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Partroy Associates v. Jane Diguglielmo


September 27, 2011


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

Per curiam.


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 simultaneously. Under the facts of this case, we agree with Judge Nergaard's interpretation.

When dealing with questions of statutory construction, the Court first considers the plain meaning of the provision at issue. State v. Hoffman, 149 N.J. 564, 578 (1997); State v. Szemple, 135 N.J. 406, 421 (1994); Merin v. Maglaki, 126 N.J. 430, 434 (1992). "Such language should be given its ordinary meaning, absent a legislative intent to the contrary." Merin, supra, 126 N.J. at 434-35.*fn1 According to the plain, unambiguous language of the statute, N.J.S.A. 2A:18-61.1m applies where the tenancy was conditioned on the tenant's employment.

In Cruz v. Reatique, 212 N.J. Super. 195 (Law. Div. 1986), the court considered whether N.J.S.A. 2A:18-61.1m applies when a tenant later becomes an employee of the landlord. In Cruz, the tenant had resided in the apartment complex for many years and then became a part-time janitor for his landlord. Id. at 197. After his job was terminated, his landlord served a notice on him seeking possession of the premises. Ibid. The tenant refused to leave and offered to pay rent to his landlord. Ibid. The court held that N.J.S.A. 2A:18-61.1m did not apply to a situation in which the tenancy pre-existed the employment as a part-time janitor. Id. at 199.

Likewise, in Village Associates v. Perez, 253 N.J. Super. 507, 510 (Law. Div. 1991), the court followed the rationale expressed in Cruz. In Village Associates, Perez had been employed as a maintenance worker at the apartment complex and later became a tenant. Id. at 508. The court held that N.J.S.A. 2A:18-61.1m was inapplicable because "the living space was provided five years after the employment commenced[,] as in the situation in Cruz where the employment commenced several years after the tenancy was created." Id. at 510. Thus, in neither case did the employment and tenancy commence simultaneously. The Village Associates court observed that:

The test of the applicability of paragraph

(m) must be that the living space to the tenant was part of the consideration for the employment contract between the landlord and the tenant and that the tenancy was created only because of the employment contract. [Ibid.]

In Kearny Court Associates v. Spence, 262 N.J. Super. 241, 246 (App. Div. 1993), we cited the Cruz and Village Associates cases as persuasive authority. In Kearny Court Associates, we interpreted N.J.S.A. 2A:18-61.1m in the context of a landlord's suit in lieu of prerogative writ action against a rent control board and two tenants. Id. at 242. Both of the tenants became part-time superintendents of the landlord after having maintained tenancies. Id. at 242-43. We held that N.J.S.A. 2A:18-61.1m was unavailable as a basis to dispossess the tenants. Id. at 247.

More recently, in The Meadows Foundation, Inc. v. Williamson, 368 N.J. Super. 416, 423 (App. Div. 2004), we commented further on the applicability of N.J.S.A. 2A:18-61.1m and the principles articulated in Cruz, Village Associates, and Kearny Court Associates. In The Meadows Foundation, we affirmed a final judgment of possession in favor of the landlord where the tenancy was "created only because the provision of living space was part of the consideration for caretaking and maintenance services necessitating on-grounds residence." Ibid. As such, we noted that the tenancy did not "precede[] the 'employment' relationship." Ibid. Section 61.1m, therefore, applied to dispossess the tenant.

Thus, for Section 61.1m to apply, occupancy of the unit must be conditioned on employment. If a tenancy existed before the landlord and the tenant entered into an employment contract, as it did here, then the landlord and all tenants were required to modify or terminate the original tenancy to reflect that the occupancy of the unit is now conditioned on employment. Here, the landlord and the wife did not modify the existing lease to condition her occupancy on the husband's job as a superintendent.

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, 484 (1974) (quoting Greenfield v. Dusseault, 60 N.J. Super. 436, 444 (App. Div.), aff'd o.b. 33 N.J. 78 (1960)).

Here, we see no basis to disturb Judge Nergaard's findings of fact. The wife and the husband were both tenants for several years before the husband became employed as a superintendent. The wife's tenancy was never conditioned on the husband's employment. She originally became a tenant in 1999, and her lease was renewed annually. None of the leases she signed, including the lease she renewed in 2004, were either terminated or amended to reflect that her tenancy was conditioned on the husband's employment relationship with the landlord. Therefore, there exists no good cause to dispossess her, under N.J.S.A. 2A:18-61.1m.

After a thorough review of the record and consideration of the controlling legal principles, we conclude that the landlord's remaining arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E).


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