CAR TYME MOTORS, INC v. DR. RUBEN FLEURANTIN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

CAR TYME MOTORS, INC.,

Plaintiff-Respondent,

v.

DR. RUBEN FLEURANTIN,

Defendant-Appellant.

_________________________________

April 22, 2016

Submitted January 27, 2016 Decided

Before Judges Ostrer and Manahan.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, Docket No. LT-30838-14.

Dr. Ruben Fleurantin, appellant pro se.

Respondent has not filed a brief.

PER CURIAM

In this commercial landlord-tenant matter, defendant Dr. Ruben Fleurantin, appeals from a Special Civil Part order dismissing a proposed order to show cause that sought to prevent his removal from premises he occupied in Irvington. We affirm.

We discern the following facts from the record. Sometime in the fall of 2014, plaintiff Car Tyme Motors, Inc. (Car Tyme) secured, by default, a judgment of possession of defendant's premises, and a warrant of removal.1 Car Tyme had obtained ownership of the underlying property in a sheriff's sale after Bayview Loan Servicing foreclosed upon the prior owner, Marci Court Investment, LLC (Marci). Defendant asserts that he was a lawful tenant of Marci. However, the lease is not in the record, and defendant apparently did not present a copy to Car Tyme, which offered to rent or sell the premises to defendant.

In defendant's certification in support of relief from the judgment of possession, he contended he did not previously appear because he was not served. He argued the eviction should be stopped because he had no relationship with Car Tyme and Marci had appealed the foreclosure judgment. At the December 3, 2014 hearing on his proposed order to show cause, defendant focused on Car Tyme's right to possession, contending that Marci was in the process of appealing the foreclosure judgment.2 Car Tyme argued it had acquired a valid deed and was entitled to terminate any lease with the prior owner.

The court denied defendant relief, although the record does not include a formal order. The court found that absent a stay, any appeal by Marci did not affect Car Tyme's right to possession, which was based on its acquisition of title.

Roughly three hours after the judge ruled, defendant returned to the courtroom, apparently ex parte, and explained to the judge that he also sought to challenge the judgment of possession on the ground that he was not personally served. The judge declined to alter his original decision, stating the issue could be raised on appeal. Defendant was apparently thereafter removed from the property.

Defendant filed his notice of appeal on December 9, 2014. A different panel denied his application for permission to file an emergent motion for relief, because he had not first sought a stay from the trial court. Defendant then wrote to the trial judge, with a copy to plaintiff's counsel, seeking a stay. His letter recited the facts supporting his claim that he was not served and included supportive documents that, as best we can tell from the record, were not previously provided to the court. The court apparently did not issue an order on the request for stay. The panel subsequently denied defendant's requests for a stay in two separate orders in February and May 2015.

In this appeal, defendant contends he was entitled to relief from the judgment of possession because he was not properly served.

Ordinarily, we will dismiss as moot an appeal challenging an eviction where the tenant has been removed, and the premises have been re-rented, or the tenant has vacated the premises. See Daoud v. Mohammad, 402 N.J. Super. 57, 61 (App. Div. 2008) ("Because the court's jurisdiction is limited to determining the issue of the landlord's right to possession of the premises, and . . . the tenant vacated the premises and the premises have been re-rented, the issue can no longer be determined."); Sudersan v. Royal, 386 N.J. Super. 246, 251 (App. Div. 2005) ("Ordinarily, where a tenant no longer resides in the property, an appeal challenging the propriety of an eviction is moot."); Ctr. Ave. Realty, Inc. v. Smith, 264 N.J. Super. 344, 347 (App. Div. 1993) (tenant's right to remain on premises is moot where tenant voluntarily vacated premises despite a stay of ejectment). The removed tenant still has a right to seek, in the Law Division, damages arising from a wrongful eviction. Daoud, supra, 402 N.J. Super. at 61.

We recognize that the record does not indicate the current status of the property, or whether defendant has obtained alternative space. However, there is another reason we do not reach defendant's contention that he should have been granted relief from the judgment of possession based on lack of service. Although he asserted in his certification in support of relief that he was not properly served, he apparently did not offer any documentary support or address this claim at oral argument. Given that the sole argument presented at the hearing was that plaintiff was not entitled to possession because of Marci's challenge to the foreclosure judgment, the court did not err in initially denying relief. We also find no error in the court's refusal to entertain defendant's belated attempt to raise the service of process issue, as defendant did so ex parte.

Although defendant has provided substantial evidence in the record on appeal that he was not properly served, we shall not consider it because it was not presented to the trial court before or during the hearing, or in a properly filed motion for reconsideration.3 See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (declining to consider "factual data" that was not presented to the trial court). Although we may consider questions not raised below if they pertain to "matters of great public interest" or the court's jurisdiction, ibid., defendant's appeal implicates neither. Defendant lacks a meritorious defense to the summary action for possession. See Guttenberg Sav. & Loan Ass'n v. Rivera, 85 N.J. 617, 626-27 (1981) (mortgagee is entitled to possession upon default).4 Although he claims process was not properly served, the court's jurisdiction to deny the order to show cause is indisputable.

Affirmed.

1 The record does not include copies of these documents, but it does include the eviction complaint.

2 We note that Marci's appeal was dismissed on February 10, 2015.

3 In his letter to the court defendant presented his lack-of-service argument and documentation, but he did so to seek a stay pending appeal, not to seek reconsideration of the order on appeal.

4 The rule in Guttenberg was limited by a subsequent amendment to N.J.S.A. 2A:18-61.3, but only with respect to residential tenants. See Chase Manhattan Bank v. Josephson, 135 N.J. 209 (1994).