MIDDLETOWN SENIOR CITIZENS HOUSING CORPORATION v. FRANK MARTIN

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE COMMITTEE ON OPINIONS

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1144-04T11144-04T1

MIDDLETOWN SENIOR CITIZENS

HOUSING CORPORATION,

Plaintiff-Respondent.

v.

FRANK MARTIN,

Defendant-Appellant

___________________________________

Argued July 26, 2005 - Decided August 1, 2005

Before Judges Newman and Fall.

On appeal from the Superior Court of New

Jersey, Law Division, Special Civil Part,

Monmouth County, LT-4990-04.

Larry S. Loigman argued the cause for

appellant.

James H. Moody argued the cause for

respondent (Orlovsky, Moody, Schaaff

& Gabrysiak, attorneys; Mr. Moody, on

the brief).

PER CURIAM

Defendant Frank Martin appeals from an order issued on September 24, 2004, granting judgment of possession in favor of plaintiff Middletown Senior Citizen Housing Corp., dispossessing him from property known as One Shoal Harbor Court, Port Monmouth and ordering the issuance of a warrant of removal. On December 3, 2004, this court granted defendant's application for a stay and accelerated the appeal. We now affirm.

Plaintiff is a private, non-profit corporation that operates a housing complex for the elderly, handicapped, and persons of low income who are sixty-two years of age or older. Defendant, who was forty-one years old at time of trial, had been employed as the live-in superintendent at that complex since 1996. N.J.S.A. 2A:18-61.1(m) permits removal of a tenant if "[t]he landlord or owner conditioned the tenancy upon and in consideration for the tenant's employment by the landlord or owner as superintendent, janitor or in some other capacity and such employment is being terminated." Defendant was paid a salary and provided with an on-premises apartment. Defendant was not eligible to live at the complex, except for his employment.

On December 19, 2003, defendant was notified that his employment as superintendent was being terminated, effective January 2, 2004, due to the reorganization of plaintiff's maintenance department. The letter stated:

It is our understanding that you have agreed to enter into an agreement with the Maintenance contractor for your continued residency at Bayshore guaranteed by the [plaintiff] as long as you remain an employee of the contractor at this location.

Defendant was expected to become an employee of Brand Property Management (Brand), which had been hired by plaintiff to perform the maintenance functions at the complex. Defendant was to perform the same superintendent-type duties, and continue to live on the premises. However, on January 15, 2004, the New Jersey Housing and Mortgage Finance Agency notified plaintiff that the contract with Brand had been disapproved.

In the interim, on January 2, 2004, defendant, while on plaintiff's premises, fell on a broken sidewalk and sustained personal injuries. Defendant received medical treatment from plaintiff's workers' compensation carrier, had knee surgery, and filed a workers' compensation claim. He has physically been unable to resume anything other than light duty work, and claims to be have been repeatedly assured that his superintendent job would await his return. The record corroborates that it was plaintiff's intent, once the proposed private maintenance agreement with Brand fell through, that defendant continue as the live-in superintendent at the complex. The intervening injury prevented that from occurring.

A notice was served on defendant on May 10, 2004 stating, in pertinent part that

on December 19, 2003, Mr. Richard Gage advised you that your employment as maintenance supervisor for Bayshore Village was being terminated as of January 2, 2004. Since your occupancy of an apartment was contingent upon your continued employment, you were advised by Mr. Gage as well by my letter of January 16, [2004] that you were to vacate the apartment no later than January 31, 2004. However, despite said notification, you continue to remain in possession of an apartment at Bayshore Village.

Accordingly, unless you make immediate arrangements to vacate the apartment, further legal action will be instituted to have you removed.

Despite this notice, defendant refused to quit the apartment.

On or about June 3, 2004, plaintiff filed a complaint against defendant in the Special Civil Part seeking an order requiring him to pay rent for the apartment from February 2004 in the monthly amount of $473, plus the costs of utilities. The complaint alleged that defendant had been served with notice to quit and demand for possession on January 17, 2004, in compliance with N.J.S.A. 46:8-27.

On July 2, 2004, plaintiff filed a verified complaint in the Law Division against defendant, seeking an order requiring defendant to vacate the apartment that had been supplied to him while he was employed by plaintiff. An order to show cause was issued on July 2, 2004, directing defendant to show cause on July 16, 2004, why the relief requested in the complaint should not be granted. Defendant was served with the order to show cause and verified complaint on July 6, 2004.

On July 23, 2004, plaintiff served defendant with a demand for possession, terminating his right of occupancy to the employer-provided apartment as of July 31, 2004, "because you are ... not employed by Middletown Senior Citizens Housing Corp." This notice was served after the dispossession action had been instituted.

The dispossession action was tried in the Law Division before Judge O'Hagan on September 3, and September 7, 2004. At the conclusion of the trial, the judge found that because defendant was no longer able to perform the duties of superintendent, plaintiff had made a sufficient showing to warrant requiring defendant to vacate the premises. The judge afforded the parties time to discuss resolution of the matter, but they were unable to resolve it.

On September 13, 2004, the judge issued a written opinion finding that defendant's only right to occupy the apartment was an incident of his employment as superintendent. In granting judgment of possession in favor of plaintiff, the judge further stated:

It is indeed unfortunate that Mr. Martin was injured during the course of his employment. For sure, neither the Housing Authority nor any other employer can lawfully retaliate against a worker claiming benefits pursuant to the Workers' Compensation Statute. That, however, is not the situation that pertains here.

Rather, the Housing Authority hoped and expected that Mr. Martin would return to full time employment. As I remarked on the record, it was apparent that Messrs. Martin and Gage enjoyed a good businesslike relationship. Mr. Gage made clear that he was more than satisfied with Mr. Martin's efforts on behalf of the senior citizens.

Unfortunately, Mr. Martin cannot perform the required tasks now. Just as certain, there is a need for an on-site superintendent who can perform the tasks, including rendering assistance as appropriate when emergent circumstances develop.

The cases brought to my attention by [defendant's counsel] have nothing to do with the circumstance above described. That is, a circumstance where Mr. Martin's only right to occupy the premises continued for as long as he was employed. He is not so employed.

Defendant contends plaintiff failed to comply with the notice requirements set forth in N.J.S.A. 2A:18-61.1(m) by not setting forth the reason for termination as superintendent. He asserts that the statutory provision requires strict compliance and plaintiff's complaint was inadequate because it failed to explain that the tenancy was conditional on employment. Not so. The documented history between the parties established that the only reason the tenancy was terminated was because defendant was no longer employed as superintendent. We need not reiterate the notices and court actions instituted by plaintiff to remove defendant from the apartment provided to him as an on the premises superintendent. However, once defendant's employment was terminated, he could no longer occupy the apartment in a complex in which he was not eligible age-wise to reside.

Defendant also argues that since the premises are governed by the regulations of the Department of Housing and Urban Development, plaintiff was required to satisfy not only the anti-eviction statutes of the State, but federal law as well. He refers to 24 C.F.R. 247.4(a) which specifies the notice requirements for a termination of a tenancy. Such notice, defendant points out, requires service both by mail and personal service. Defendant maintains that there was no proof that this dual service requirement was met nor did the termination notice, even if properly served, indicate that it was not to be effective earlier than 30 days after receipt by the tenant, citing 24 C.F.R. 247.4(c).

The simple answer to plaintiff's argument is that the regulations cited are inapplicable. Defendant was not a tenant who was behind in rent payments. Defendant was not being federally subsidized, nor was he occupying the apartment under a lease agreement that spelled out the circumstances under which he could be evicted. Thus, no federal form of notice had to be followed in seeking defendant's eviction once his employment was terminated.

The order granting a judgment of possession and issuance of a warrant of removal is affirmed. The stay previously granted by this court pending appeal is dissolved.

 

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