August 27, 2013
JEWEL LANKFORD, Plaintiff-Respondent,
HOSSEIN AMERI, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 18, 2013
On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Bergen County, Docket No. SC-1590-11.
Ameri & Associates, LLC, attorneys for appellant (Nima Ameri, on the brief).
Respondent has not filed a brief.
Before Judges Parrillo and Messano.
On May 5, 2011, following a non-jury trial the Special Civil Part judge entered an order for judgment in favor of plaintiff Jewel Lankford against defendant Hossein Ameri in the amount of $293.81. Defendant subsequently moved to vacate the judgment and for other relief. On July 8, 2011, the judge entered an order denying defendant's motion, and defendant now appeals.
Having reviewed the record in light of applicable legal standards, we reverse and remand the matter to the trial court for entry of judgment in defendant's favor.
Plaintiff filed a pro se complaint in the Special Civil Part alleging that she leased certain premises from defendant; that Public Service Electric and Gas (PSEG) refused to connect her service because a balance was due from a prior account at the premises; and PSEG told her that, because the prior service was listed as "no name, " it was the landlord's (defendant's) responsibility to pay the outstanding bill. Plaintiff further alleged that defendant refused to pay, causing plaintiff to pay $293.81 to connect the service.
On the trial date, plaintiff and defendant appeared. Defendant requested an adjournment, claiming he had just received the summons "a few days ago" and wanted to consult an attorney. The judge denied defendant's request. During the course of the proceedings, plaintiff identified the lease she entered into with defendant, which, according to its terms, stated, "Tenant is responsible for all utilities . . . ." Defendant acknowledged that the prior tenant may have failed to pay her outstanding bill, but, he explained, he was "not a collection agen[t] for [PSEG]." He testified that he provided the name of the former tenant to the utility.
The judge concluded, however, that despite the lease provisions, plaintiff should not be responsible for the prior bill, and it "was the landlord's responsibility to provide the apartment with electricity." He further determined it was defendant's "responsibility to go after that tenant, to do whatever the landlord could so that the new tenant would come in and be free and clear." The judge entered judgment in favor of plaintiff.
Days later, defendant moved to vacate the judgment. He provided a memorandum of law, specifically citing certain regulations which we discuss below. Because the original judge was unavailable, a second judge rescheduled the motion.
The motion was heard on July 8, 2011. The trial judge declared defendant's motion was "improper." He advised defendant to file an appeal, stating, "Your motion [for reconsideration] is denied . . . ." The judge entered an order of the same date, indicating the motion was denied for "reasons stated on the record . . . ." Defendant filed his notice of appeal on August 3.
Before us, defendant asserts several grounds of error, including the denial of his request for adjournment; plaintiff's failure to name the "real party in interest, " i.e., PSEG; and plaintiff's proofs contained "inadmissible hearsay." We need not consider any of those contentions because we conclude the trial judge mistakenly exercised his discretion in denying defendant's motion to vacate judgment.
Although the judge referenced defendant's motion as one seeking reconsideration, he also noted that the judgment followed trial. We discern that the judge recognized the motion was more appropriately one seeking relief from judgment under Rule 4:50-1.
In pertinent part, that Rule provides relief from final judgments or orders for several reasons, including "newly discovered evidence which would probably alter the judgment or order[, ] . . . or . . . any other reason justifying relief from the operation of the judgment or order." R. 4:50-1(b) and (f). A motion seeking relief pursuant to subsection (b) must be brought "not more than one year after the . . . order . . . was entered . . . ." R. 4:50-2. A request for relief under subsection (f) need only "be made within a reasonable time." Ibid. Defendant's motion was clearly timely.
As the Court has noted, "'No categorization can be made of the situations which would warrant redress under subsection (f) . . . . [T]he very essence of (f) is its capacity for relief in exceptional situations. And in such exceptional cases its boundaries are as expansive as the need to achieve equity and justice.'" DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 269-70 (2009) (quoting Court Inv. Co. v. Perillo, 48 N.J. 334, 341 (1966)) (citation and emphasis omitted); see also In re Guardianship of J.N.H., 172 N.J. 440, 476 (2002) ("The issue is not the rightness or wrongness of the original determination at the time it was made but what has since transpired or been learned to render its enforcement inequitable.") (emphasis added). While this subsection's broad equitable reach is reserved for "exceptional cases, " it has been repeatedly utilized, along with general notions of fairness, to "achieve equity and justice."
Perillo , supra, 48 N.J. 334, 341 (1966); T & S Painting and Maint., Inc. v. Baker Residential, 333 N.J.Super. 189, 193 (App. Div. 2000).
In this case, defendant's post-judgment motion brought to the judge's attention specific regulatory provisions that were not presented or addressed at trial. We acknowledge that in the pure sense, these citations were not "newly discovered"; in other words, defendant surely could have presented them to the judge at trial. See DEG, supra, 198 N.J. at 264 (noting that under subsection (b), the movant must demonstrate the new evidence "was unobtainable by the exercise of due diligence for use at the trial") (citation and quotation marks omitted).
However, under the particular circumstances presented, it is clear that defendant, who requested a brief adjournment to secure counsel, was not in a position to fully assert a defense, but for the express provisions of the lease, which explicitly placed responsibility for utilities upon plaintiff, not defendant.
Defendant's motion cited certain regulatory provisions relevant to the dispute. N.J.A.C. 14:3-7.1(a), for example, provides, "The customer(s) of record . . . shall be responsible for payment for all utility service rendered." "'Customer of record' means the person that applies for utility service and is identified in the account records of a public utility as the person responsible for payment of the public utility bill." N.J.A.C. 14:3-1.1. More importantly, the regulations explicitly provide that "[t]he continuation of service to a tenant shall not be conditioned upon payment by the tenant of any outstanding bills due upon the account of any other person." N.J.A.C. 14:3-3A.6(b). Nothing in the regulations predicated service to plaintiff only upon payment of the outstanding balance of a prior customer See NJAC 14:3-32.
As a result the judge's initial decision -- defendant was responsible despite the provisions of the lease to pay for plaintiff's utilities to be initiated -- was erroneous.
"A motion under Rule 4:50-1 is addressed to the sound discretion of the trial court which should be guided by equitable principles in determining whether relief should be granted or denied" Hous Auth of Morristown v Little 135 N.J. 274 283 (1994) (citations omitted) "On appellate review the trial judge's determination 'will be left undisturbed unless it represents a clear abuse of discretion'" DEG supra 198 N.J. at 261 (quoting Little supra 135 N.J. at 283) Under these circumstances and faced with the additional citation to applicable regulations that demonstrated defendant was not legally responsible it was a mistaken exercise of the judge's discretion to deny defendant's motion
Reversed and remanded for entry of judgment in favor of defendant.