MARK ZOLTAK v. ANNE O'CONNOR

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2790-07T12790-07T1

MARK ZOLTAK, as agent

for JOSEPH GORGA,

Plaintiff-Respondent,

v.

ANNE O'CONNOR,

Defendant-Appellant.

________________________________________________________________

 

Argued September 29, 2008 - Decided

Before Judges Carchman, R. B. Coleman

and Simonelli.

On appeal from the Superior Court of New

Jersey, Law Division, Special Civil Part,

Hudson County, Docket No. LT-1082-06.

Scott K. McClain argued the cause for

appellant (Winne, Banta, Hetherington,

Basralian & Kahn, attorneys; Mr. McClain,

of counsel and on the brief).

Joseph A. Pojanowski, III, argued the

cause for respondent (Pojanowski &

Trawinski, attorneys; Mr. Pojanowski,

of counsel and on the brief).

PER CURIAM

This is a landlord-tenant action and an appeal from a judgment of possession entered by the Special Civil Part on March 28, 2006. The judgment was stayed awaiting the resolution of matters pending in other forums. Ultimately, following the disposition of those matters, on November 27, 2008, the judge ordered defendant Anne O'Connor "locked out" of the premises; but extended the lockout date to February 1, 2008, later extended to February 13, 2008. We stayed that order pending appeal. We now reverse and remand for trial.

We briefly summarize the relevant facts. Defendant resides in a "ground floor" or "basement" apartment located at 535 Garden Street, Hoboken, New Jersey. Defendant suffers "major recurrent and chronic depression with anxiety disorders including in part, panic disorder, agoraphobia, and obsessive compulsive disorder (OCD) and is legally disabled by these disorders." She also takes medication on an "as needed basis." According to her treating psychiatrist, when situations are stressful to her, "she is unable to absorb, comprehend, assimilate, process, respond and otherwise relate at a 'normal' rate." In other words, "she needs weeks where others need days, hours when others needs minutes." Defendant was declared disabled in 1991, and her sole source of income is SSI benefits from Social Security, together with assistance from her parents for rent for her rent-controlled apartment.

Defendant has resided in the apartment for approximately eighteen years. The former landlord "apparently tolerated her using the hallway outside her apartment for bookshelves and children's art work" and "the 1991 written lease agreement provided that the landlord have occasional access" to the meters located in the hallways. In 1997, the property was purchased by Joseph Gorga, the current landlord and plaintiff's principal.

In 2005, plaintiff brought a tenancy action seeking possession claiming that defendant would not sign the new rules and regulations that the landlord had proposed. In that action, defendant disputed, among other things, the imposition of new rules and regulations. Defendant claimed that the new rules and regulations were unreasonable due to her mental illness. After a hearing, the judge issued "a written opinion as to what rules and regulations would be appropriate under the circumstances" and gave defendant until September 1, 2005 to sign the new lease. After defendant allegedly refused to sign the new rules and regulations, plaintiff filed for a summary action for possession. Subsequently, the judge issued a letter opinion entering a judgment for possession, effective September 13, 2005, because defendant had not accepted the deadline to sign the new lease. Defendant signed a revised version of the "rules and regulations" on September 29, 2005.

Paragraph 38 of the signed rules and regulations states: "TENANT IS NOT PERMITTED TO LOCK THE HALLWAY DOOR LEADING TO THE BASEMENT OR USE THE COMMON AREA IN THE HALLWAY FOR STORAGE." Defendant apparently did not comply with the rules and regulations, and by letter of September 30, 2005, plaintiff's attorney notified defendant that "the doorway to the common area will be removed . . . [i.e.] the door that separates the common area in front of [the] apartment and the rest of the building." Despite this being common space and necessary for access to meters and other landlord needs, defendant claimed that "due to her mental disability, she needed to maintain . . . the hallway [as a] 'buffer zone' between her home and the outside world".

Plaintiff did not remove the door at that time but instead filed a second complaint for possession on January 9, 2006. In the new complaint, plaintiff alleged that, in violation of the new lease, defendant had failed to remove personal items and provide access to the hallway of her apartment. Plaintiff's summary dispossess action was scheduled to be heard on February 7, 2006. During the hearing, defendant's counsel requested a stay of the proceedings so that defendant could file a complaint with the Department of Housing and Urban Development (HUD), which was granted, and later that month, defendant filed a housing discrimination action against the landlord with HUD. The action was subsequently transferred to the New Jersey Division of Civil Rights.

The February 7th hearing was adjourned to March 22, 2006, at which time the judge concluded that he would "grant the stay." When plaintiff's counsel raised the issue of fees, the judge declined to rule on that issue, stating that "the [fees] may be awarded if you prevail. For the time being, on this motion, you're not prevailing and . . . I will not allow fees . . . for the present time." (emphasis added).

On March 22, 2006, the trial judge also visited the premises and reported his observations. Summarizing his observations, he noted that from the street sidewalk, the apartment is accessible "by going down a few steps into what may be considered a subgrade apartment." Defendant's apartment is the only one on that floor. Upon entering the building from the apartment, there is a door with two locks, a hallway and defendant's apartment. In the hallway, there is a shelf about six and a half feet high with shoes and boots on it. Underneath the shelf, there are hooks and a rack with clothing hanging up, but it does not extend any further than the shelf. Across from the shelf, there is an area "which holds meters, apparently electric or electric and gas for all the tenants in the building." Straight ahead through the hallway is the defendant's apartment.

On March 28, 2006 the judge entered an Order providing, in relevant part:

1. the judgment for possession shall be granted to the plaintiff, but no Warrant for Removal shall be issued until the final determination of the action which has been filed by the defendant against the plaintiff with [HUD] and . . .

In an opinion addressing the motion to stay pending appeal, the judge stated that defendant "used a common hallway for storage of her personal property . . . and deni[ed] access to the landlord of an area in which certain utilities and meters are located." He also "found these breaches to have been substantial and that the landlord had complied with all requirements for the service of the notices to cease and to quit (with a demand for possession)." On June 15, 2007, the New Jersey Division of Civil Rights denied defendant's housing discrimination claim finding no probable cause. On October 12, 2007, the Division denied the defendant' motion for reconsideration, and plaintiff moved for a warrant for removal. The application was granted and a lockout was scheduled for November 15, 2007.

Defendant pro se moved for an application for "post-judgment relief." During the November 14 motion, she argued the issue that the March 22, 2006 hearing was not a trial. In response, The judge stated: "Miss O'Connor, I don't accept that because I was the trial judge . . . . I was also the judge on post-judgment application. I was also the judge who stayed the case for what I believe, at this point, is over a year . . . ." He then entered an order extending the lockout date to February 1, 2008. Subsequent motions for hardship relief were denied, and a lockout was ultimately rescheduled for February 13, 2008. This appeal followed, and we stayed the lockout pending appeal. Almost two years has passed from the time of the original judgment of possession until the filing of the notice of appeal.

On appeal, defendant asserts that the judgment for possession was entered without a hearing or findings; the appeal was timely; the issues prompting the judgment for possession have been corrected by plaintiff's "self-help" and the complaint should be dismissed; and the trial judge erred by not granting relief from the judgment, R. 4:50-1. Plaintiff counters by challenging the propriety of the appeal as being out of time, seeks dismissal for failure to post costs, and asserts that the late cure does not render the case moot.

We are constrained to observe that what dominated the decision-making below, as well as tolerance for the untoward delays in moving this matter forward, was the recognition, certainly by the trial judge and all concerned, that defendant's mental health precluded precipitous action and required affording her all options of redress.

We decline to dismiss the appeal as out of time. The March 28, 2006 order relied on by plaintiff as the final judgment provides in relevant part:

6. . . . the determination as to whether or not Plaintiff's counsel shall be entitled to counsel fees is hereby reserved pending the outcome of the actions filed the [sic] Defendant against Plaintiff with both the State of New Jersey and [HUD] as referenced above. . . .

A judgment is final for purposes of appeal if it "dispos[es] of all issues as to all parties." Wein v. Morris, 194 N.J. 364, 377 (2008) (quoting Hudson v. Hudson, 36 N.J. 549, 552-53 (1962). See also Grow Co. v. Chokshi, 403 N.J. Super. 443, 458 (App.Div. 2008) (noting that "with very few exceptions only an order that finally adjudicates all issues as to all parties is a final order."); Vitanza v. James, 397 N.J. Super. 516, 518 (App.Div. 2008) (noting that "to be appealable, as of right, a matter must be resolved in the trial court as to all issues and all parties.") (citations omitted). Recently, in Chokshi, supra, 403 N.J. Super. at 461, we determined that an undecided issue of counsel fees made the judgment interlocutory in nature. See also General Motors Corp. v. City of Linden, 279 N.J. Super. 449, 456 (App.Div. 1995), rev'd on other grounds, 143 N.J. 336 (1996). Here, it was not until ruling on February 4, 2008, on plaintiff's motion to set aside the judgment, that the judge denied fees. The notice of appeal was filed February 8, 2008, and we deem it timely.

Our difficulty in addressing the merits of the appeal is that there is a substantial void in the record between the judge's consideration of the original complaint and the ultimate findings that he made at the time of issuance of the stay pending the action before the Division of Civil Rights. We are unable to discern the source of the subsequent findings. In the 2005 tenancy action, the judge considered testimony and entered a judgment of possession based on defendant's refusal to execute the modified rules and regulations. She ultimately did so and essentially cured the violation prompting the judgment.

The second action for possession filed in January 2006 did not prompt a hearing but resulted in the March 22, 2006 stay pending resolution of the complaint filed with the United States Department of Housing and Urban Development and ultimately rejected by the New Jersey Division of Civil Rights. While the judge made a series of "findings" at the time of granting the stay, we are unable to discern the discrete basis for such findings. No new hearing was held; no determination was made as to the alleged violations, and no new consideration was given to the materiality of the alleged violated rules. In fact in the judge's March 28, 2006 order granting the judgment of possession, he alludes to the circumstances that his decision was based, in part, on "[the court's] recollection of the facts of the instant case incaptioned, Zoltak v. O'Connor, filed in the Superior Court of New Jersey, Hudson County, Special Civil Part, Docket No. LT-4362-05." That was a different case. In fact, the judge acknowledged that a trial was to be held in the future. It never took place. According to the judge, the proceeding that prompted the judgment for possession was, in fact, a consideration of a motion for a stay, which was described by the judge as simply "oral argument" without witnesses or clients. As the judge said, "this is a motion only." Other than the facts adduced during the trial of 2005 tenancy action, no new facts were adduced in this tenancy action, bearing the same caption but different docket number, Docket No. Lt-1082-06, which is the subject of this appeal.

We are not critical of the trial judge in this case. He has demonstrated infinite patience and understanding of a very difficult and recurrent situation. However, the new complaint warranted a new fact-finding hearing to afford both sides the opportunity to demonstrate the facts as they existed at the time of that trial. Moreover, even as this matter proceeded in the Law Division, the facts changed as well for, in February 2008, the landlord removed the offending door, opening the basement area and creating circumstances different from those observed by the judge during his inspection.

This is a rent-controlled apartment that has been occupied by defendant for approximately eighteen years. She, or persons on her behalf, has paid her rent during her tenancy. She suffers from severe emotional issues and has been involved in a dispute with her new landlord about use of a common area. We deem the appropriate course of action to be a remand for a hearing on the January 2006 complaint. At the hearing, the judge should consider whether there has in fact been a cure, N.J.S.A. 2A:18-61.1e; see also Housing and Redevelopment Authority of the Tp. of Franklin v. Mayo, 390 N.J. Super. 425, 435 (App.Div. 2007) (remanding the case to allow the trial court to determine whether "the breach of the lease has been or can be adequately cured despite the late departure of [] unauthorized

lodgers."); Kuzuri Kijiji, Inc. v. Bryan, 371 N.J. Super. 263, 272 (App.Div. 2004) (quoting RWB Newton Assocs. v. Gunn, 224 N.J. Super. 704, 709-10 (App. Div. 1988)) (holding that "a notice to cease must explicitly advise the tenant that the activity is offensive, and the tenant must be given a reasonable opportunity to cure the offending behavior."); Brunswick Street Assocs. v. Gerard, 357 N.J. Super. 598, 602 (Law Div. 2002) (noting that N.J.S.A. 2A:18-61.1e requires "some period . . . to permit a tenant to 'cure' the breach alleged in the notice to cease."); N. C. Hous. Assocs. v. Hightower-Cooper, 281 N.J. Super. 317, 324-325 (Law Div. 1995) (same), either by defendant's actions or by plaintiff's self-help removal of the door in February 2008. The judge should also consider whether there has been substantial compliance with the landlord's regulations.

Our decision to remand for trial renders the additional issues moot.

Reversed and remanded for trial. We do not retain

jurisdiction.

 

(continued)

(continued)

12

A-2790-07T1

January 26, 2009