire Hazard and had to be corrected within 10 days of the date of the Notice letter.

5. Defendant/Tenant refused to have the proper repairs made to the HVAC System which they installed improperly. Due to the nature of the situation (Health & Safety Issue) Plaintiff had the work completed at a cost of $6,800.00.

The complaint also alleged three attempts by plaintiff, on February 24, February 29 and March 6, 2008, to have plumbing and electrical work done on the property, consisting of the installation of two additional water heaters to provide hot water to the building's residential tenants, an inspection of "the status of the water meters," and a determination "whether there [was] a crossing of the pipes between the Commercial Tenant and Residential Tenants," and that access had been refused. However, the Chancery action does not appear to have been pursued. Litigation, instead, focused on plaintiff's initial complaint for non-payment of rent, which was transferred on May 1, 2008 from the Special Civil Part to the Law Division as the result of defendant's motion. The order of transfer required defendant to pay rent into court on or before the fifth day of every month.

On May 12, 2008, defendant filed an answer to the possession action, together with a counterclaim seeking monetary damages from plaintiff as the result of plaintiff's alleged breach of contract, misrepresentation and unjust enrichment. As a factual matter, defendant alleged that plaintiff had failed to maintain the building's heating and cooling systems, failed to provide defendant with the one-half of the basement space that the lease required, misrepresented the availability of parking spaces at the rear of the building, failed to update the building's sprinkler system, failed to make payments for gas, water and electricity, failed to make necessary ceiling repairs caused by water damage, and failed to separate the heating system for the basement.

Thereafter, on July 18, 2008, plaintiff filed an amended complaint. That complaint alleged breach of lease provisions requiring payment of rent; maintenance of the premises in a clean condition, free from debris; maintenance of general public liability insurance in specified amounts; indemnification for losses caused by defendant; and provision of access; and it declared defendant's breaches to constitute events of default by defendant pursuant to the lease. In the multiple counts that followed, plaintiff first sought defendant's removal for non-payment of rent from December 2007 through June 2008 and non-payment of additional charges incurred as the result of defendant's improper installation of HVAC equipment and improper plumbing alterations, requiring the installation of a new water meter. In succeeding counts, plaintiff sought removal for breach of lease covenants consisting of interfering with plaintiff's right of entry, failure to maintain insurance, the unauthorized alteration of the heating system, the unauthorized alteration to the water plumbing system, and failure to maintain the premises and to remove debris. The complaint also sought removal for disorderly conduct consisting of defendant's conversion of plaintiff's water utility meter for defendant's own use, and relocating and removing the furnace without consent or a permit. The complaint further asserted causes of action for breach of contract arising from the previously described conduct and seeking damages, as well as contempt of court arising from defendant's alleged willful failure to comply with a court order entered in a Chancery matter filed by Li against his former landlord, QAD.

Following service of the amended complaint, further misconduct on defendant's part occurred. On November 25, 2008, he pled guilty to committing criminal mischief pursuant to N.J.S.A. 2C:17-3a(1) by destroying or disabling a security camera owned by plaintiff. On February 23, 2009, defendant pled guilty to violating the Orange Municipal Code by housing employees at the restaurant.

On April 14, 2009, plaintiff served defendant with a notice to quit pursuant to N.J.S.A. 2A:18-53(c). The notice demanded defendant's removal within three days from receipt of the notice or five days from its date, whichever was later. The causes for termination were enumerated as: (a) making improper alterations to the building's heating system; (b) making improper alterations to the building's water supply plumbing and tapping into plaintiff's water supply serving other tenants, thereby converting that water supply; (c) allowing employees to occupy the restaurant premises as a residence; (d) obstructing and refusing plaintiff's right of entry to the premises for purposes of repairs and inspection; (e) encumbering or obstructing the rear exterior and failing to maintain that area in a clean condition; and (f) causing the plaintiff's security camera to be willfully and maliciously destroyed. The notice further made reference to ten prior letters from counsel demanding that defendant cease and desist engaging in the causes for termination specified in the notice and to the ongoing litigation instituted in the Law Division by plaintiff against defendant.

A bench trial of the matter took place from June 8 to 17, 2009, during which defendant repeatedly claimed that the court lacked subject matter jurisdiction to hear the matter because plaintiff had not served defendant with notice to quit prior to the commencement of the litigation - a claim that was rejected by the trial judge on various grounds. At the conclusion of the trial, the judge rendered an oral decision in which he granted possession to plaintiff, finding the testimony on behalf of plaintiff as to defendant's lease violations to have been credible, rejecting that of defendant Li as not credible, and determining that plaintiff's allegations had been sustained.

The judge reserved decision on the issue of damages, but following briefing, on February 18, 2010, the judge found plaintiff entitled to compensatory damages in the amount of $3,805, which the judge trebled, for an award of $11,215. In large measure, the judge found that the proofs were insufficient to permit a calculation of damages on plaintiff's claims for the value of water diverted by defendant and the costs of repair to the HVAC system. Additionally, the judge denied punitive damages. However, the judge found damages to plaintiff's sprinkler system in the amount of $1800 and in the amount of $2005 for the cost incurred to reroute the water system following defendant's diversion. An amended order for possession was signed.

Defendant has appealed. Following a denial of a further stay of the order of possession, it has quit the premises.

II.

As he maintained at trial, defendant claims on appeal that the trial court lacked jurisdiction of the matter as the result of plaintiff's failure to serve a notice to quit prior to instituting litigation to obtain possession of the premises. Our review of the issue, which is solely legal in nature, is plenary. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Contrary to defendant's position, we do not construe N.J.S.A. 2A:18-53 as requiring a pre-suit notice to quit in the circumstances presented. In reaching this conclusion, we distinguish between statutes governing residential and commercial leases. Residential leases are governed by the Anti-Eviction Act, N.J.S.A. 2A:18-61.1 to -61.12. The Act provides that:

No judgment of possession shall be entered for any premises covered by section 2 of this act [N.J.S.A. 2A:18-61.1], except for the nonpayment of rent under subsection

a. or f. of section 2 unless the landlord has made written demand and given written notice for delivery of possession of the premises. The following notice shall be required:

a. For an action alleging disorderly conduct under subsection b. of section 2, or injury to the premises under subsection c. of section 2, or any grounds under subsection m., n., o. or p. of section 2, three days' notice prior to the institution of the action for possession;

b. For an action alleging continued violation of rules and regulations under subsection d. of section 2, or substantial breach of covenant under subsection e. of section 2, or habitual failure to pay rent, one month's notice prior to the institution of the action for possession;

c. For an action alleging any grounds under subsection g. of section 2, three months' notice prior to the institution of the action[.] [N.J.S.A. 2A:18-61.2 (Emphasis supplied).]

The statute governing eviction in connection with non-residential leases does not contain language requiring notice prior to instituting removal proceedings. It states:

Except for residential lessees and tenants included in section 2 of this act [N.J.S.A. 2A:18-61.1], any lessee . . . of any . . . buildings . . . may be removed from such premises by the Superior Court, Law Division, Special Civil Part in an action in the following cases.

b. Where such person shall hold over after a default in the payment of rent, pursuant to the agreement under which the premises are held.

C. Where such person . . . (2) shall willfully destroy, damage or injure the premises, or . . . (4) shall commit any breach or violation of any of the covenants or agreements in the nature thereof contained in the lease for the premises where a right of re-entry is reserved in the

lease for a violation of such covenants or agreements, and shall hold over and continue in possession of the demised premises or any part thereof, after the landlord or his agent for that purpose has caused a written notice of the termination of said tenancy to be served upon said tenant and a demand that said tenant remove from said premises within 3 days from the service of such notice. The notice shall specify the cause of the termination of the tenancy, and shall be served either personally upon the tenant or such person in possession by giving him a copy thereof, or by leaving a copy thereof at his usual place of abode with some member of his family above the age of 14 years. [N.J.S.A. 2A:18-53.]

We find nothing in the plain language of N.J.S.A. 2A:18-53 that would permit or require us to read into that statute the requirement that notice to quit precede suit. DiProspero v. Penn, 183 N.J. 477 (2005). As the Court stated there:

The Legislature's intent is the paramount goal when interpreting a statute and, generally, the best indicator of that intent is the statutory language. We ascribe to the statutory words their ordinary meaning and significance, and read them in context with related provisions so as to give sense to the legislation as a whole. It is not the function of this Court to "rewrite a plainly-written enactment of the Legislature []or presume that the Legislature intended something other than that expressed by way of the plain language." We cannot "write in an additional qualification which the Legislature pointedly omitted in drafting its own enactment," or "engage in conjecture or surmise which will circumvent the plain meaning of the act." "Our duty is to construe and apply the statute as enacted."

[Id. at 492 (citations omitted).]

See also Pennsylvania R.R. Co. v. L. Albert & Son, Inc., 26 N.J. Super. 508, 513 (App. Div.) (refusing to read into N.J.S.A. 2A:18-53 language that was not there), certif. denied, 13 N.J. 361 (1953). Additionally, defendant has cited to no case law, rendered in a commercial context, holding that pre-suit notice is required in that context.

Moreover, the concerns leading to the enactment of the Anti-Eviction Act have not been similarly expressed in connection with commercial evictions, permitting a difference in treatment of the two circumstances. As the Legislature found in enacting the Anti-Eviction Act, see N.J.S.A. 2A:18-61.1a, acute State and local shortages in housing and high demand had motivated the removal of blameless tenants in order to profit from conversion to higher income rental or ownership use. This circumstance had resulted in "unfortunate attempts to displace tenants employing pretexts, stratagems or means other than those provided pursuant to the intent of State eviction laws designated [sic] to fairly balance and protect rights of tenants and landlords." N.J.S.A. 2A:18-61.1a(b). For this reason, the Legislature declared that: "It is in the public interest of the State to maintain for citizens the broadest protections available under State eviction laws to avoid such displacement and resultant loss of affordable housing." N.J.S.A. 2A:18-61.1a(d).

In accordance with the Legislature's mandate, we have held that: "The Anti-Eviction Act, N.J.S.A. 2A:18-61.1 et seq., comprehensively regulates the grounds on which a residential tenant may be evicted and the procedures a landlord must follow before evicting a tenant. Unless the landlord demonstrates compliance with these statutory provisions, a judgment for possession may not be entered." RWB Newton Assocs. v. Gunn, 224 N.J. Super. 704, 709 (App. Div. 1988). In this context, we have required a "punctilious compliance with all statutory eviction procedures." Sacks Realty Co. v. Batch, 248 N.J. Super. 424, 426 (App. Div. 1991) (citing RWB Newton Assocs., supra, 224 N.J. Super. 704; Georgia King Assocs. v. Fraiser, 210 N.J. Super. 146 (App. Div.), certif. denied, 105 N.J. 529 (1986); and Kroll Realty, Inc. v. Fuentes, 163 N.J. Super. 23 (App. Div. 1978)).

"The Act affords 'residential tenants the right, absent good cause for eviction, to continue to live in their homes without fear of eviction . . . and thereby to protect them from involuntary displacement.'" 224 Jefferson Condo. Ass'n v. Paige, 346 N.J. Super. 379, 383 (App. Div.) (quoting Morristown Mem'l Hosp. v. Wokem Mortg. & Realty Co., 192 N.J. Super. 182, 186 (App. Div. 1983)), certif. denied, 172 N.J. 179 (2002). It "reflects a public policy barring dispossess actions except upon strict compliance with the notice and procedural requirements of the Act." Ibid. (citing Montgomery Gateway E. I v. Herrera, 261 N.J. Super. 235, 241 (App. Div. 1992); Bayside Condos., Inc. v. Mahoney, 254 N.J. Super. 323, 325 (App. Div. 1992)). Such strict compliance is required even in circumstances in which the landlord has acted in good faith and the tenant has not been prejudiced. Ibid. (citing Weise v. Dover Gen. Hosp., 257 N.J. Super. 499, 504 (App. Div. 1992). We have explained that "'the Anti-Eviction Act is remedial legislation deserving of liberal construction,' 447 Associates v. Miranda, 115 N.J. 522, 529 (!989), and that its 'overall purpose' is to 'protect [] blameless tenants from eviction' Chase Manhattan Bank v. Josephson, 135 N.J. 209, 226 (1994)[.]" McQueen v. Brown, 342 N.J. Super. 120, 133 (App. Div. 2001), aff'd, 175 N.J. 200 (2002).

In contrast, no similar solicitude has been expressed by the Legislature for commercial tenants when enacting eviction statutes applicable to them. As a consequence, we have not insisted on as strict compliance with statutory notice requirements as we found to be mandated under the Anti-Eviction Act, so long as the purpose of the notice provision was met.*fn2 In that connection, it has been held that the purpose, in N.J.S.A. 2A:18-53c, of providing notice to a commercial tenant that "specif[ies] the cause of the termination of the tenancy" is "[o]bviously . . . not that of aiding the tenant in changing his conduct, since no notice to cease is required." Ivy Hill Park Apts. v. GNB Parking Corp., 236 N.J. Super. 565, 570 (Law Div. 1989), aff'd, 237 N.J. Super. 1 (App. Div. 1989).*fn3 Rather, it is to "permit the tenant to adequately prepare a defense, since the tenant may contest an alleged breach of a covenant or may raise equitable defenses." Ibid. The judge found that "[b]ecause an action to evict the tenant is normally a summary proceeding devoid of discovery, specification of the cause of termination is a means of adequately advising the tenant of the allegations against which it must defend." Ibid. Because, in that case, a sufficiently specific recent notice to quit had been sent, the judge held that a later notice to terminate the tenancy and quit the premises that merely incorporated the prior letter by reference met statutory requirements. Id. at 567, 571.

We are satisfied that, in the present case, compliance with statutory notice provisions has been similarly demonstrated, and that the specificity required by the Court in Carteret Props. v. Variety Donuts, Inc., 49 N.J. 116, 123-25 (1967) as to a statement of the cause of the termination was met by the service of plaintiff's amended complaint, followed by its April 14, 2009 notice to quit pursuant to N.J.S.A. 2A:18-53(c).

When the initial suit was filed in the Special Civil Part on March 11, 2008, it was solely an action for possession as the result of non-payment of rent, as to which defendant had received a demand for payment dated January 23, 2008. No further notice was required by N.J.S.A. 2A:18-53b, and indeed, that provision, unlike N.J.S.A. 2A:18-53a and c, contains no requirement of notice whatsoever, stating only that a tenant may be removed from possession "[w]here such person shall hold over after a default in the payment of rent, pursuant to the agreement under which the premises are held."

Thereafter, plaintiff commenced its Chancery Division action alleging defendant's refusal to permit entry, defendant removed the Special Civil action to the Law Division, and defendant filed its counterclaim. On July 18, 2008, almost one year before trial, plaintiff filed its amended complaint alleging with specificity the contractual events of default upon which it was relying in seeking possession and damages. On April 13, 2009, one month prior to trial, it served defendant with a notice to quit pursuant to N.J.S.A. 2A:18-53(c) that, in essence mirrored the allegations of the amended complaint while adding claims based upon defendant's destruction of the security camera and use of the commercial premises for residential purposes that had not been known at the time that the amended complaint was filed.

Thus, we find that adequate notice of plaintiff's claims was given to permit defendant to mount a defense, particularly since the amended complaint stated with specificity the events of default upon which plaintiff was then placing reliance and since action was not proceeding, like Ivy Hill, in a summary fashion, but as a plenary proceeding where full discovery was available. We further conclude that plaintiff's April 13, 2009 notice complied with the requirements of N.J.S.A. 2A:18-53c, and that pre-suit notice was not statutorily required.

As the Court has stated when construing the notice requirements of N.J.S.A. 2A:18-53c:

The notice is required to "specify the cause of the termination of the tenancy," and proof that such notice has been served is prerequisite to judgment. The cause of the termination is jurisdictional, and if at trial evidence is adduced from which a finding could reasonably be made that a proper notice was served and that the specified statutory cause existed, a judgment for possession is conclusive. [Carteret Props., supra, 49 N.J. at 123.]

We find significant the Court's language stating that service of adequate notice is a prerequisite to "judgment," not "suit" and, viewing the present circumstances in light of Carteret's precepts and the evidence adduced at trial, we find that a judgment of possession was properly entered in this matter. The notice provided to defendant was sufficient, and the evidence of defendant's substantial events of default was ample.

III.

In addition to the foregoing argument, defendant has raised a myriad of additional points, largely supported by one page or less of argument, as follows:

II. UNAUTHORIZED ALTERATION TO HEATING SYSTEMS ISSUE HAD ALREADY BEEN SETTLED BETWEEN THE PLAINTIFF'S PREDECESSOR AND THE DEFENDANT, THEREFORE, THE COURT BELOW SHOULD HAVE DISMISSED THIS CLAIM ON THE GROUND OF RES JUDICATA.

III. CONVERTING LANDLORD'S WATER UTILITY FOR TENANT'S OWN USE DID NOT CONSTITUTE SUFFICIENT GROUND FOR JUDGMENT OF POSSESSION.

IV. TRASH REMOVAL BY THE TENANT DID NOT CONSTITUTE SUFFICIENT GROUND FOR JUDGMENT OF POSSESSION SINCE THE DEFENDANT NEVER VIOLATED THE LEASE AGREEMENT.

V. DEFENDANT TENANT'S DENYING LANDLORD ACCESS TO THE TENANT'S PREMISES DID NOT CONSTITUTE SUFFICIENT GROUND FOR JUDGMENT OF POSSESSION SINCE THE LANDLORD HAD ACCESS TO THE PREMISES.

VI. THE COURT BELOW DID NOT ACQUIRE SUBJECT MATTER JURISDICTION OVER THE ISSUES OF SECURITY CAMERA AND EMPLOYEES LIVING IN THE KITCHEN FOR A LACK OF PROPER STATUTORY NOTICE TO QUIT.

VII. THE COURT BELOW MISAPPLIED BEST EVIDENCE RULE AND IMPROPERLY ACCEPTED A COPY OF LEASE AGREEMENT PRESENTED BY THE LANDLORD.

VIII. THE COURT BELOW ERRONEOUSLY DISMISSED TENANT'S COUNTERCLAIM EVEN THOUGH TENANT DEMONSTRATED REASONABLE EXPENSES INCURRED BY HIM FOR VARIOUS REPAIRS TO BE REIMBURSED BY THE LANDLORD ON HIS COUNTERCLAIMS.

IX. JUDGMENT MUST BE VACATED SINCE LANDLORD FAILED TO COMPLY WITH 5-DAY RULE AND ENGAGED IN IMPERMISSIBLE EX-PARTE COMMUNICATION WITH THE JUDGE.

X. THE COURT BELOW IMPROPERLY ACCEPTED MANY HEARSAY EVIDENCE DESPITE THE TENANT'S TIMELY OBJECTION, THEREFORE, JUDGMENT OF POSSESSION MUST BE VACATED.

XI. THE COURT BELOW IMPROPERLY GAVE THE LANDLORD ANOTHER CHANCE TO PROVE DAMAGES WHERE THE LANDLORD TOTALLY FAILED TO PROVE DAMAGES DURING THE TRIAL.

After carefully considering these arguments, we find them to be of insufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E).

Many of defendant's arguments challenge the trial judge's determination of contested facts. However, our review of the record supports the conclusion that his factual findings could reasonably have been reached on substantial credible evidence in that record, and we decline to disturb them. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965).

A number of defendant's further arguments, and in particular, defendant's argument that the trial judge improperly dismissed defendant's counterclaim without an award of damages and defendant's argument with respect to the admission of hearsay, lack sufficient legal and factual exposition to permit our analysis of their merits. We additionally reject defendant's arguments pertaining to lack of notice of the submission of the judgment of possession for execution and lack of notice that the judge would render an oral decision on July 7, 2009, because neither claim is factually supported by an affidavit or other competent proof.

Further, we reject the argument that the relatively small damage award to plaintiff provides evidence that defendant's breaches of its lease were concomitantly trivial. Rather, we view the record otherwise, determining that plaintiff's failure to prove damages in no way demonstrated that defendant's lease violations were insubstantial. Instead, it merely reflected the difficulties experienced by plaintiff in marshalling the necessary evidence.

As a final matter, we reject defendant's claim that the court lacked jurisdiction over claims arising from the willful destruction of plaintiff's security camera and the use of the restaurant premises as a residential facility because those claims arose after the action was commenced and thus proper notice was not provided. However, those incidents were included in plaintiff's April 2009 notice to quit. The judge acted properly in conforming the pleadings to the newly-discovered evidence. See R. 4:9-2.

Affirmed.


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