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Veena Sinha v. David P. Fruchtman and Adina Fruchtman


August 18, 2011


On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Hudson County, Docket No. LT-12945-10.

Per curiam.


Argued August 10, 2011

Before Judges J. N. Harris and Fasciale.

Defendants David P. Fruchtman and Adina Fruchtman (collectively Fruchtman) appeal a judgment of possession entered by the Special Civil Part in a residential summary dispossess action. Plaintiff Veena Sinha sought the judgment of possession on the dual grounds of nonpayment of rent and her desire to personally occupy the dwelling unit.*fn1

Our recitation of the facts of this matter is hampered by the unusual circumstances that (1) no testimony was taken during the trial, (2) none of the documentary evidence considered by the trial judge was marked or identified, and (3) the entry of the judgment of possession was based solely upon the hearsay representations of plaintiff's attorney (in violation of Rule 1:6-6) and the unsworn statements of Mr. Fruchtman, acting pro se. Because of our lack of confidence in the decisional accuracy of the judgment of possession, which is engendered by our inability to effectively review the proceedings, we are constrained to reverse and remand the matter for a new trial.


The following is what we are able to cobble together from the fragmentary record. In 2004, Rohini Sinha and Vilma Sinha as landlords,*fn2 and Mr. Fruchtman, as tenant, entered into a one-year residential lease for the subject property located in Hoboken. The dwelling unit, variously described either as an apartment or a condominium unit, was devised to plaintiff after her mother died in early 2010, but the manner and means of the transfer are not illuminated by the record.*fn3 Because plaintiff did not testify at trial, and no documents were admitted into evidence, we do not know (1) the details of the transfer, (2) whether plaintiff owns other condominium or cooperative units, or (3) the amount of rent that was alleged to be due, unpaid, and owing by Fruchtman to plaintiff.

When the case was called for trial, the court engaged in a series of conversations with plaintiff's attorney and Mr. Fruchtman, acting pro se. The court administered an oath to plaintiff, who was present, but not to Mr. Fruchtman. However, plaintiff never uttered a word (besides stating her name) on the record during the entire proceeding.

During this informal process, which resembled a courtroom conference rather than a trial, documents were handed to the judge for her review, but the nature and details of those documents were not placed on the record. We note that Fruchtman's main argument in this appeal -- whether plaintiff properly complied with N.J.S.A. 46:8-28 (requiring a landlord of a residential unit to register the property with the municipality) -- may have been contained in a letter received by the judge on the day of trial, but was not mentioned during the trial by Fruchtman or the judge. Fruchtman's appendix contains the letter to the court, dated the same day as the trial, but we are unable to discern whether the trial judge considered these claims on the date of trial.

Fruchtman argues that plaintiff neglected to file an amended registration statement upon her taking title to the dwelling unit, as required by N.J.S.A. 46:8-28.2. Accordingly, he asserts that the trial court erred in granting the judgment of possession and in refusing to stay its operation for up to ninety days pursuant to N.J.S.A. 46:8-33.

After approximately thirty minutes of colloquy among the judge, counsel for plaintiff, and Mr. Fruchtman, the judge dismissed plaintiff's claim for nonpayment of rent on the grounds that "I will take notice of the fact that [Mr. Fruchtman has] the full amount of the rent. The issue is no longer a non payment action, I think I made that clear. It's not a non payment action anymore, this is that the landlord wants to live on the premises." Then, after briefly determining that plaintiff had complied with all required notices, the court ruled that plaintiff had satisfied the grounds for eviction pursuant to N.J.S.A. 2A:18-61.1(l)(1),*fn4 and entered a judgment of possession forthwith.

Shortly thereafter, Fruchtman moved for a stay, arguing hardship and that plaintiff had failed to file the landlord registration statement. The application for a stay was denied, and upon Fruchtman's application for emergent relief from this court, we also denied a stay. Fruchtman was forced to vacate the premises, and plaintiff apparently moved in.

On appeal, Fruchtman argues that the trial court erred (1) in its failure to give effect to N.J.S.A. 46:8-28 and -28.2; (2) by not taking testimony of plaintiff in order to satisfy the statutory requirements for a judgment of possession; and (3) by failing to recognize that Fruchtman was not personally served with a Notice to Quit and Demand for Possession. Because we agree that there was no competent evidence to support the trial court's findings due to the unconventional manner of conducting the trial, we reverse. In so doing, and with the expectation that there will be a new trial, we will briefly discuss Fruchtman's other contentions.



residential tenant in New Jersey may not be evicted unless the landlord can establish one of the grounds for summary dispossession set forth under the Anti-Eviction Act (the Act), N.J.S.A. 2A:18-61.1 to -61.12. One of the enumerated grounds furnishing good cause to evict is where an owner of three or less condominium or cooperative units decides to occupy the premises personally, or to sell them to a buyer who intends such personal occupancy. Specifically, N.J.S.A. 2A:18-61.1(l)(2) provides:

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, other than (1) owner-occupied premises with not more than two rental units or a hotel, motel or other guest house or part thereof rented to a transient guest or seasonal tenant; (2) a dwelling unit which is held in trust on behalf of a member of the immediate family of the person or persons establishing the trust, provided that the member of the immediate family on whose behalf the trust is established permanently occupies the unit; and (3) a dwelling unit which is permanently occupied by a member of the immediate family of the owner of that unit, provided, however, that exception (2) or (3) shall apply only in cases in which the member of the immediate family has a developmental disability, except upon establishment of one of the following grounds as good cause:

l. . . . (2) The owner of three or less condominium or cooperative units seeks to evict a tenant whose initial tenancy began by rental from an owner of three or less units after the master deed or agreement establishing the cooperative was recorded, because the owner seeks to personally occupy the unit, or has contracted to sell the unit to a buyer who seeks to personally occupy it and the contract for sale calls for the unit to be vacant at the time of closing[.] [(Emphasis added).]

See 224 Jefferson St. Condo. Ass'n v. Paige, 346 N.J. Super. 379, 390 (App. Div) (applying N.J.S.A. 2A:18-61.1(l)(2)), certif. denied, 172 N.J. 179 (2002).

Our review of the factual findings made by a trial court in a non-jury trial is quite limited. Estate of Ostlund v. Ostlund, 391 N.J. Super. 390, 400 (App. Div. 2007). "'[W]e do not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence.'" Mountain Hill, L.L.C. v. Twp. of Middletown, 399 N.J. Super. 486, 498 (App. Div. 2008) (quoting State v. Barone, 147 N.J. 599, 615 (1997)). In general, the court's factual findings "should not be disturbed 'unless they are so wholly insupportable as to result in a denial of justice[.]'" Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974) (quoting Greenfield v. Dusseault, 60 N.J. Super. 436, 444 (App. Div.), aff'd o.b. 33 N.J. 78 (1960)).

"Although great latitude is given to a trial court in the conduct of a trial, there are bounds within which the judge must stay." Persley v. N.J. Transit Bus Operations, 357 N.J. Super. 1, 9 (App. Div) (citing Mercer v. Weyerhaeuser Co., 324 N.J. Super. 290, 298 (App. Div. 1999)), certif. denied, 177 N.J. 490 (2003). In our review of the record, we must determine whether "the actions of the trial judge deprived the defendant of a fair trial." Mercer, supra, 324 N.J. Super. at 299. "Trial judges clearly have a duty to assure that both parties obtain a fair trial." Hitchman v. Nagy, 382 N.J. Super. 433, 453 (App. Div.), certif. denied, 186 N.J. 600 (2006). Here, the trial court did not conduct a trial-like proceeding. Few of the hallmarks of a judicial trial were observed. No witnesses were called to testify, no cross-examination was conducted, and no exhibits were marked or admitted into evidence. Additionally, the court's findings were based upon unsworn statements made by plaintiff's attorney. There were no factual findings concerning the requisite elements for the subsection (l)(2) cause of action, including whether plaintiff qualified as owning less than three condominium units and whether, indeed, she actually owned the property in question.

"The Act reflects a public policy barring dispossess actions except upon strict compliance with the notice and procedural requirements of the Act." 224 Jefferson St. Condo. Ass'n, supra, 346 N.J. Super. at 383. "We have defined 'strict compliance' as 'punctilious' compliance with all of the Act's provisions, including the notice provisions." Ibid. (quoting Weise v. Dover. Gen. Hosp., 257 N.J. Super. 499, 504 (App. Div. 1992)). This is not slavish adherence to hyper-technicalities; rather, it bespeaks allegiance to the legislative goal of ensuring an expeditious eviction process for landlords and the fair protection of tenants. The landlord bears the burden of proving the elements of the cause of action, which was not accomplished in this case due to the incomplete proceedings conducted by the trial court. Even though we are advised that plaintiff, in fact, moved into the premises following the eviction of Fruchtman, we do not know if plaintiff can satisfy all of the requisite elements for a subsection (l)(2) eviction. We are not prepared to say that a remand will be an exercise in futility.

Furthermore, even though Fruchtman vacated the premises (involuntarily), this case is not moot. Cf. Daoud v. Mohammad, 402 N.J. Super. 57, 61 (App. Div. 2008) ("Because the court's jurisdiction is limited to determining the issue of the landlord's right to possession of the premises, and, as previously noted, the tenant vacated the premises and the premises have been re-rented, the issue can no longer be determined."); Sudersan v. Royal, 386 N.J. Super. 246, 251 (App. Div. 2005) ("Ordinarily, where a tenant no longer resides in the property, an appeal challenging the propriety of an eviction is moot."). Because plaintiff, and not a third party, is in possession of the premises due to the unique contours of an (l)(2) eviction, if plaintiff cannot prove her case on remand, the rights of third parties will not be affected, and Fruchtman may be entitled to possession of the dwelling unit.

We last address Fruchtman's claim that the mail receipt of the requisite Notice to Quit and Demand for Possession, N.J.S.A. 2A:18-61.2(f), was inadequate and deprived the court of jurisdiction. More than sixty days prior to the filing of the complaint in this matter, plaintiff's attorney mailed (by certified mail and regular mail) a combined Notice to Quit and Demand for Possession that advised Fruchtman of plaintiff's intention to personally occupy the dwelling unit. Fruchtman concedes that the combined Notice to Quit and Demand for Possession was received, but argues that it was required to have been personally served pursuant to N.J.S.A. 2A:18-53. Because plaintiff was proceeding pursuant to N.J.S.A. 2A:18-61.1(l)(1), we find that Fruchtman was entitled to notice pursuant to N.J.S.A. 2A:18-61.2, which requires personal service, with an alternative of certified mail and "if the certified letter is not claimed, notice shall be sent by regular mail."

From our review of the Notice to Quit and Demand for Possession, we conclude that its contents satisfied the requisite specificity required by the Act, and Fruchtman's actual receipt fulfilled due process. "The Legislature's purpose in requiring landlords to specify in detail the cause for termination is, in part, to allow tenants an adequate opportunity to prepare a defense before trial. The Legislature has also recognized a tenant's general right to know as much as possible about any eviction proceeding brought against him or her." Aspep Corp. v. Giuca, 269 N.J. Super. 98, 103 (Law Div. 1993). We are convinced that Fruchtman's actual receipt of the Notice to Quit and Demand for Possession fulfilled these legislative purposes.

Reversed and remanded for a new trial. We do not retain jurisdiction.

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