NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 20, 2013
On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Passaic County, Docket No. LT-1672-12.
David Brantley, appellant pro se, and attorney for Sherry Brantley.
Ehrlich, Petriello, Gudin & Plaza, attorneys for respondent (Erin R. Ehrlich, on the brief).
Before Judges Simonelli and Accurso.
Defendants in this long-running landlord/tenant dispute appeal from the entry of a judgment of possession and the denial of their motion to dismiss the complaint. Defendants contend the judge erred in allowing plaintiff to amend its complaint on the trial date to reduce the amount of rent plaintiff claimed was due and owing. Because we agree that the trial judge did not abuse his discretion under the circumstances, we affirm largely for the reasons expressed by Judge Mongiardo in his written opinions of April 2 and May 10, 2012.
Defendants are long-term tenants in a residential high-rise apartment building owned by plaintiff. The parties have litigated several disputes over rent and habitability issues on different occasions over the last six years. The primary issue has been condensation from the HVAC unit above their apartment, which has periodically stained the ceiling and walls in their unit and occasionally resulted in leaks and more serious damage to the ceilings and interior. Following a trial, Judge Rothstadt in 2008 ordered a ten percent abatement in the rent until the leaks were repaired, thereby reducing the rent to $1948.50 per month. Plaintiff attempted to raise the rent to $2265 beginning in January 2011,  but a new leak appearing in November 2010 resulted in a new round of litigation. Judge Suarez presided over the trial of that matter in December 2011. On the record at the conclusion of the last day of hearings, plaintiff's counsel advised the court that plaintiff had recently served a new notice of rent increase on defendants effective January 1, 2012. Judge Suarez acknowledged the information but advised the parties that issue was not before her and would not be addressed in her opinion. The judge established a post-trial briefing schedule and ordered defendants to post January 2012 rent of $1948.50.
In her subsequent opinion, Judge Suarez determined that the new leak was caused by the same HVAC problem as before. Finding that plaintiff had not permanently repaired the prior leak, which had resulted in Judge Rothstadt having abated ten percent of the rent, and that Judge Mongiardo had already determined that plaintiff had failed to effect a valid rent increase for 2011, Judge Suarez determined the rent to be $1948.50. The judge entered an order memorializing her ruling on February 6, 2012.
Approximately three weeks later, plaintiff filed its complaint in this matter alleging that defendants had failed to pay rent of $2333 due February 1, 2012. When the parties appeared before Judge Mongiardo for trial on Monday March 19, 2012, defendants advised that they had filed a motion to dismiss and for sanctions for filing a frivolous complaint on the previous Friday afternoon. Defendants represented that they had served the motion by fax and dropped a copy in chambers after close of business. As plaintiff's counsel had not seen the motion, the court directed defendants to hand a copy to counsel for his review.
As the court began to discuss a briefing schedule, plaintiff's counsel advised that the parties had come to an agreement in mediation on the amount of rent due. The court cautioned plaintiff's counsel against revealing matters discussed in mediation. Plaintiff's counsel advised that he was not referring to a settlement but only advising the court that while plaintiff had demanded rent of $2333 in the complaint, plaintiff would concede that the amount should be only $1948.50, the amount defendants contended was owed. He asserted that there was thus no dispute and no case to try.
As defendants began to object and assert that there was a dispute, plaintiff's counsel broke in. "It's a nonpayment of rent case. Let [defendants] tell us what the amount of the rent is, let them pay it, and we'll leave. ...