NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 9, 2013
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-0521-12.
Lani M. D'Agostino argued the cause for appellants (Seidman & Pincus, L.L.C., attorneys; Mitchell B. Seidman, on the brief).
Joanne Venino argued the cause for respondent (Venino and Venino, L.L.C., attorneys; Ms. Venino on the brief; Thomas M. Venino, Jr., on the brief).
Before Judges Yannotti and Ashrafi.
In this action for money damages for breach of a commercial lease, defendant-tenant C&S Truck Sales, Inc., and its owner, defendant Ghazi Gharib, appeal from an order for summary judgment awarding more than $163, 000 to plaintiff-landlord, 577 Tonnele Avenue, LLC. Because summary judgment was granted without affording defendants the opportunity to conduct discovery and to gather evidence in support of their defenses and counterclaims, we reverse and remand for further proceedings.
Viewed most favorably to defendants as the parties opposing summary judgment, see R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the summary judgment record reveals the following facts and procedural history.
Plaintiff is the owner of a one-acre commercial lot in Jersey City that contains only a small building used as a sales office. In June 2007, plaintiff entered into a six-year lease with defendant C&S, which would use the property to sell used trucks. Defendant Gharib personally guaranteed payment of C&S's obligations under the lease. Beginning in 2008, C&S failed to pay the full amount of rent and other charges when due. By letter of plaintiff's attorney dated August 28, 2009, plaintiff canceled the lease in accordance with its terms.
Subsequently, plaintiff filed a complaint for summary eviction of C&S in the Special Civil Part, Landlord-Tenant Division. On November 9, 2009, the parties settled the eviction action, executing the landlord-tenant court's standard form for a "Consent to Enter Judgment (Tenant to Stay in Premises)."
Thereafter, the parties agreed to the entry of an amended consent judgment that was prepared by the attorney for plaintiff. The amended judgment, dated January 8, 2010, permitted C&S to continue its occupancy on the condition that it pay plaintiff $66, 687.20, which defendants acknowledged was then due and owning. Defendants also agreed to pay "all amounts coming due under the Lease between the parties, except real estate taxes, reference being made to the Lease for the purpose only of computing the amounts to be paid by the Tenant." C&S was to pay the sums due in installments — $20, 000 at the time of the agreement and $13, 487.20 each month while C&S's occupancy continued until all amounts due from C&S were paid up to date. The amended consent judgment allowed the immediate entry of a judgment for possession in favor of plaintiff, but it also provided that plaintiff would not request a warrant of removal if defendants made timely payments. If defendants complied with the agreement, the consent judgment would be vacated and the lease would be reinstated:
but all real estate taxes which would otherwise have been due from the Tenant under the Lease shall be forgiven, and the parties shall execute an appropriate Memorandum to evidence the reinstatement of the Lease. However, until that time, the Lease between the parties shall remain cancelled as it is now.
Over the ensuing months, C&S made substantial payments but not the total amounts due under the amended consent judgment. Nevertheless, plaintiff did not seek C&S's eviction. Instead, it attempted to find a substitute tenant while continuing to collect partial rent from C&S. As of December 2010, C&S had unilaterally reduced its installment payments to $7, 500 per ...