KERRIGAN AVENUE REALTY, INC. v. JUDITH LECARO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6246-04T36246-04T3

KERRIGAN AVENUE REALTY, INC.,

Plaintiff-Appellant,

v.

JUDITH LECARO,

Defendant-Respondent.

 
 

Argued telephonically October 12, 2006 - Decided November 9, 2006

Before Judges Kestin, Weissbard and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Hudson County, LT-9939-05.

Dwight D. de Stefan argued the cause for

appellant (Liebowitz, Liebowitz & Stern,

attorneys; William C. Rindone, Jr., of

counsel and on the brief).

Gregory G. Diebold argued the cause for

respondent (Northeast New Jersey Legal

Services Corp., attorneys; Mr. Diebold,

of counsel and on the brief).

PER CURIAM

Plaintiff Kerrigan Avenue Realty, Inc., a landlord, appeals from the dismissal of its action for possession with respect to an apartment occupied by defendant Judith Lecaro in plaintiff's twenty-one unit residential apartment complex in Cliffside Park. Plaintiff based its action on defendant's alleged violation of a "no pet" provision in defendant's lease.

After a bench trial, Judge Fast found that plaintiff was estopped from enforcing the no-pet provision based on permission granted by an agent of the prior landlord, plaintiff's predecessor, for defendant to harbor her pet notwithstanding the restriction in the lease.

On appeal, plaintiff argues that the trial judge's conclusions: (1) were contrary to applicable law; (2) were inconsistent with and contrary to the weight of the credible evidence; and (3) were influenced by irrelevant and prejudicial testimony. To the extent that the last argument deals with evidence of defendant's financial situation and her poor health, we conclude that it is without sufficient merit to warrant extended discussion in this opinion. R. 2:11-3(e)(1)(E).

Plaintiff also argues that it was error to admit certain "hearsay" testimony. This evidence came from defendant's son, who testified that sometime soon after the signing of defendant's 1992 lease, he received explicit permission from an employee, described only as an "Asian woman," who managed the property for the prior landlord, that defendant could keep a pet in her apartment. Judge Fast found this testimony to be credible and, despite plaintiff's claim that it is implausible, we are bound by that credibility determination. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). Accepting the fact of such a conversation, we conclude that it was not hearsay at all. N.J.R.E. 801(c). Rather, the statement of the manager was the type of "verbal conduct" that we have excepted from the definition of hearsay. See Ringwood Assocs., Ltd. v. Jack's of Route 23, Inc., 166 N.J. Super. 36, 41-43 (App. Div. 1979); Robinson v. Branch Brook Manor Apartments, 101 N.J. Super. 117, 122 (App. Div.), certif. denied, 52 N.J. 487 (1968). Rather than being admitted for the truth of the matter asserted, the witness' inquiry and the manager's response constituted the agreement between landlord and tenant which allowed defendant to keep her pet despite the prohibition in the lease.

In light of this analysis, Judge Fast was correct in finding that the present landlord was estopped to deny the prior agreement upon which defendant relied in keeping her pet. While the dog that was the subject of the agreement subsequently died, there is no suggestion that the permission was limited to that dog, particularly given the fact that the superintendent and other tenants also had pets at the time. Thus, in obtaining another dog, defendant reasonably relied on the prior agreement, and the prior landlord took no action to change that situation or signify its disapproval in the several years thereafter, prior to the sale of the complex to plaintiff in 2004. Judge Fast properly found the elements of an estoppel, whether equitable or promissory, to exist. See Friedman v. Tappan Dev. Corp., 22 N.J. 523, 537 (1956) (promissory estoppel); Carlsen v. Masters, Mates & Pilots Pension Plan Trust, 80 N.J. 334, 339 (1979) (equitable estoppel). Judge Fast's conclusion finds persuasive support in Royal Assocs. v. Concannon, 200 N.J. Super. 84 (App. Div. 1985) and Young v. Savinon, 201 N.J. Super. 1 (App. Div. 1985). Terhune Courts v. Sgambati, 163 N.J. Super. 218 (Cty. Dist. Ct. 1978), aff'd o.b., 170 N.J. Super. 477 (App. Div. 1979), certif. denied, 84 N.J. 418 (1980), upon which plaintiff places its primary reliance, is of questionable authority in light of Judge Dreier's analysis in Royal Assocs., supra, 200 N.J. Super. at 93 and Young, supra, 201 N.J. Super. at 6-11.

Nevertheless, even though plaintiff is bound by the agreement between defendant and plaintiff's predecessor, that agreement does not survive the life of defendant's present pet. See Royal Assocs., supra, 200 N.J. Super. at 93-94; Young, supra, 201 N.J. Super. at 9. Because plaintiff has signified that it will enforce the no-pet provision, defendant cannot reasonably claim to rely upon any agreement to the contrary if she were to purchase another dog. The prohibition is, in the abstract, reasonable and may be enforced going forward. Of course, while there is no contention here that plaintiff's pet has caused any problems, the landlord is free to invoke other provisions of the lease if that situation were to change.

Affirmed.

 

(continued)

(continued)

5

A-6246-04T3

November 9, 2006