NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 13, 2013
On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, Docket No. LT-027488-12.
Law Offices of Sam D. Han, attorneys for appellant (Sam D. Han, on the brief).
Essex-Newark Legal Services, attorneys for respondent (Abbott Gorin and Felipe Chavana, on the brief).
Before Judges Messano and Hayden.
It is undisputed that defendant, Shaqueena Ewings, is a tenant at property owned by plaintiff, Berkeley Acquisitions, LLC, and the property is subject to regulations imposed by the federal Department of Housing and Urban Development (HUD). On or about July 13, 2012, plaintiff served defendant with a "30-Day HUD Notice to Quit" purporting to terminate her tenancy effective August 13, 2012. The stated reason for the termination was defendant's violation of her lease and "[s]tate law, " specifically that she had violated N.J.S.A. 2A:18-61.1p, by committing an assault, N.J.S.A. 2C:12-1, and terroristic threat, N.J.S.A. 2C:12-3, against one of plaintiff's employees.
On September 4, 2012, plaintiff filed a complaint in the Special Civil Part seeking defendant's eviction, attaching to the complaint a copy of the notice to quit. A default judgment for possession was entered on October 23, 2012, but that was subsequently vacated on defendant's motion, and the matter proceeded to trial.
Plaintiff produced its security guard, Alieu Kamara, who testified that on July 11, defendant approached the security booth and engaged in a profanity-laced tirade about security measures at the premises. According to Kamara, defendant grabbed the open security gate and permitted certain individuals who were there to see another tenant, and an individual there to see defendant, to enter in violation of identification protocols. When Kamara objected, defendant allegedly threatened to "pay somebody to come and shoot [him] . . . ." Kamara tried to explain, but defendant allegedly spit on him through the booth's window. Kamara called police, who responded, but did not arrest defendant, noting without attribution in their report that they were advised that the events resulted from a "misunderstanding." Kamara testified that he had seen defendant many times since the incident without any problem.
Plaintiff also called its property manager, Aaron Hirsch, as a witness. Hirsch acknowledged that he had not witnessed the incident. However, he claimed that defendant later apologized for her actions, and stated she "shouldn't have spit at [Kamara]."
Defendant also testified. On the day in question, she arrived at the booth having been notified that she had a visitor. She admitted becoming frustrated as Kamara dealt first with the visitors for another tenant, but, she denied ever threatening Kamara or spitting on him. Defendant contended Kamara actually had spit on her.
The judge rendered an oral decision on the record. Noting that plaintiff bore the burden of proving a violation of the statute by a preponderance of the evidence, the judge found the "overall" testimony to be "truthful." However, he rejected any claim that defendant threatened to kill Kamara. The judge also stated that "based on the different testimony of the witnesses and an assessment of credibility, " he could not conclude plaintiff had proven a violation of N.J.S.A. 2A:61.1p by a preponderance of the evidence.
The judge also stated that he was "less than convinced . . . that there was an intentional . . . discharging [of] spit . . . from [defendant] onto . . . Kamara." The judge noted defendant's "spotless record" and concluded that, although defendant was "not controlling herself in an adequate way" and engaged in unbecoming conduct, plaintiff had failed to prove a violation of the ...