MILLVILLE HOUSING AUTHORITY v. BRENDA SANDERLIN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0387-09T3

MILLVILLE HOUSING AUTHORITY,

Plaintiff-Appellant,

v.

BRENDA SANDERLIN,

Defendant-Respondent.

_________________________________

 

Submitted June 22, 2010 - Decided

Before Judges Fisher and Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Cumberland County, LT-001488-09.

Robinson & Andujar, attorneys for appellant (Arnold Robinson, on the brief).

Respondent has not filed a brief.

PER CURIAM

Plaintiff Millville Housing Authority appeals from an order dated August 26, 2009, dismissing a judgment of possession entered in plaintiff's favor against defendant Brenda Sanderlin and dismissing plaintiff's eviction action. We affirm.

This is what happened. On June 16, 2009, plaintiff filed a complaint seeking to evict Sanderlin for non-payment of the May and June rent (alleged to be $445 per month, totaling $890), plus court costs, or $1335 if the case was heard on or after July 1. On July 15, 2009, the Special Civil Part judge entered judgment for possession by default due to defendant's failure to appear. However, on August 17, 2009, defendant filed an order to show cause supported by a certification attesting that she did not appear for the July 15 hearing because she had been in a car accident. She also attested that her rent was $377 per month and that she had $1030 in back rent on hand and was prepared to pay it.

On August 18, 2009, Judge Harold U. Johnson, Jr. ordered the landlord to show cause why the judgment for possession should not be vacated, noting that the tenant had deposited $1030 into court. After a hearing before Judge Michael Brooke Fisher on August 26, 2009, the trial court entered an order on that date, directing turnover to the landlord of the $1030, and dismissing the eviction action.

During the August 26 hearing, plaintiff's attorney admitted that the monthly rent was $377, not the $445 recited in the complaint. He also recited that the amount owed was for "June, July and August," although the complaint had alleged non-payment for May and June. The attorney claimed that the total amount owed was $1073, not the $1030 the tenant had paid into escrow. However, the tenant represented that she would pay the extra $43 by the next Friday, along with September's rent which was due Friday. She also represented to the court that she had tried to pay her June and July rent, and later tried to pay the June, July and August rent, but plaintiff had refused to accept it.

The judge rejected plaintiff's characterization of defendant's application as seeking a "hardship stay" which would have only entitled her to a six-month stay of eviction. He also declined plaintiff's request to pursue the action due to an alleged "history of non-payment of rent," a claim not pled in the complaint.

On this appeal, plaintiff contends that the trial court lacked authority to dismiss the complaint instead of granting a six-month stay of eviction pursuant to the Tenant Hardship Act, N.J.S.A. 2A:42-10.6. We disagree. While the record contains a worksheet, apparently prepared by the clerk's office, characterizing defendant's application as seeking a hardship stay, it is clear from her sworn application that defendant was in fact seeking to vacate the judgment of possession. Indeed, she plainly stated an acceptable excuse for her failure to appear due to the auto accident, and a meritorious defense in that she had the rent money. See R. 4:50-1; Marder v. Realty Constr. Co., 84 N.J. Super. 313, 318-19 (App. Div.), aff'd, 43 N.J. 508 (1964). Under those circumstances, the trial court correctly vacated the default judgment and dismissed the action.

Affirmed.

 

The trial judge is not related to Judge Clarkson S. Fisher, Jr., who is assigned to this appeal.

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A-0387-09T3

July 30, 2010