OAKWOOD TOWERS v. LEV PRIBYTKOV

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5417-08T1

OAKWOOD TOWERS,

Plaintiff-Respondent,

v.

LEV PRIBYTKOV,

Defendant-Appellant.

_____________________________________________

December 23, 2010

Argued July 13, 2010 - Decided

Before Judges R. B. Coleman and C. L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, Docket No. LT-12261-09.

Felipe Chavana argued the cause for appellant (Essex-Newark Legal Services Inc., attorneys; Mr. Chavana, Maria Castruita,
Rebecca Molnar and Sagrario Perez, on the brief).

Rosalie C. Scheckel argued the cause for respondent (Feinstein, Raiss, Kelin & Booker, LLC, attorneys; Ms. Scheckel, on the brief).

PER CURIAM

Defendant, Lev Pribytkov, appeals from a June 30, 2009 denial of an application seeking relief from a May 13, 2009 judgment for possession. We reverse.

Plaintiff, Oakwood Towers, is a federally subsidized senior housing complex located in the City of Orange. Defendant is a disabled septuagenarian who has been a tenant at Oakwood Towers since 2006. Defendant suffers from ailments including, among others, deafness, psoriasis, and skin allergies. He also has problems communicating effectively.

In September 2008, defendant believed his apartment was infested with bedbugs. Defendant contacted the onsite social services coordinator who, in turn, contacted the superintendent. The superintendent inspected the apartment but did not find any evidence of bedbugs. Defendant nevertheless continued to fear he had bedbugs and spoke with the plaintiff's property manager, through whom an appointment was made with an exterminator for December 3, 2008. However, on December 1, 2008, defendant sent a letter to the property manager indicating the appointment was not "feasible." That same day, the property manager sent a letter assuring defendant "the chemicals used are odorless and will not harm residents." That letter stated further that management would not under any circumstances replace any of defendant's furniture, and defendant was informed "[t]he only correspondence from [defendant] should be whether or not [he is] accepting treatment (extermination) that is the only expense [management] will cover." Defendant was warned any further correspondence debating the matter would be placed in defendant's file as proof of defendant's lack of cooperation.

Apparently concerned about the potential health effects of the pesticide, defendant contacted the Essex County Health Commission, which referred the complaint to the New Jersey Department of Environmental Protection (DEP). On January 6, 2009, a DEP inspector visited plaintiff's property and questions were raised whether violations of N.J.A.C. 7:30-9.12(c) existed.1 On January 14, 2009, plaintiff informed defendant by letter delivered by hand that an appointment had been made with the exterminator for January 16, 2009. That letter warned "[i]f you do not comply with allowing access for treatment we (Management) will be forced to commence with legal proceedings against you." Present on January 16, 2009 was the plaintiff's property manager, two exterminators and a DEP inspector. While there, the DEP inspector issued Field Notices of Violation to the exterminator company.

Thereafter, plaintiff sent defendant a Notice to Cease, dated January 27, 2009, citing defendant's failure to allow the exterminator access to his apartment as grounds for eviction. The notice stated that defendant had ten days to contact management and reschedule the date for extermination or defendant may be evicted. On February 11, 2009, plaintiff sent another letter, informing defendant that a February 18, 2009, appointment was scheduled with the exterminator. On the date of appointment, defendant was not home. Thus, he failed to give the exterminator access to his apartment, and the next day, plaintiff sent a Notice to Quit to defendant purporting to terminate his occupancy, effective March 31, 2009.

On April 6, 2009, plaintiff filed a Verified Complaint in the Special Civil Part, Essex County, seeking a judgment for possession based on defendant's alleged violation of the lease agreement and the landlord's rules and regulations. Defendant appeared for trial, pro se, on April 28, 2009. During the trial proceedings, there was a factual dispute as to whether defendant had received certain information required under N.J.A.C. 7:30-9.12(c). The matter was adjourned to allow defendant time to review the information about the pesticide used by the exterminator against bedbugs. On May 13, 2009, the hearing resumed. The trial court found defendant had violated the lease by denying the landlord and the landlord's representatives access into his apartment on January 16, 2009. Earlier the court had stated:

[The notice to] quit alleges that the defendant "refused to permit access to the exterminator." The real issue is access not the extermination itself. I cannot expect an exterminator to complete extermination without first inspecting in order to determine the nature and extent of the problem. That is, for example, roaches, rodents, bed bugs, . . . or other types of infestation. The allegation is that you denied access for the exterminator, and subject to whatever he may want to say it appears to me that the landlord is entitled to evict him based upon his failure to comply with the lease, and allow access. Whatever the exterminator may want to use is not the issue, because as I said the exterminator has to get in first.

Judgment for possession was entered for the plaintiff, and defendant was told he could be evicted after eight days.

On June 16, 2009, defendant made a pro se application for relief from the judgment. The court denied that application, but the landlord agreed to permit defendant to go back into the apartment until June 22, 2009. One June 25, 2009, defendant, now assisted by counsel, returned to court seeking, in the alternative, relief from the judgment under Rule 4:50-1 or an opportunity for a post-judgment cure of any breach of the lease. Although the matter was not concluded on that date, defendant was permitted to go back into the apartment until further order of the court. In the meantime, the matter was rescheduled for June 30, 2009. On that date, the trial court declined to vacate the judgment for possession or to recognize that defendant was entitled to an opportunity to cure. The court, nevertheless, granted a stay of eviction pending appeal. On July 8, 2009, defendant filed this appeal, and defendant raises the following points for our consideration:

POINT I: THE TRIAL COURT LACKED JURISDICTION TO ENTER JUDGMENT BECAUSE PLAINTIFF FAILED TO ESTABLISH GOOD CAUSE.

POINT II: THE TRIAL COURT LACKED JURISDICTION TO ENTER JUDGMENT FOR FAILURE TO ALLOW INSPECTION, A GROUND NOT PLEAD [SIC] IN PLAINTIFF'S NOTICES AND COMPLAINT.

POINT III: THE TRIAL COURT'S DENIAL OF AN OPPORTUNITY TO CURE CONSTITUTES A CLEAR ABUSE OF DISCRETION.

A decision under Rule 4:50-1 is left to the sound discretion of the trial court and should be left undisturbed if an abuse of discretion does not exist. Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994). The procedural posture of this case is similar to Hodgson v. Applegate, 31 N.J. 29 (1959). There, the plaintiff sought damages from an alleged breach of contract and fraudulent nondisclosure of lease terms. Id. at 32. After a jury verdict in favor of the plaintiff, defendants neither moved for a new trial nor appealed the judgment. Id. at 33. After switching counsel, defendants moved to set aside the judgment on five separate grounds under Rule 4:50-1. Seventeen days later, defendants amended the motion and alleged trial errors as grounds for vacation of the judgment. The trial court denied the motion and defendant appealed. Ibid. The appellate court panel unanimously found no abuse of discretion by the trial court in denying the motion. However, the majority of the panel nevertheless found it equitable, under the circumstances, to consider the defendants' application as an appeal from the original judgment. Ibid. The majority found reversible error in the trial record and reversed the judgment. Id. at 34.

The Supreme Court observed that trial errors by themselves do not justify reversal of the judgment under the predecessor to Rule 4:50-1(f). Id. at 40. The Court explained the proper course would have been to "perfect[] the appeal from the original judgment, and then to have sought a partial remand to the trial court for determination of the motion." Id. at 42. But the Court stressed the failure to do so should not weigh against the defendants in favor of an inequitable judgment. Ibid. The Court agreed with the appellate majority ruling that "[p]rocedural rules are not inviolate." Hodgson v. Applegate, 55 N.J. Super. 1, 24 (App. Div. 1959); Hodgson, supra, 31 N.J. at 43. "[T]he rule must be balanced against the salutary principle that justice must be done in every case." Camden Lime Co. v. Borek, 63 N.J. Super. 174, 183 (App. Div. 1960); Hodgson, supra, 31 N.J. at 43.

The scope of relief under Rule 4:50-1(f) should not be narrowly interpreted. Hodgson, supra, 33 N.J. at 41. Rule 4:50-1 allows a court to vacate a judgment when necessary to prevent a manifest denial of justice. Manning Eng'g, Inc. v. Hudson County Park Comm'n, 74 N.J. 113, 120 (1977). Courts have the authority to avoid an unjust result in any given case. Ibid.

Likewise in Little, the Court recognized "the Rule [Rule 4:50-1] is designed to provide relief from judgments in situations in which, were it not applied, a grave injustice would occur." Id. at 289. The Court in Little found it appropriate to use Rule 4:50-1 to respond to the Legislature's statutory goals of helping the homeless and also to avoid regulatory practices that hinder those statutory objectives. Id. at 293. The Court held, "pragmatic recognition that the State's homelessness-prevention policies would be disserved by the eviction of a tenant" was an appropriate use of Rule 4:50-1(f).2 Ibid.

At issue here is the Anti-Eviction Act, N.J.S.A. 2A:18-61.1 to 61.12, which requires statutory "good cause" as a jurisdictional prerequisite. Cmty. Realty Mgmt. v. Harris, 155 N.J. 212, 239 (1998). The plaintiff must plead and establish good cause by a preponderance of the evidence. Ibid. Here, plaintiff asserted denial of access as the jurisdictional basis for the action to evict. However, "the clear purpose and spirit of the Anti-Eviction Act [is] to ensure that evictions are based on 'reasonable grounds.'" Ibid. (quoting 447 Associates v. Miranda, 115 N.J. 522, 533 (1989)). The Legislature has expressed a strong public policy protecting tenants from improper evictions by requiring landlords to establish "good cause" before the court may assert jurisdiction to remove a tenant. Id. at 239-40. The need for this protection is even more crucial when the tenant facing eviction is unrepresented by counsel. Id. at 240.

The statute lists the specific good cause grounds for a tenant's eviction. N.J.S.A. 2A:18-61.1. Paragraph (d) of the act provides grounds when:

The person [tenant] has continued, after written notice to cease, to substantially violate or breach any of the landlord's rules and regulations governing said premises, provided such rules and regulations are reasonable and have been accepted in writing by the tenant or made a part of the lease at the beginning of the lease term.

The violation of the rules must be substantial, meaning a considerable or significant breach. Diaz v. Perez-Tamayo, 251 N.J. Super. 513, 515 (Law Div. 1991). Minor or trivial transgressions do not qualify as good cause to evict. Ibid. "The anti-eviction act is remedial legislation and liberally construed." 447 Associates, supra, 115 N.J. at 559. Here, the trial court found that, since the defendant failed to grant access to the exterminator and to plaintiff's property manager, the plaintiff was justified in evicting him. The record is devoid of any evidence of or discussion on the substantial nature of defendant's violations. Without deciding whether this is a clear abuse of discretion, we find the trial court's interpretation of applicable law failed to address the statutory requirement of a substantial violation and resulted in an inequitable outcome. Similarly unresolved, was the question of whether bedbugs actually existed in defendant's apartment and whether information about the pesticide and the exterminator was properly provided to the defendant. We find the record discloses that plaintiff initially was afforded access. After an initial assessment that there were no bedbugs in his apartment, defendant continued to complain to outside agencies without again affording access to the apartment for purposes of inspection and fumigation or extermination.

We recognize that for a variety of reasons, including deafness and communication problems, defendant appears to have been a difficult, even troublesome, tenant. He lodged a complaint about bedbugs and enlisted the involvement of various health boards and other agencies. However, notwithstanding defendant's technical violation of the plaintiff's rules and regulations, it cannot be said the Legislature intended that elderly tenants may be evicted because they are cantankerous and phobic about the use of pesticides within their living space. We hold as a matter of law that the denial of access under such circumstances is not a substantial violation warranting eviction. Given the facts of record, the failure to provide access on as many as three occasions over several months is at most a minor violation of the rules. Greater transgressions of the rules have been deemed insubstantial within the meaning of the statute. See Diaz, supra, 251 N.J. Super. at 515 (finding a tenant having children in excess of the occupancy limit insubstantial).

We note the plaintiff was not wholly unresponsive to the defendant's concerns. The record shows that the plaintiff attempted to placate the concerns of the defendant tenant over several months to no avail and that plaintiff allowed defendant back in the apartment after he had been locked out. However, defendant's actions and technical violations of the plaintiff's lease rules in this case did not justify his eviction under N.J.S.A. 2A:18-61.1(d). Consistent with the judiciary's responsibility to avoid an unjust result and avoid impediment of the Anti-Eviction Act's legislative purpose, we hold the application to vacate the judgment should have been granted. In light of this disposition, we find no occasion to discuss or to determine whether a tenant has or should have in all circumstances a post-judgment right to cure a breach.

R

1 N.J.A.C. 7:30-9.12(c) states: At multiple family residences, no commercial application of pesticides shall be made for the control of household or structural pests without the following provisions being carried out, and sufficient time given to take appropriate precautions, if needed, to minimize potential exposure to individuals, pets and non-target sites; except as delineated in (c)6 below: 1. The applicator or applicator business shall post a decal notice in each unit prior to the start of the application, as required in (c)2 below; such decal shall have the following specifications: i. The minimum size of the decal shall be 15 square inches; ii. The decal shall be legible from a distance of three feet; iii. The decal shall remain legible while the area is being treated and for at least 60 days afterward. The decal may be removed after 60 days if no further pesticide applications are projected; iv. The decal shall include the applicator or applicator business name and telephone number; v. The decal shall include the following statement: "As part of a good sanitation program, this facility may be treated with pesticides. See the manager or building administration for further information."; and vi. The decal shall conform to all applicable advertising requirements pursuant to N.J.A.C. 7:30-2.12.

2 On June 16, 2009, the trial court dismissed defendant's pro se application for relief, which cited Little, because defendant breached the lease by denying access and Little breached by non-payment of rent. The court did not address the public policy caveat espoused within the opinion.