SASS BELMONT MANAGEMENT, L.L.C. v. V. ZOLA POYNER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4691-06T14691-06T1

SASS BELMONT MANAGEMENT, L.L.C.,

Plaintiff-Respondent,

V.

ZOLA POYNER,

Defendant-Appellant.

___________________________________

 

Argued May 5, 2008 - Decided

Before Judges S.L. Reisner and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Hudson County, Docket No. LT-12209-06.

Ronald Kurzeja argued the cause for appellant (Ferrick & Kurzeja, attorneys; Mr. Kurzeja, of counsel and on the brief).

Anthony F. Gralewski argued the cause for respondent.

PER CURIAM

This is a landlord-tenant case. Defendant Zola Poyner appeals from a May 10, 2007 order denying her application to vacate a consent judgment and avoid her eviction from premises owned by her landlord, plaintiff Sass Belmont Management LLC (landlord).

These are the most pertinent facts. The landlord served Poyner with a notice to cease dated February 7, 2006, based on her habitual late payment of rent. A schedule of her payment history was attached to the notice. The landlord then served Poyner with a notice to quit dated June 15, 2006, based on her continued late payment of rent. On August 3, 2006, the landlord filed a complaint seeking to evict Poyner, pursuant to N.J.S.A. 2A:18-61.1(j). On September 5, 2006, the parties, both represented by counsel, entered into a consent judgment which required Poyner to vacate the apartment. However, the consent judgment also gave Poyner a "hardship extension" to remain in the apartment until March 15, 2007, conditioned on timely payment of the rent by no later than the tenth of each month.

While no further pleadings have been provided to us, the parties agree that on April 17, 2007, defendant filed an order to show cause seeking to vacate the consent judgment. On the return date, April 24, 2007, Judge Fast declined to vacate the consent order:

I am going to enforce the settlement agreement. . . . [T]he agreement was entered into consistent with the rules of court requiring approval by a tenant's attorney. That was done. I find that it was a reasonable confrontation [sic] of the parties that she would be out. The tenant did have the right to contest the allegations of the complaint and to defend against the alleged merits.

On this appeal, defendant argues, as she did before Judge Fast, that the consent order should be vacated because the trial court lacked jurisdiction to entertain the complaint. The argument is premised on alleged defects in the landlord's notice to cease, and the landlord's alleged failure to give the tenant continuing notices after each late payment. See A.P. Development Corp. v. Band, 113 N.J. 485, 505 (1988); Ivy Hill Park, Section III, Inc. v. Abutidze, 371 N.J. Super. 103, 188 (App. Div. 2004). We find defendant's appellate arguments to be without sufficient merit to warrant discussion in a written opinion, Rule 2:11-3(e)(1)(E), beyond the following comments.

Defendant's contention concerning lack of continuing notices is not supported by any citation to legally competent evidence, and it is not clear that defendant could have prevailed on a claim that the original notice to cease was insufficiently specific. See Ashley Court Enterprises v. Whittaker, 249 N.J. Super. 552 (App. Div. 1991). Moreover, we agree with Judge Fast that the consent judgment, which defendant signed with representation by counsel, is controlling. After the complaint was filed, defendant could have raised and litigated any jurisdictional or other defenses she may have had to the action. However, by settling the matter without litigating the jurisdictional issues, defendant waived her right to raise those defenses in a later proceeding to enforce the settlement. Defendant obtained a significant benefit by settling the matter and we perceive no unfairness or other error in the trial judge enforcing the agreement. See Long v. Mertz, 21 N.J. Super. 401, 403 (App. Div. 1952).

Accordingly, we affirm Judge Fast's May 10, 2007 order. In light of the length of time this matter has been pending, and defendant's prompt payment of the use and occupancy charges required by the May 10 order, we remand for entry of a further order vacating the stay and setting a date certain by which defendant must vacate the apartment. We do not retain jurisdiction.

 
Affirmed.

The May 10 order stayed Poyner's eviction pending the outcome of this appeal, conditioned on her paying a monthly amount for use and occupancy of her apartment. At oral argument, plaintiff's counsel confirmed that defendant has been making the required payments in a timely manner throughout the pendency of this appeal, but plaintiff still wishes to evict her because of the prior history of late payment and a perception that she was otherwise a difficult tenant.

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A-4691-06T1

May 15, 2008