103-105 EAST STATE STREET ASSOCIATION v. RONALD GRIFFIN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0636-05T10636-05T1

103-105 EAST STATE STREET ASSOCIATION,

Plaintiff-Respondent,

v.

RONALD GRIFFIN,

Defendant-Appellant.

_________________________________________

 

Submitted February 7, 2007 - Decided March 27, 2007

Before Judges A. A. Rodr guez and Lyons.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. LT-1395-05 and LT-1396-05.

Ronald Griffin, appellant pro se.

Respondent, 103-105 East State Street Association, did not file a brief.

PER CURIAM

In this landlord-tenant action, defendant, Ronald Griffin ("Griffin"), appeals pro se from the trial court's order denying a stay of a summary dispossess order with respect to premises at 103-105 East State Street, Trenton. Based upon a review of Griffin's brief, it is clear, however, that he is also appealing the underlying summary dispossess order. We affirm.

The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. Plaintiff, 103-105 East State Street Association ("landlord"), is the owner of two parcels, one being 103 and the other being 105 East State Street, Trenton. On October 12, 1998, landlord leased 105 East State Street to 105 East State Street Restaurant, Inc. On November 8, 2004, 105 East State Street Restaurant, Inc. assigned its interest as a tenant to Griffin. Landlord consented to that assignment.

On April 11, 2000, landlord leased 103 East State Street to Global Currency Services, Inc. In January 2002, Global Currency Services, Inc. sub-let the property to H & H Enterprises, Inc., and on November 8, 2004, Global Currency Services, Inc. assigned its interests as tenant to Griffin with landlord's consent.

On or about March 4, 2005, landlord filed a summary dispossess action for non-payment of rent against Griffin with respect to 103 and 105 East State Street. Landlord claimed rent had not been paid for the months of December 2004 through February 2005. At some point, Griffin filed for bankruptcy protection. On May 24, 2005, the automatic stay in the Bankruptcy Court was lifted. On July 1, 2005, Griffin appeared in court and raised a habitability defense. The court afforded the tenant the opportunity to pay into court the back rent and provided, that upon payment, there would be a habitability hearing. The back rent was not paid into court and the court, therefore, entered an order for possession. The tenant was then locked out pursuant to an order of removal.

On August 3, 2005, Griffin requested the trial court stay the summary dispossess order. That was denied and on October 12, 2005, Griffin filed a notice of appeal. On November 9, 2005, our court denied a motion for stay, and on December 1, 2006, we barred landlord from filing a brief because a timely response to the appeal was not filed.

Griffin claims that he has paid over $64,000 in 2002 toward rent on these premises. Griffin further alleges that landlord frustrated his ability to move into the property and operate and that landlord violated a number of provisions in the lease. We will address Griffin's appeal of the underlying summary dispossess order first and then the denial of a stay.

A summary dispossess action is a special action created by statute, N.J.S.A. 2A:18-51 to 61.59, to give a landlord a quick remedy for possession. Vineland Shopping Ctr. v. DeMarco, 35 N.J. 459 (1961). In order to prevail in a summary dispossess action, landlord must prove the following: (1) that a landlord-tenant relationship exists; (2) that service of process has been appropriately made; (3) that the rent claimed and costs have not been paid, in cases where the grounds for dispossession is the non-payment of rent; (4) that all notices and demands for possession have been properly given and served upon the tenant; and (5) that defendant is still in possession of the premises. Marini v. Ireland, 56 N.J. 130, 137-138 (1970); see also 23A New Jersey Practice, Landlord and Tenant Law 44.91, at 308 (Raymond I. Korona) (5th ed. 2001).

It is often the practice that when a defendant-tenant raises, at trial, an alleged partial or complete lack of habitability as a defense in a summary dispossess proceeding for non-payment of rent, the court will adjourn the case and require defendant-tenant to deposit with the Clerk of the Court a sum of money equal to the amount of rent alleged in the complaint as being unpaid. Marini, supra, 56 N.J. at 147; Edmond v. Waters, 149 N.J. Super. 579, 580-81 (App. Div. 1977); Korona, supra, 44.91, at 308.

In this case, the trial court afforded Griffin the opportunity to pursue his habitability claim upon the deposit with the court clerk of the rent in dispute. However, Griffin did not timely deposit those funds, and the court, therefore, entered judgment for possession on the proofs submitted to it. Our court gives due regard to the findings of a trial judge sitting without a jury. Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484 (1974). There is nothing in the record advanced before us that questions the trial court's factual findings and legal conclusions. Hence, we find no error in the order for summary dispossession.

Landlord appealed the trial judge's order denying a stay of the summary dispossess order. R. 2:9-5(a) provides in pertinent part, that an order in a civil action adjudicating rights of parties in respect of property, which is the subject of appeal, "shall be stayed only upon the posting of a bond . . . or a cash deposit . . . unless the court otherwise orders on good cause shown." No bond or cash deposit was proffered by Griffin. Moreover, when Griffin was afforded the opportunity to deposit the back rent owed in court to pursue the habitability claim, he failed to do so.

Much of Griffin's brief is devoted to his claim that he paid landlord approximately $64,000 in or about 2002 in connection with this property and that landlord's actions or inactions caused him damage. R. 6:3-4 prohibits a defendant in a summary action between a landlord and tenant from filing a counter-claim or a third-party complaint. Griffin's issue concerning landlord's alleged wrongful conduct toward him, therefore, could not appropriately have been raised in the summary dispossess action. However, we note that matters determined in a summary dispossess action brought by a landlord against a tenant for non-payment of rent are not legally conclusive in a subsequent action between the landlord and tenant, even over the same subject matter. See C.F. Seabrook Co. v. Peck, 174 N.J. Super. 577, 590 (App. Div. 1980). Therefore, Griffin may have potential claims against landlord which may be raised in a separate action subject, of course, to whatever defenses may be applicable, including the statute of limitations.

On the issues before this court, however, Griffin's appeal is without merit and the orders of the trial court are, therefore, affirmed.

 

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A-0636-05T1

March 27, 2007