CCM COMPANY, L.P v. THOMAS TSELENTAKIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0937-10T2

CCM COMPANY, L.P.,

Plaintiff-Appellant,

v.

THOMAS TSELENTAKIS,

Defendant-Respondent.

_________________________________________________

June 27, 2011

 

Argued May 24, 2011 - Decided

 

Before Judges Payne and Baxter.

 

On appeal from Superior Court of New Jersey,

Law Division, Special Civil Part, Bergen

County, Docket No. LT-92-10.

 

Michael J. Forino argued the cause for

appellant (Feinstein, Raiss, Kelin & Booker,

L.L.C., attorneys; Mr. Forino, on the brief).

 

Mark W. Welsh argued the cause for

respondent (Northeast New Jersey Legal

Services, attorneys; Mr. Welsh, on the brief).

PER CURIAM

Plaintiff CCM Company, the owner of a 225-unit HUD-subsidized apartment building housing qualified individuals who are disabled or over the age of sixty-two, appeals an order vacating a judgment of possession entered in CCM's favor and against its tenant, defendant Thomas Tselentakis, upon evidence that Tselentakis had assaulted Salvatore Escobar, a member of CCM's custodial staff, causing physical injury. On appeal, CCM makes the following arguments:

POINT I

 

THE TRIAL COURT DENIED THE LANDLORD ITS RIGHT TO IMMEDIATE RECOVERY OF POSSESSION OF THE PREMISES BASED ON THE TENANT'S ASSAULT OF THE LANDLORD'S EMPLOYEE, AN INCURABLE GROUND OF EVICTION.

A. Under the Plain Language of the Anti-Eviction Act, The Tenant's Single Assault of Mr. Escobar Called For the Landlord's Expeditious Recovery of the Premises Through the Summary Dispossess Procedure.

 

B. The Tenant's Assault of Mr. Escobar Constituted an Incurable Basis of Eviction.

 

POINT II

 

THE TRIAL COURT GRANTED THE TENANT A HARDSHIP STAY WITHOUT ANY LEGAL BASIS AND IMPROPERLY CREATED A PROBATIONARY PERIOD FOR THE TENANT TO CURE HIS CONDUCT.

 

POINT III

 

THE CONSENT JUDGMENT SHOULD HAVE BEEN ENFORCED PURSUANT TO NEW JERSEY LAW AND PUBLIC POLICY.

 

POINT IV

 

RULE 4:50-1 PROVIDED ABSOLUTELY NO BASIS FOR VACATING THE JUDGMENT OF POSSESSION.

 

A. The Arguments Asserted by the Tenant Afford the Tenant No Protection Under Rule 4:50-1.

 

1. The Tenant's Occupancy in Subsidized Housing Constitutes No Basis for Post-Judgment Relief.

 

2. The Tenant's Mental Condition Constitutes No Basis for Post-Judgment Relief.

 

B. The Equities Weigh Heavily in Favor of the Landlord.

 

C. The Landlord's Statutory Right to Possession Supersedes the Tenant's Rights Under Rule 4:50-1.

 

We reverse.

I.

Tselentakis has been a resident of CCM's apartment building, Malcolm Towers, since April 2001. He is disabled as the result of unstated conditions and uses crutches. Tselentakis receives Social Security disability benefits.

At approximately 4:00 p.m. on November 6, 2009, Tselentakis, who is forty-nine years of age and at least six feet, two inches in height, assaulted Salvatore Escobar by striking him in the upper chest and arm. His injuries were examined, and he was diagnosed as suffering a contusion to the right upper chest wall. A CT-scan was ordered to rule out air in the mediastinum. Follow-up visits occurred on November 14, 2009 and November 16, 2009, and the CT-scan was performed on November 18, 2009.

Additionally, on November 6, Tselentakis accosted the daughter-in-law of a tenant whose apartment was on the same floor as his while she was leaving the apartment's garbage room. At that time, Tselentakis yelled at her, attempted to push her against the wall with a crutch, and swung a crutch at her face, barely missing contact. As the result of these incidents, the police were called, and defendant was taken to Bergen Regional Medical Center, where he remained under psychiatric observation until his discharge on November 9, 2009. The discharge summary indicated that Tselentakis was not suffering from a psychosis.

On December 17, 2009, CCM filed a summary dispossess action claiming a right to possession as the result of the assault on Escobar. The matter was heard on January 19, 2010. Both parties were represented by counsel. The proceeding commenced with an off-the-record conference in chambers. As defense counsel describes that conference,

During the conference in the instant case, the defendant advised the court that it did not have a defense to the acts set out in the complaint. At the same time, the defendant advised the court that once a judgment was entered he intended to file a motion to vacate the judgment arguing that it would be inequitable to evict a disabled person from a federally subsidized apartment. Based on that, the trial court advised the parties that it would enter a judgment but wanted to have the defendant evaluated before ruling on the motion.

 

Once on the record, the judge elicited through unsworn testimony from Tselentakis's mother evidence that Tselentakis had been discharged from Bergen Regional without medication or a plan for follow-up treatment. However, the mother stated that Tselentakis had been followed for the past eleven or twelve years by psychiatrists and neurologists at the Columbia University Medical Center, and that he had an appointment there in a "few months." The mother stated that Tselentakis previously had been treated with Neurontin and Baclofen.1 However, those drugs had been stopped, and at present, Tselentakis only took Flomax for incontinence.

The only other testimony in the matter was provided by Tselentakis, who admitted that "I took the law in my hand [sic]" and that "I thought I was doing some kind of justice immediately."

During the proceeding, defense counsel was instructed to have Tselentakis evaluated at Bergen Regional within one week, so that the judge could "take a look at this situation again next week." After noting that no further incidents had occurred since November 6, the judge instructed Tselentakis, "whatever good behavior you've been on, stay on it."

Although no formal application under the Tenant Hardship Act, N.J.S.A. 2A:10-6 to -10.9, for a hardship stay pursuant to N.J.S.A. 2A:42-10.6 was made and no plenary hearing on the issue of the need for such a stay took place, the judge entered such a stay on a pre-printed "hardship stay order," effective until April 30, 2010, and he scheduled a "hardship review" on April 26, 2010.2 Entry of a judgment of possession and the terms of such a judgment were unaddressed on the record, although the parties and the judge proceeded throughout as if such a judgment had been entered.

A further hearing occurred on April 26, 2010, in the presence of Tselentakis's mother and brother. However, Tselentakis was not present as the result of illness. He did not appear at any of the further proceedings in the matter, despite the judge's direction that he do so. At the hearing, defense counsel renewed his informal application for dismissal of the judgment of possession, noting that the "good news" was that Tselentakis had not "done anything . . . misbehaving." Counsel for CCM argued that no statutory basis to vacate the judgment had been demonstrated and that eviction was mandated under the Anti-Eviction Act, no showing had been made of the need for a hardship stay as the result of the unavailability of alternative accommodations, and no testimony or evidence existed of an effort by Tselentakis to relocate. After assuring himself that Tselentakis had not misbehaved and concluding without evidence that he was taking "his medication,"3 the judge extended the hardship stay until June 30 and scheduled a further hardship review hearing for June 24. No medical evaluation of Tselentakis had taken place.

On June 24, 2010, defense counsel renewed his application to vacate the judgment of eviction. However, the judge deferred the application. While suggesting that Tselentakis's aggressive conduct may have been an aberration, the judge ordered his evaluation by Bergen Regional by July 16, 2010. Believing that the six-month period for a hardship stay permitted by N.J.S.A. 2A:42-10.6 had passed or was about to pass, the judge, exercising authority that he believed he possessed as the result of an order by two members of this court on an emergent appeal in the matter of Bal Bay Realty, Ltd. v. Meaney, No. A-3120-08; M-3626-08 (App. Div. February 24, 2009), utilized Rule 4:50-1 to vacate the prior hardship stay and to impose a new one, again without any hearing or evidentiary basis to conclude such a stay was required in the circumstances.4

Further brief hearings occurred on July 26, 2010 and August 13, 2010, at which times it was disclosed that Tselentakis's condition still had not been reevaluated. They were followed by a final hearing on September 20, 2010. Although no examination of Tselentakis had taken place, over the objection of CCM's counsel, the judge considered two hearsay physician's reports, stating without citation to any authority that: "I'm allowed to accept [them] in Tenancy Court."5 Neither report is contained in the record on appeal. However, it appears that one was issued on June 5, 2010 by Dr. Emmanuel Lambrakis and the other by Dr. Adrienne Boire.6 According to the judge, both concluded that Tselentakis "was no longer a threat; he's on his medications." Further, the judge observed, without evidentiary basis: "His mother was here. She's been monitoring him."

After observing that "it's been almost a year now" without any further incidents, the judge determined to vacate the judgment of possession, concluding that the equities favored permitting Tselentakis to remain in the government-subsidized housing created to accommodate disabled persons such as he, particularly in light of the lack of repetition of the assaultive conduct. In that regard, the judge relied on Housing Authority of Morristown v. Little, 135 N.J. 274 (1994), a case in which a judgment of possession based on non-payment of rent was vacated following entry of a hardship stay, during which the rent had been paid in full.

CCM's counsel objected, and requested that the judge hear testimony on CCM's behalf, noting that "at no point did the court hear testimony from our clients or any of their witnesses." Although the judge observed that he did not think testimony was "necessary," and that the fears expressed by CCM's employees and tenants were "a bit overstated," the judge agreed to conduct a hearing at 2:00 o'clock that afternoon.

At the 2:00 o'clock proceeding, CCM's counsel offered as witnesses the victim of Tselentakis's assault, Escobar, and Tony Garcia, the property manager. Counsel proffered that Escobar could testify as to the effects of his injuries and the month-long impact of the injuries on his work performance, as well as his fear of working on the sixth floor where Tselentakis resided. Counsel stated:

Specifically, he's afraid to go to Mr. Tselentakis's unit. He's afraid to go to the sixth floor. Other staff members are also afraid to do work at the premises as a result of the incident. As a result, management has had to change staffing; they've had to send people in pairs to the . . . apartment instead of the usual

 

The judge responded to counsel's account of Escobar's fears by observing:

And so so the person is going to come up here, now and say, I'm afraid to go up by this gentleman's house, again? Of course, and I don't need testimony to that. Anybody would have that fear.

 

Turning to the incident with the tenant's daughter-in-law, the judge stated:

If somebody swung at me with a crutch, I would be have some degree of fear after that. I'm not denying it. I I think we can take, as a given that's why we don't need the testimony. We can take as a "given" what you what your what your proffer has put before me.

 

The judge then concluded:

So in weighing the equities, I'll dismiss the case; let him stay.

 

CCM has appealed.

II.

 

Our review of the record in this case satisfies us of the judge's laudable concern for the welfare of Tselentakis and of his extended effort to achieve an equitable result. However, we do not find the means employed to have been proper, and are therefore constrained to reverse.

We agree with CCM that, in contrast to the situation presented in Little, involving non-payment of rent, an assault constitutes a non-curable basis for eviction. The Anti-Eviction Act, N.J.S.A. 2A:18-61.1 to -61.12, permits the removal of a person found, "by a preponderance of the evidence, liable in a civil action . . . for an offense under . . . N.J.S.2C:12-1 or N.J.S.2C:12-3 involving assault or terroristic threats against the landlord, a member of the landlord's family or an employee of the landlord . . . ." N.J.S.A. 2A:18-61.1p. In this case, defendant admitted to having committed an assault. Significantly, only three day's notice is required prior to institution of an action for possession in a case involving assault, N.J.S.A. 2A:18-61.2a, whereas one month's notice is required when the action for possession is based on non-payment of rent. N.J.S.A. 2A:18-61.2b. Further, non-payment of rent can be cured prior to the entry of judgment, N.J.S.A. 2A:18-55 and 2A:42-9, whereas no comparable provision permits a "cure" in the case of an assault.

As we stated in Muros v. Morales, 268 N.J. Super. 590 (App. Div. 1993) when contrasting curable and non-curable causes for eviction:

There are other good-cause grounds for eviction which are not curable. They involve conduct which the landlord need not warn the tenant to cease, and which need not continue after warning. These grounds are (1) willfully or by reason of gross negligence causing or allowing destruction, damage or injury to the premises, N.J.S.A. 2A:18-61.1c; and (2) committing assaultive or threatening behavior toward the landlord, his family or employees, or (3) using, possessing, manufacturing, dispensing or distributing CDS. N.J.S.A. 2A:18-61.1n, o and p.

 

The law does not require a warning to cease such behavior because it is so clearly improper and antithetical to the landlord-tenant relationship, and because repetition is not an element of the impropriety of the behavior. For the same reasons, cessation of such behavior does not bar eviction.

. . . It would be absurd to rule that a tenant who knocks the landlord to the ground or threatens his life may not be evicted

 

 

unless he does it again after receiving a three-day notice under N.J.S.A. 2A:18-61.2a.

 

[Id. at 596 (footnote omitted).]

 

We therefore find that the judge's grant of a hardship stay in this case was improper, and his reliance on Little was mistaken. As we have stated previously, Little involved non-payment of rent, which is curable after commencement of a summary dispossess action, Muros, supra, 268 N.J. Super. at 595, and even after entry of a judgment of possession accompanied by a hardship stay. Little, supra, 135 N.J. at 289. In contrast, in the present circumstances where repetition of conduct is not required and "cure" cannot take place, eviction was warranted. See Housing Auth. of Franklin v. Mayo, 390 N.J. Super. 425, 433 (App. Div. 2007) (contrasting nonpayment of rent with causes for eviction that cannot be cured). "Violence . . . is per se a destruction of peaceful residence particularly in an apartment setting and requires no evidence beyond proof of the violence itself to establish a ground for eviction." Housing Auth. of Newark v. Jones, 204 N.J. Super. 600, 604 (App. Div. 1985).

III.

Further, even if we were to find that a hardship stay were available to Tselentakis in this case, it was not properly entered. In this regard, we note that the record contains no evidence that alternative housing was unavailable to Tselentakis, including residing with either his mother or his brother, both of whom appeared in court on Tselentakis's behalf. Additionally, there was no evidence that Tselentakis sought such housing or that his relatives conducted a search on his behalf.

Moreover, the hardship stay entered in the matter was improperly extended for a period greater than six months, despite statutory language providing that "in no case shall such judge stay the issuance of any such warrant or writ for possession for a longer period than 6 months after the date of entry of the judgment of possession." N.J.S.A. 2A:42-10.6. In this case, the stay extended for an impermissible eight months. Housing Auth. of Newark v. West, 69 N.J. 293, 301 (1976). Rule 4:50-1 cannot properly be used to extend this statutory period, and we have never authorized its use in this context.

We further find that Rule 4:50-1 was improperly used as a basis for vacating the judgment of eviction in this matter. "Courts should use Rule 4:50-1 sparingly, in exceptional situations; the Rule is designed to provide relief from judgments in situations in which, were it not applied, a grave injustice would occur. Little, supra, 135 N.J. at 289. In the present case, the proofs presented are insufficient to warrant the relief awarded.

Because there never was an evidentiary hearing in the matter and because Tselentakis was never medically examined for purposes of the litigation, there is no competent evidence as to the mental condition, if any, from which he suffered. There was no competent evidence, despite the judge's assumptions to the contrary, that the unknown condition was being treated successfully with medications, and indeed, the only evidence on that matter establishes that defendant was on no medication with the exception of Flomax for urinary incontinence. Additionally, there is no evidence that monitoring of Tselentakis's medications was being performed by his mother, as the judge frequently assumed. She certainly never stated such to be the case, but rather, elided the issue when asked. Further, no competent medical evidence was presented that defendant's unknown condition had abated or was being successfully treated.

We also find troubling the judge's disregard of the concerns expressed by the landlord and its employees regarding the possibility of the recurrence of assaultive conduct on Tselentakis's part. In this regard, we concur with the observation of Judge Fast in Stuyvesant Assocs. v. Doe, 221 N.J. Super. 340 (Law Div. 1987), a case in which a schizophrenic tenant caused property damage, that courts "must consider the potential liability of the landlord to other tenants for the potential damage or injuries that might be suffered by those others if defendant once again becomes psychotic." Id. at 344. Noting that the Supreme Court, in Linebaugh v. Hyndman, 106 N.J. 556 (1987), had affirmed our conclusion that a landlord's responsibility to exercise reasonable care in maintaining common areas under his control encompassed a duty to prevent injury from vicious animals kept on the premises with the landlord's knowledge, Judge Fast properly observed:

This court submits that no less responsibility exists from permitting a continued tenancy with an acknowledged and demonstrated potential for allowing damage or injury by an individual. The landlord should not be subject to that potential liability, nor the other tenants to that risk.

 

[Id. at 346.]

 

Here, as well, such a potential existed, or at very least, had not been medically ruled out.

In summary, we find that the informal procedures adopted by the judge in this case disserved his fact-finding responsibilities and his duty to properly apply the law. While we in no way seek to impugn the judge's intention to achieve a fair, just and compassionate result, we cannot accept the methods utilized to achieve that result, and therefore reverse the order dismissing the judgment of eviction entered in this matter.

Reversed and remanded for further proceedings. Jurisdiction is not retained.

 

1 The nature of those drugs and the conditions for which they were prescribed was not stated.

2 The portions of the order relating to a motion and hearing were left blank by the judge.

3 The following equivocal exchange with Tselentakis's mother regarding medication took place:

 

Q . . . . Now, since he got out [of Bergen Regional], had he been taking his medication?

 

A Yes, he's he's had no problem.

4 The judge misconstrued the order entered in the emergent matter. The panel ordered only that Rule 4:50-1 be considered by the judge as offering potential grounds for vacating the judgment of eviction entered in the matter six months earlier. Order at 2-3. With respect to N.J.S.A. 2A:42-10.6, the panel concluded that "the statute only permits a warrant of removal to be stayed on the basis of hardship for up to six months after the date of the judgment for possession." Order at 2.

5

N.J.R.E. 101(a)(2) permits a relaxation of the rules of evidence in the Small Claims Section of the Special Civil Part. The Landlord-Tenant court is not part of the Small Claims Section.

6 A Dr. Emmanuel Lambrakis, whose office is located at the address specified in the record, is listed on the internet as practicing family and sports medicine. Dr. Boire is a resident in adult neurology at Columbia University and is in the class of 2012.