401 53rd STREET L.L.C v. JUANA CABRERA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4076-09T2

401 53rd STREET, L.L.C.,

Plaintiff-Appellant,

v.

JUANA CABRERA,

Defendant-Respondent.

________________________________________________________________

March 9, 2011

Argued December 7, 2010 - Decided

Before Judges Payne, Baxter and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Hudson County, Docket No. LT-018463-09.

Tracey Goldstein argued the cause for appellant (Feinstein, Raiss, Kelin & Booker, L.L.C. and Jeffrey Unger, attorneys; Ms. Goldstein, on the briefs).

Stephen L. Klein argued the cause for respondent.

PER CURIAM

401 53rd Street, L.L.C. appeals from a trial court decision dismissing its complaint seeking to evict defendant for gross negligence and damage to property. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Plaintiff served defendant on November 11, 2009, with a three-day notice to quit, pursuant to the requirements of the Anti-Eviction Act, N.J.S.A. 2A:18-61.1(c), based on two separate incidents. Plaintiff alleged in its notice to quit that on August 15, 2009,

you defaced with black marker the front door and frame of your apartment, and scribbled that the exterminator murdered [your] dog. This incident followed a phone call to the office alleging that the exterminator murdered your dog [] by using certain chemicals to treat [your] apartment for roaches.

The notice to quit also alleged that:

On or about October 19, 2009, at approximately 8:30 p.m., you turned on the hot water in the kitchen sink, left the room, and allowed the water to overflow and flood your apartment. The flooding penetrated the ceiling below, causing damage to the ceiling (including causing sections of it to collapse) [and] damage to [the downstairs tenant's] kitchen cabinets, countertop and walls.

N.J.S.A. 2A:18-61.1. provides that:

No lessee or tenant . . . may be removed by the Superior Court from any house, building, mobile home or land in a mobile home park or tenement leased for residential purposes. . . except upon establishment of one of the following grounds as good cause:

. . . .

c. The person has willfully or by reason of gross negligence caused or allowed destruction, damage or injury to the premises.

Defendant testified at trial that, although she informed plaintiff, who purchased the building in June 2009, that she was allergic to bug spray, the exterminator sprayed it on the bottom of her apartment door every month. She believed the spray killed her dog, Rusty, and was concerned that her other dog would also be affected by the spray. She tried to get in touch with her new landlord, who did not return her calls.

Defendant testified that in frustration she wrote in washable black marker on the outside of her front door: "Murderer, murderer, murderer. You killed my dog, Rusty, with roach spray. Rusty, rest in peace." Defendant said when her son saw the markings that same day, he expressed his concerns about ramifications from plaintiff. She washed off the message, which left the door looking dirty. To make the door look clean, she and her son repainted the door with paint supplied by the superintendent of the building. Although the superintendent testified that the tenant used black paint, not washable marker, which "still showed" after the repainting, he admitted on cross-examination that no damage to the door was visible in the landlord's photographs of the repainted door, and said, "but if I scrape this door a little bit, I can . . . show you black paint behind it."

With regard to the water overflow, defendant testified that when she finished washing dishes she used both hands to close the faucet. She said she thought she closed the hot water all the way. She left the stopper in the sink. Defendant testified that she heard the phone ringing so she went to the bedroom to answer the phone call. She said her daughter was calling to say that defendant's granddaughter was taken to the hospital, bleeding, with an injury to the lip. Defendant said she was on the phone for "a good half hour" and heard no water running. She testified she was shocked to find out about the overflow and apologized to the superintendent when he knocked on the door. Although the superintendent claimed he could hear the water running onto the floor as he knocked on the door, defendant claimed that the hot water was mostly shut off.

On appeal, plaintiff argues that the trial court made incorrect factual findings, that either of the tenant's transgressions were grounds for eviction, and that the court improperly considered the tenant's argument that plaintiff sought to evict defendant so that it could increase the rent to a new tenant.

The trial court found that "there was no real, dispositive evidence that defendant marked the door itself" rather than a piece of paper attached to the door. We agree with plaintiff that, in fact, defendant admitted to writing directly on the door. We agree, however, with the court's ultimate conclusion that plaintiff failed to demonstrate that the door was willfully damaged. A tenant's willful damage to property is not usually curable. Muros v. Morales, 268 N.J. Super. 590, 596-97 (App. Div. 1993) (holding that where the tenant drilled holes in the floor to pass electric wires to her landlord's basement outlets to steal electricity the damage was not insubstantial or trivial and thus not curable). If the damage is insubstantial or trivial, however, eviction may be barred if a tenant satisfactorily and promptly repairs the damage before plaintiff files the dispossess action. See Ivy Hill Park Section III v. Smirnova, 362 N.J. Super. 421, 427-28 (Law Div. 2003) (holding that the temporary creation of a noxious odor does not amount to damage warranting eviction).

The writing on the door was indeed temporary and trivial, even if it was painted as alleged by the superintendent. The unfortunate message was an expression of grief and frustration that was aimed at the exterminator, and not plaintiff, as acknowledged by plaintiff in the notice to quit. The message, written directly on the door, remained for less than one day. The landlord did not move to evict the tenant until after the water incident, which occurred more than two months after the tenant wrote on the door.

The water overflow is not alleged to have been willful, but rather to have constituted gross negligence. As the trial court, relying on Ivy Hill, observed, "[g]ross negligence is conduct that comes somewhere between simple negligence and the intentional infliction of harm, or, willful misconduct." Id. at 425 (internal quotation marks and citation omitted) (finding that leaving the stove on when so tired as to fall asleep constitutes gross negligence). The court found that leaving the water running to take a phone call did not constitute gross negligence.

Defendant's testimony that she thought she had turned the water off completely when she went to the other room to answer the phone was not refuted. The call concerning her injured granddaughter distracted her so she did not hear water running, nor did she initially hear the superintendent knocking. She was shocked and apologetic when she saw the water on the floor. The water passed through to the apartment below, taking down part of the drop ceiling, buckling the linoleum and damaging the kitchen cabinets, wall and countertop. Defendant was negligent in not completely turning off the water when the stopper was in the sink. We agree with the trial court that this negligence did not rise to the level of gross negligence.

The landlord finally raises the issue of the court's finding that it was "not comfortable" finding for plaintiff, given that defendant had lived in the apartment for more than thirty years and the possible "factual subtext" that plaintiff was seeking to evict defendant in order to renovate the apartment and raise the rent.

We agree with plaintiff that the court's discomfort with plaintiff's possible motivations for the action to dispossess is not relevant. Plaintiff, however, is required to prove its cause of action, which it failed to do here.

A