JOSE GARCIA et al. v. GEORGE MADIAS et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4741-04T14741-04T1

JOSE GARCIA and

AMERICA GARCIA,

Plaintiffs-Respondents,

v.

GEORGE MADIAS and

EUGENIA MADIAS,

Defendants-Appellants.

________________________________________________________________

 

Argued March 29, 2006 - Decided June 30, 2006

Before Judges Parker and Grall.

On appeal from the Superior Court of New

Jersey, Law Division, Hudson County,

Docket No. L-3008-04.

George N. Pappas argued the cause for

appellants.

Cathy C. Cardillo argued the cause for

respondents.

PER CURIAM

Defendants George and Eugenia Madias appeal from an order entered on April 1, 2005 granting plaintiffs' motion to voluntarily dismiss the complaint with prejudice. This case arises out of plaintiffs' application to the Hoboken Rent Control Administrator (Administrator) to recalculate rent and surcharges due to defendants by plaintiffs.

Plaintiffs have been tenants in a Hoboken apartment owned by defendants for more than twenty years. Defendants have owned the property for more than twenty-five years, and it is currently managed by Total Property Concepts (TPC).

In 1988, TPC's predecessor applied to the Administrator for a tax surcharge to be assessed against each tenant in the building. The application was granted and plaintiffs' monthly share of the surcharge was $119. In the Spring of 2003, plaintiffs applied to the Administrator for a recalculation of the surcharge without defendants' or TPC's knowledge.

Defendants claim that the Administrator's file does not contain a written statement by plaintiffs supporting their request or detailing the rent paid during the thirteen-year period in question. Nevertheless, the Administrator reviewed plaintiffs' rent and surcharge from 1985 to April 2003 and found that no tax surcharge renewal applications were filed by defendants after the original application in 1988. After recalculating the rent and surcharge, the Administrator found that plaintiffs were entitled to a refund of $19,040. In June 2004, plaintiffs filed a complaint in the Law Division against defendants for return of the overpaid surcharges.

After an unsuccessful attempt to mediate a resolution, plaintiffs moved to voluntarily dismiss the complaint with prejudice. Defendants opposed the motion. On April 4, 2005, the trial judge rendered the following decision on the record:

This is the matter of Garcia versus Madias, L-3008-04, motion to dismiss with prejudice.

Plaintiff[s] [have] filed this present motion to voluntarily dismiss this complaint with prejudice. Defendant[s] oppose[] the motion. This complaint was filed against the defendant[s] seeking excess rent monies paid that were due and owing to them under the Hoboken rent control ordinance.

Instead of taking a rental credit, plaintiffs filed the complaint as they were trying to get into the Hoboken public senior housing system. Since plaintiff[s] [are] no longer seeking assisted housing and are willing to take the rental credit as to their current housing, they seek to dismiss this complaint with prejudice.

Plaintiff[s] argue[] that there is nothing to bar a dismissal here as defendant[s] did not file any counterclaims and defendants' only defenses against the excess rents due are barred.

The court will grant the plaintiffs' motion to dismiss with prejudice under Rule 4:37-1B[.] [E]xcept as provided by paragraph A, an action shall be dismissed at the plaintiff's instance only by leave of court and upon such terms and conditions as the court deems appropriate.

If a counterclaim has been filed and served by a defendant prior to being served with plaintiff's motion to dismiss, the action shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for independent adjudication by the court.

Unless otherwise specified in the order, a dismissal under this provision is without prejudice.

Defendants' argument that they will have to bring a summary dispossession proceeding is unconvincing. They have not filed a cross claim for possession and have not shown that they are entitled to possession at this time.

Further, plaintiff[s] [are] entitled to a rental credit for a certain amount and it is not clear how defendant[s] would institute dispossess proceedings for non payment of rent when defendant[s] would be applying the credit owed to plaintiffs' rent.

Defendant[s] would be able to bring dispossession proceedings for any other rent owed in the future.

This court finds that there is no current bar to the plaintiff[s] dismissing their complaint with prejudice under 4:37-1(b) and therefore will grant the request. The complaint will be dismissed with prejudice.

[Emphasis added.]

Defendants appealed and now argue that (1) the trial court erred in dismissing the complaint over defendants' objection; and (2) we should take original jurisdiction and determine the amount of any refund due to plaintiffs. In essence, defendants argue:

The trial court's dismissal of [plaintiffs'] complaint against them has deprived them of their only avenue left to challenge the flawed determination of the Administrator. [Defendants] had no notice of the [plaintiffs'] rent calculation application and determination for almost a year after it was made. By that time any right to contest it by appeal to the rent control board or the trial court had long since expired. The only avenue left to [defendants] was [plaintiffs'] suit. The trial court's dismissal of the suit without competent evidence of [plaintiffs'] contentions or a hearing despite [defendants'] request therefore deprived [defendants] of basic due process and should be reversed.

We have carefully considered the record before us in light of defendants' arguments and the applicable law. We find insufficient merit in defendants' arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E), and we affirm substantially for the reasons stated by Judge Velazquez in his oral decision on April 4, 2005. R. 2:11-3(e)(1)(A). Nevertheless, we add the following comments.

Both parties have attempted to supplement the record without seeking leave to do so pursuant to R. 2:5-5. Consequently, we will not consider any documents not presented to the trial court.

Defendants have presented no basis for reversing the dismissal. They have made no counterclaim, nor have they presented any evidence whatsoever to demonstrate that the surcharge was miscalculated. Defendants' counsel acknowledged to us at oral argument that defendants have made no attempt to reopen the matter before the Administrator to recalculate the amount due. Consequently, defendants do not know whether the Administrator would be inclined to recalculate the surcharge, given plaintiffs' alleged failure to advise defendants of the recalculation until after the time for appeal had run. Moreover, it is clear from the record that defendants were not entitled to collect the surcharge for more than twelve months after the Administrator granted their application unless they renewed it. Defendants have collected the surcharge since January 1, 1989, without renewing the application.

We reject defendants' argument that we should take original jurisdiction to recalculate the surcharge. The record before us is wholly insufficient for us to consider whether there was an error in the Administrator's calculation of the surcharge or what amount it should be if, in fact, there was an error. Our decision here focuses solely on the April 1, 2005 order entered by the trial court granting plaintiffs' motion to dismiss the complaint.

 
Affirmed.

(continued)

(continued)

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A-4741-04T1

June 30, 2006