FDG MANAGEMENT, LLC v. MARCUS YOUNG

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

FDG MANAGEMENT, LLC,

Plaintiff-Appellant,

v.

MARCUS YOUNG,

Defendant-Respondent.

_______________________________

December 4, 2015

Submitted November 16, 2015 - Decided

Before Judges Sabatino and O'Connor.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. LT-33768-14.

Sobel Han, LLP, attorneys for appellant (D. Sam Han, on the brief).

Respondent has not filed a brief.

PER CURIAM

Plaintiff FDG Management, LLC ("the landlord") appeals the Special Civil Part's dismissal of the landlord's eviction case against defendant Marcus Young ("the tenant") following a trial on December 2, 2014. The landlord's case rested upon N.J.S.A. 2A:18-61.1(c), which authorizes eviction where a tenant "has willfully or by reason of gross negligence caused or allowed destruction, damage[,] or injury to the premises." After considering the respective testimony of the landlord's property manager, and of the tenant, and also closely viewing a videotape of the incident in question, the trial judge concluded that the tenant's conduct did not amount to behavior that met the requirements of the statute. We concur, and affirm.

The record shows that the tenant resided in the landlord's multi-unit building in East Orange. On June 30, 2014, the tenant attempted in the middle of the afternoon to gain entry to the front door after coming home from work. The door consisted of a glass pane with an aluminum or other metal frame. Because the premises had been undergoing renovations, the tenant's key to the front door did not work. The tenant pulled at the front door several times and it would not open. He also tapped at the bottom on the door with his foot, and that also failed to release it.

The tenant rang the bell, tapped the door one more time with his foot, and pulled several more times before waiting until someone inside the building appeared in the front lobby. That individual was unable to get the front door to open from the inside. He motioned to the tenant to meet him at the side of the building, where he was able to let the tenant in through a different door.

The property manager claimed that the tenant's attempts to gain entry had damaged the door. The property manager hired a company to replace the door at a cost to the landlord of $1,250. The tenant explained in his testimony that he was simply trying to gain entry into his place of residence, or to get someone else's attention to let him inside.

Although the landlord contended that the tenant had damaged the door by acting violently and improperly to try to get the door open, the trial judge disagreed after carefully reviewing the surveillance footage. The judge described the tenant's movements as "gently" pulling at and tapping the door, and rejected the landlord's more extreme characterization of the tenant's movements.

In reviewing the trial judge's determination, we accord substantial deference to his special role as a fact finder. See Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 (1974) (instructing that a trial court's findings are generally binding on appeal "when supported by adequate, substantial and credible evidence"). Such deference is especially appropriate when the evidence is largely testimonial and involves questions of credibility. Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011). That said, we review de novo a trial court's determinations on questions of law. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

The applicable statutory provision, N.J.S.A. 2A:18-61.1(c), does not authorize a tenant's eviction for causing damage to the landlord's premises unless the tenant "has willfully or by reason of gross negligence caused or allowed" such damage. The statue has been construed to require that the tenant's conduct amount to more than simple negligence. For example, in Muros v. Morales, 268 N.J. Super. 590, 597 (App. Div. 1993), we concluded that a tenant's willful actions in drilling holes in the floor in order to gain access to electric current from the basement outlets was sufficient to meet the statute's culpability requirement. In that same vein, in Stuyvesant Assocs. v. Doe, 221 N.J. Super. 340, 343 (Law Div. 1987), the statute was construed to authorize eviction where a tenant spray-painted appliances and windowsills and used a hammer to damage the door of another tenant in the building.

Likewise, in Ivy Hill Park Section III v. Smirnova, 362 N.J. Super. 421, 424-25 (Law Div. 2003), the court agreed with the landlord that a tenant's conduct in boiling a pot of urine on the stove while being tired and then falling asleep while a plastic handle on the pot melted amounted to "grossly negligent" conduct under N.J.S.A. 2A:18-61.1(c), even though other facets of the statute were not satisfied. As the court aptly noted, gross negligence is "conduct that comes somewhere between 'simple' negligence and the intentional infliction of harm, or, 'willful misconduct.'" Id. at 425 (citing Clarke v. Twp. of Mount Laurel, 357 N.J. Super. 362 (App. Div. 2003)).

This construction of N.J.S.A. 2A:18-61.1(c), requiring that the tenant's actions or inactions are more culpable than ordinary negligence, is consistent not only with the text of that provision, but with the general legislative policies of the Anti-Eviction Act, N.J.S.A. 2A:18-53 to -84. "[T]he dominating principle in construing the Act [is] that it must be construed liberally with all doubts construed in favor of a tenant[.]" 224 Jefferson St. Condo. Ass'n. v. Paige, 346 N.J. Super. 379, 389 (App. Div.), certif. denied, 172 N.J. 179 (2002).

Applying these principles to the evidence in this record, we agree wholeheartedly with the trial judge's conclusion that the tenant's conduct here did not meet the requirements of N.J.S.A. 2A:18-61.1(c). We have ourselves reviewed the surveillance video of the building entry, and we agree that the tenant's efforts to open the door have been exaggerated in the landlord's arguments. Although the tenant did visibly apply some degree of force upon the door, the force was not severe under the circumstances, even though it apparently might have caused the door to become damaged. The landlord failed to meet this burden of proof in establishing that the tenant's behavior was either "willful misconduct" or "grossly negligent." At most, the tenant's conduct was only simple negligence, resulting from his understandably-frustrated inability to gain access to the building or to get anyone to open the front door for him.1 There was no proof that the landlord posted a sign directing tenants and visitors to go to the side entrance, which would have perhaps avoided this unfortunate scenario altogether.

Affirmed.

1 We regard the trial judge's oral observation that there was no "willful gross negligence" here to be either a slip of the tongue or a transcription error. In any event, the possible oral garbling of the standard is inconsequential because our role as an appellate court is to review final judgments rather than one judge's opinions. See El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 169 (App. Div. 2005).