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LLC v. Mazaj Restaurant, LLC

Superior Court of New Jersey, Appellate Division

June 21, 2013

1255-1257 MADISON AVENUE, LLC, DAMASCUS GATE II CORPORATION and ZOUHIR ZIDAN, Plaintiffs-Appellants,
v.
MAZAJ RESTAURANT, LLC and BARAKAT KIAME, Defendants-Respondents, and RAYMOND MOURAD, Defendant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 4, 2013

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. LT-5070-12.

Joseph A. Ferriero argued the cause for appellants.

Brett A. Nadler argued the cause for respondents (Ballon Stoll Bader & Nadler, PC, attorneys; Mr. Nadler, of counsel and on the briefs).

Before Judges Messano and Lihotz.

PER CURIAM

This is another action arising from a dispute between these parties. Here, plaintiffs 1255-1257 Madison Avenue, LLC, Damascus Gate II Corporation, and Zouhir Zidan (referred to jointly as landlord) filed a summary dispossession action against defendants Mazaj Restaurant, LLC and Barakat Kiame, its majority shareholder (referred to jointly as tenant), based upon alleged nonpayment of rent and lease violations. Several prior actions had been initiated between these same parties regarding the same lease, and presenting similar claims and demands regarding use and possession of the property. Specifically, tenant had filed two Law Division actions, the first was settled and dismissed and the second sought declaratory judgment, requiring landlord to remediate alleged defects affecting tenant's use of the premises along with claims asserting breach of the lease contract. Also, landlord filed a summary dispossession action alleging tenant's non-payment of rent.

The trial court dismissed the tenant's action and entered a judgment for possession. The judgment for possession was stayed pending appellate review.

We reviewed the issues raised in that matter in an unpublished opinion, Mazaj Restaurant, LLC v. 1255-1257 Madison Ave., LLC, No. A-4944-11 (App. Div. June 4, 2013), We reinstated the tenant's Law Division complaint and reversed the trial judge's entry of a judgment for possession in favor of the landlord because the parties had never actually litigated, or even been granted the opportunity to litigate, their respective claims the other breached the lease agreement. Id . at 18. Further, we remanded, requiring administrative consolidation of both actions, and ordered the Law Division to conduct a hearing on the merits of the parties' claims. Ibid.

On June 11, 2012, landlord filed a second summary dispossession action against tenant for nonpayment of rent and claiming various violations of the lease. The same trial judge considered the parties' arguments on July 23, 2012, and determined landlord's complaint "simply reiterate[ed] matters that were known or should have been known at the time . . . the [prior] complaint was filed, which is presently on appeal." The judge concluded, "I've already entered a judgment for possession. . . . The judgment for possession has already been entered and it's on appeal." The trial judge dismissed landlord's action. This appeal ensued.

"Unquestionably, as a general rule, once an appeal is filed, the trial court loses jurisdiction to make substantive rulings in the matter." McNair v. McNair, 332 N.J.Super. 195, 199 (App. Div. 2000) (citing Rolnick v. Rolnick, 262 N.J.Super. 343, 365-66 (App. Div. 1993)). Rule 2:9-1(a) provides: "Except as otherwise provided the supervision and control of the proceedings on appeal shall be in the appellate court from the time the appeal is taken or the notice of petition for certification filed" "The ordinary effect of the filing of a notice of appeal is to deprive the trial court of jurisdiction to act further in the matter unless directed to do so by an appellate court or jurisdiction is otherwise reserved by statute or court rule" Manalapan Realty L.P. v Twp. Comm. of Manalapan, 140 N.J. 366, 376 (1995) (citations omitted); Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 2:9-1 (2013).

We view landlord's subsequent initiation of a second summary dispossession action as an attempt to subvert our jurisdiction over the issues in controversy which were then pending on appeal Consequently the trial judge's dismissal of that complaint was proper We therefore affirm

However in light of our remand in A-4944-11, we accord both sides the opportunity to pursue all their respective claims before the Law Division.


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