ANDREW NEWMAN v. YOLANDA MARQUEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ANDREW NEWMAN,

Plaintiff-Appellant,

v.

YOLANDA MARQUEZ,

Defendant-Respondent.

_________________________________________________

December 30, 2013

Before Judges Messano and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Hudson County, Docket No. DC-019486-12.

Scott H. Pringle argued the cause for appellant (Northeast New Jersey Legal Services, Inc., attorneys; Mr. Pringles , of counsel and on the brief).

Respondent Yolanda Marquez has not filed a brief.

PER CURIAM

On November 7, 2012, plaintiff Andrew Newman filed a verified complaint in the Special Civil Part pursuant to the Forcible Entry and Detainer Act, N.J.S.A. 2A:39-1 to -8, alleging defendant Yolanda Marquez had illegally locked him out of premises she owned and in which he was a tenant. The judge entered an order to show cause with restraints returnable on November 14.

On the return date, plaintiff appeared without counsel; defendant appeared with counsel and a witness, who counsel identified as "the manager of the hotel." Under oath, plaintiff acknowledged that he was behind in the payment of his rent and claimed the superintendent forced him to leave. However, since the issuance of the order to show cause, he had been restored to the premises. The judge was prepared to adjourn the matter so defense counsel, just recently retained, could prepare.

However, counsel indicated a desire to resolve the case immediately and furnished the judge with a "certificate of registration from the Department of Community Affairs" indicating the property was registered as a hotel. Counsel argued that the property, therefore, was not subject to provisions of the Anti-Eviction Act, specifically N.J.S.A. 2A:18-61.1 (exempting "a hotel, motel or other guest house or part thereof rented to a transient guest or seasonal tenant[]" from the statute).

Plaintiff claimed that defendant had previously served him with a "notice to cease," implying he was a tenant for purposes of the Anti-Eviction Act. He also argued that defendant would routinely move him and other tenants to another apartment building she owned "every [ninety] days," thereby attempting to avoid the creation of a landlord-tenant relationship. Plaintiff testified that he had lived continuously at defendant's various properties for "multiple years."

The judge asked plaintiff if "[s]omething exists . . . in . . . law that says . . . because you have lived continuously on a property you have created a landlord-tenant relationship in a hotel?" Plaintiff answered in the affirmative, but, when asked by the judge for a citation, could furnish none. Ultimately, the judge dissolved the prior restraints, vacated the order to show cause and entered an order dismissing the complaint without prejudice, finding that N.J.S.A. 2A:18-61.1 did not apply. She invited plaintiff to seek reconsideration if he could "find that case law," and ordered plaintiff "to leave [the] premises immediately."

On December 4, 2012, now represented by counsel, plaintiff moved for reconsideration and sought transfer of the complaint to the Law Division. In his affidavit in support of the motion, plaintiff stated that he had lived at another property owned by defendant from December 2008 to April 2012, when a serious fire forced him and the other residents to leave the building. In April 2012, he moved to the present location. He further asserted that, with the exception of one six-month period, he had lived in either of these two buildings since January 2005.

Plaintiff claimed that all his personal property had been disposed of since being "forcibly evicted from [his] home at [defendant's] direction." He estimated the value of those belongings, and, noting the treble damages provision of N.J.S.A. 2A:39-8, asserted that "recovery in this matter will exceed the . . . monetary limit of the Special Civil Part."

Although the record does not include any brief, if indeed one was filed, plaintiff's notice of motion cited two cases, McNeill v. Estate of Lachman, 285 N.J. Super. 212 (App. Div. 1995), and Williams v. Alexander Hamilton Hotel, 249 N.J. Super. 481 (App. Div. 1991), upon which plaintiff relied, and which the judge had not previously considered. It is unclear whether defendant filed any opposition, but none appears in the appellate record and the order entered by the judge does not indicate the motion was opposed. There was apparently no oral argument requested.

On January 11, 2013, the judge entered an order denying the motion for reconsideration. Although she found it was timely, the judge concluded:

[T]he motion fails to conform to R. 4:49-2 because it does not state with specificity the basis upon which it is made, and Counsel fails to attach a copy of the order sought to be reconsidered. Counsel also fails to state how the court expressed it[s] decision based on [a] palpably incorrect or irrational basis or that it was obvious that the court either did not consider, or failed to appreciate the significance of probative, competent evidence. . . . Motion denied.

This appeal ensued.

Before us, plaintiff argues the judge erred in denying his motion for reconsideration because he cited appropriate legal authority not presented at the initial hearing, and, pursuant to those precedents, his complaint should not have been dismissed. He urges us to grant him judgment, transfer the matter to the Law Division and order a trial limited solely to his claim for damages. Having considered these arguments in light of the record and applicable legal standards, we reverse and remand the matter to the Special Civil Part for further proceedings consistent with this opinion.

Rule 4:49-2 requires that a motion for reconsideration "state with specificity the basis on which it is made, including a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred." Motions for reconsideration are addressed to "'the sound discretion of the Court, to be exercised in the interest of justice.'" Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). Reconsideration is to be utilized narrowly, and reserved for situations where the court relied "'on plainly incorrect reasoning[,]'" where the court failed to consider probative, competent evidence, or where "'there is good reason for [the court] to reconsider new'" evidence. Town of Phillipsburg v. Block 1508, Lot 12, 380 N.J. Super. 159, 175 (App. Div. 2005). (emphasis omitted) (quoting Pressler, Current N.J. Court Rules, Comment 2 on R. 4:49-2 (2005)). Reconsideration should be exercised "'in the service of the ultimate goal of substantial justice.'" Casino Reinvestment Dev. Auth. v. Teller, 384 N.J. Super. 408, 413 (App. Div. 2006) (quoting Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 264 (App. Div. 1987), certif. denied, 110 N.J. 196 (1988)).

Recognizing that he was self-represented and, we believe, striving to provide the utmost fairness, the judge essentially invited plaintiff's motion for reconsideration to present any legal authority he had referenced but could not cite at the time of the hearing. However, when the motion was made and plaintiff drew the judge's attention to applicable case law that arguably controlled, the judge denied the request. We believe that was a mistaken exercise of her discretion.

It suffices to say that both cases cited by plaintiff support the proposition that registration of the property as a hotel is not dispositive of whether the Anti-Eviction Act applies. As Judge Eichen explained in McNeill, supra, 285 N.J. Super. at 216-17,

The Anti-Eviction Act does not protect an occupant of a "hotel, motel or other guest house or part thereof [who is] a transient guest or seasonal tenant." (emphasis added) N.J.S.A. 2A:18-61.1. The Anti-Eviction Act, however, does not define the term "transient." Therefore, we look to other sources in order to interpret the statute. The regulations governing hotels and multiple dwellings define the term "transient" as "occupancy for not more than 90 days by a person having a principal residence elsewhere." N.J.A.C. 5:10-2.2. The Anti-Eviction Act defines the term "permanent" as an occupancy in which "the occupant maintains no other domicile at which the occupant votes, pays rent or property taxes or at which rent or property taxes are paid on the occupant's behalf." (emphasis added) N.J.S.A. 2A:18-61.1.

[(Alteration in original).]

In McNeill, we found that the plaintiff's residence in the hotel for longer than three years, interrupted only when it closed for renovations, and her return thereafter demonstrated it was her "permanent home or domicile." Id. at 217. We determined that the court erred in concluding the Anti-Eviction Act did not apply and dismissing the plaintiff's complaint for unlawful entry and detainer. Id. at 214; accord Williams, supra, 249 N.J. Super. 486 (reaching the same result where the plaintiff lived in the hotel for two years, his family members attended school, it was his voting address and he had no present intention to leave).

We recognize that different facts dictated different results in other cases. See, e.g., Francis v. Trinidad Motel, 261 N.J. Super. 252, 258 (App. Div.), certif. denied, 133 N.J. 437 (1993) (the Anti-Eviction did not apply to a transient guest of a hotel who stayed on a weekly basis for four months); Poroznoff v. Alberti, 168 N.J. Super. 140, 141-42 (App. Div. 1979) (the mere assertion that the room was the plaintiff's sole residence was insufficient to establish he was not a transient guest). However, the point is that plaintiff's complaint should not have been dismissed based solely upon defendant's production of a hotel registration for the premises. We therefore reverse the order of dismissal.

However, the appropriate remedy is not entry of judgment in plaintiff's favor. In this case, there never was a trial. While plaintiff was under oath during the return date of the order to show cause, it is quite clear that defendant never had the opportunity to cross-examine him or present her own evidence. Therefore, the matter is remanded for further proceedings.

Lastly, plaintiff's motion for reconsideration also included a request to transfer the matter to the Law Division based upon an assertion that the amount in controversy would ultimately exceed the jurisdictional limits of the Special Civil Part. See R. 6:1-2(a)(1) (limiting claims cognizable in the Special Civil Part to those in which "the amount in controversy does not exceed $15,000"). Rule 6:4-1(b) provides:

A plaintiff, after commencement of an action in the Special Civil Part, but before the trial date, may apply for removal of the action to the Law Division, on the ground that it appears likely that the recovery will exceed the Special Civil Part monetary limit by (1) filing and serving in the Special Civil Part an affidavit or that of an authorized agent stating that the affiant believes that the amount of the claim, when established by proof, will exceed the sum or value constituting the monetary limit of the Special Civil Part and that it is filed in good faith and not for the purpose of delay; and (2) filing in the Law Division and serving a motion for transfer. The Law Division shall order the transfer if it finds that there is reasonable cause to believe that the amended claim is founded on fact and that it has reasonable chance for success upon the trial thereof.

[(Emphasis added).]

Here, plaintiff never sought the relief prior to making the motion for reconsideration. More importantly, there is no evidence that any motion was ever filed in the Law Division, which, pursuant to the Rule, is charged with consideration of the application. Because we reverse and remand the matter for reinstatement of plaintiff's complaint, he is free to seek the relief in the Law Division should he so choose.

Reversed and remanded. We do not retain jurisdiction.