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Partroy Associates v. Jane Diguglielmo

September 27, 2011

PARTROY ASSOCIATES, PLAINTIFF-APPELLANT,
v.
JANE DIGUGLIELMO, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. LT-2786-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 12, 2011

Before Judges Ashrafi and Fasciale.

Plaintiff-landlord Partroy Associates (the landlord) appeals from a December 9, 2010 order dismissing its complaint seeking possession of apartment T-1 in a 272-unit garden apartment complex. The appeal requires us to construe N.J.S.A. 2A:18-61.1m, occupancy as condition of employment, concerning the landlord's right to evict a superintendent and his family.

The landlord contends that the judge misinterpreted the statute to require that the tenancy and the employment occur simultaneously. We disagree and affirm.

Defendant-wife and her now-estranged husband rented apartment T-1 in 1999. They were tenants, not employees, of the landlord. In 2004, they signed a one-year renewal lease to commence on May 1, 2004. On April 15, 2004, after having been a tenant for several years, and while the 2004 renewed lease remained effective, the husband signed an employment contract to begin working as a superintendent at the apartment complex. The contract provided that the husband and his family would vacate the apartment within five days if his employment was terminated. The landlord, however, never terminated or amended the renewed lease to condition the wife's occupancy of T-1 expressly on the husband's employment, and the wife was not party to the employment contract. Thus, occupancy of T-1 by the couple was pursuant to the unconditional renewal lease, and occupancy of T-1 by the husband was also pursuant to a separate employment contract.

The couple separated four years later. On September 17, 2009, the husband moved out, but the wife and her children remained in the apartment. On August 23, 2010, the landlord terminated its employment relationship with the husband, and in September 2010, the landlord hired a new superintendent and gave notice to the wife to quit her occupancy of T-1. The wife refused to leave, contending that she had been a tenant since 1999, and she offered to pay the landlord rent for the apartment. The landlord refused the offered rent and then sought possession of the premises pursuant to N.J.S.A. 2A:18-61.1m, arguing that termination of the husband's job established good cause to evict the wife.

After conducting a bench trial, Judge Maryann Nergaard rendered an oral opinion on November 30, 2010. She concluded that the wife's pre-existing occupancy of T-1 was not expressly conditioned upon the husband's employment. On December 9, 2010, the judge entered judgment in favor of the wife and dismissed the complaint. The judge then filed a detailed well-written opinion on January 31, 2011, pursuant to Rule 2:5-1(b).

On appeal, the landlord argues that (1) occupancy of T-1 was contingent on the husband's continued employment; (2) the judge misinterpreted N.J.S.A. 2A:18-61.1m to require the tenancy and the employment to occur simultaneously; (3) the judge erred by concluding that the failure to terminate the renewed lease turned the wife's occupancy into a month-to-month tenancy; and (4) the equities weigh in favor of eviction. We focus primarily on whether the judge misinterpreted N.J.S.A. 2A:18-61.1m, the second argument advanced by the landlord.

A 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 the landlord conditioned the tenancy on the tenant's employment as a superintendent. Specifically, N.J.S.A. 2A:18-61.1m 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, . .. except upon establishment of one of the following grounds as good cause:. . . .

m. The landlord or owner conditioned the tenancy upon and in consideration for the tenant's employment by the landlord or owner as superintendent, janitor or in some other capacity and such employment is being terminated.

Pursuant to N.J.S.A. 2A:18-61.1m, the landlord must prove by a preponderance of the evidence that it "conditioned the tenancy upon and in consideration for the tenant's employment by the landlord . . . as superintendent . . . ." Judge Nergaard interpreted this language to mean that Section 61.1m is inapplicable if the employment and tenancy did not occur ...


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