ORCA 4521 COTTAGE, LLC v. CARMEN HERNANDEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1637-09T2

ORCA 4521 COTTAGE, LLC,

Plaintiff-Appellant,

v.

CARMEN HERNANDEZ,

Defendant-Respondent.

__________________________________

January 3, 2011

Submitted December 14, 2010 - Decided

Before Judges Messano and Waugh.

On appeal from Superior Court of New Jersey, Hudson County, Law Division, Special Civil Part, Docket No. LT-14704-09.

Tara P. D'Amato, attorney for appellant.

Respondent has not filed a brief.

PER CURIAM

Plaintiff ORCA Cottage LLC (ORCA) appeals the dismissal of its landlord-tenant complaint seeking possession of the apartment rented to defendant Carmen Hernandez on the grounds of habitual late payment of rent. We affirm.

We discern the following factual and procedural background from the record. Hernandez has a history of late payment of rent. ORCA sent her notices to cease, as required by N.J.S.A. 2A:18-61.1(j), on August 21, 2008, November 19, 2008, and December 23, 2008.

Hernandez made a payment in February 2009, which was for the January 2009 rent. She did not pay the February 2009 rent. ORCA filed a landlord-tenant action based upon that non-payment of rent. Hernandez paid the February rent in March, but did not pay the March rent. Consequently, ORCA declined to dismiss the pending non-payment action.

Hernandez failed to appear at the March trial date and was defaulted. Eventually, the default was vacated and the matter was resolved by the payment of all rent due through April 2009. Hernandez paid the May rent in June. ORCA then served its notice to quit on June 29, 2009. The landlord-tenant complaint based upon habitual late payment was filed on September 28, 2009.

At trial on October 20, 2009, Judge Mahlon L. Fast raised the issue of whether ORCA's acceptance of rent in 2009, without notifying Hernandez that the acceptance of the rent did not "void" its right to rely on the December 2008 notice to cease, prevented it from doing so. He cited A.P. Development Corp. v. Band, 113 N.J. 485, 505-06 (1988) ("[L]andlords must give clear notice and continue to give such notice to their tenants after a Notice to Cease is served. Such notice should state that the Notice to Cease remains applicable and continual habitual late payment of rent may lead to eviction.") and Ivy Hill Park, Section III, Inc. v. Abutidze, 371 N.J. Super. 103, 116 (App. Div. 2004) (same). ORCA argued that the intervening action for possession based upon non-payment, albeit unsuccessful, nevertheless put Hernandez on notice that ORCA was not waiving its rights to pursue its claim for habitual lateness by acceptance of late rent.

The judge issued a written opinion on October 29, 2009. He rejected ORCA's argument about the intervening non-payment action. He concluded that "an action based on non-payment does not equate with notification that the prior notices to cease were not waived by subsequent acceptance of rent" because "the causes of action were different." He also observed that "there would have been no significant burden to [ORCA] in the satisfaction of the Ivy Hill requirement." He dismissed the complaint.

On appeal, ORCA argues that the trial judge erred as a matter of law in holding that ORCA was required to give specific notice to the tenant that rental payments made between the last notice to cease and the notice to quit were accepted without prejudice to the right to pursue eviction for late payment. It also contends that the judge erred in raising the Ivy Hill notice requirement sua sponte.

Having reviewed the issues raised on appeal, we find them to be without merit and not warranting extended discussion in a written opinion. R. 2:11-3(e)(1)(E). Consequently, we affirm essentially for the reasons stated by Judge Fast in his written opinion. We add only the following.

The record supports the judge's finding that ORCA accepted rent without giving the informal notice required by A.P. Development and Ivy Hill. Hernandez paid all rent due to resolve the eviction action premised on non-payment, and received no further notices to cease prior to the notice to quit.

We also see no error in the judge's having raised the issue of waiver in the context of a summary landlord-tenant action with a pro se defendant. Because there is no requirement that a tenant file an answer or raise affirmative defenses prior to trial, ORCA's citation of cases such as Brown v. Brown, 208 N.J. Super. 372, 384 (App. Div. 1986) is inapposite. In addition, the judge was required to determine whether the landlord had complied with the applicable provisions of N.J.S.A. 2A:18-61.1(j) concerning notice.

We add, as a caution to Hernandez, that, if she persists in paying her rent late, she is subject to removal if ORCA complies with the requirements of N.J.S.A. 2A:18-61.1(j), as interpreted in A.P. Development and Ivy Hill, and more recently Carter v. Richardson, ____ N.J. ____ (2010) (slip. op. at 19). ORCA is not without a remedy provided it follows the correct procedures.

Affirmed.