HELP GENESIS CLINTON AVENUE URBAN RENEWAL LP v. SHANTE BREEDLOVE

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-4542-15T3

HELP GENESIS CLINTON AVENUE
URBAN RENEWAL LP,

        Plaintiff-Appellant,

v.

SHANTE BREEDLOVE,

     Defendant-Respondent.
__________________________________

              Submitted July 25, 2017 – Decided December 29, 2017

              Before Judges Ostrer and Leone.

              On appeal from Superior Court of New Jersey,
              Law Division, Special Civil Part, Essex
              County, Docket No. LT-005722-16.

              The Law Office of Jeffrey R. Kuschner,
              attorneys for appellant (Lindsay R. Baretz,
              on the brief).

              Respondent has not filed a brief.

        The opinion of the court was delivered by

OSTRER, J.A.D.

        Plaintiff     Help   Genesis    Clinton    Avenue    Urban    Renewal      LP

appeals from a Special Civil Part order denying its adjournment

request,      dismissing     its    non-payment     of   rent   complaint,         and
ordering a rent abatement in favor of defendant Shante Breedlove.

We conclude the court mistakenly exercised its discretion in

denying an adjournment.     Even if that were not so, procedural

errors in the subsequent default hearing warrant reversal of the

court's decision.

     We consider the adjournment issue first.    In February 2016,

plaintiff filed a complaint seeking $2086 in unpaid rent and fees.

At the end of March, the court required defendant to pay $3764 in

rent through April, and continue to pay rent each month, pending

a Marini1 hearing.   Defendant complained in writing that the stove

needed repairs; it would "smoke, no reason, [and] smell bad when

turn[ed] on."
2 On April 29, 2016, the court notified the parties

the Marini hearing would be held on June 3, 2016.   Ten days before

the hearing, plaintiff's counsel, by email, unsuccessfully sought

defendant's consent to a one-week adjournment.   Plaintiff contends

its counsel then tried to secure an adjournment from the court,




1
 Marini v. Ireland, 
56 N.J. 130 (1970); see also Daoud v. Mohammad,

402 N.J. Super. 57, 59 (App. Div. 2008) (noting that a defendant
tenant may raise habitability issues in a summary dispossess action
for non-payment of rent, and may obtain a hearing thereon, provided
the tenant deposits the rent with the court clerk).
2
  Plaintiff contends defendant did not attend a court-scheduled
mediation on April 27. The parties apparently also disagreed over
a time for plaintiff to access the apartment to assess the stove
and make repairs.

                                 2                          A-4542-15T3
but staff advised that counsel had to present his request in person

on the hearing date.

     Counsel   appeared       on   the    hearing       date   and     renewed    the

adjournment request, reporting that plaintiff's property manager

and another indispensable witness were in Washington, D.C. for a

Housing and Urban Development Department conference.                   Counsel also

stated that his client's position was that defendant was not

entitled to a rent abatement.

     The   court    was   dismissive           of   plaintiff's        reasons    for

requesting an adjournment.            Regarding the HUD conference, the

judge stated, "It's sucking down coffee, eating pastries, having

lunch all day, sitting with your colleagues chit-chatting, and in

between you might listen to something that's educational."                        The

court also noted that defendant had taken time to appear in court.

     Defendant, without being sworn, asserted that the building

manager was not at a conference because she saw the manager in her

building   that    morning.         Plaintiff's         counsel      repeated     his

understanding that she was unavailable.                  The court concluded,

"She's not here.      That's all I need to know," and proceeded to

conduct a hearing.

     Plaintiff     contends    that      the    court    erred    in    denying    an

adjournment and proceeding to a hearing in its absence.                   We agree.

We acknowledge that a trial court exercises broad discretion in

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controlling its calendar, and granting or denying an adjournment.

See, e.g., State v. Hayes, 
205 N.J. 522, 537 (2011).              However,

that discretion should be based on a rational explanation, after

considering relevant facts.     State v. Kates, 
216 N.J. 393, 396-97

(2014) (discussing necessity of a "reasoned, thoughtful analysis

of   the   appropriate   factors"   in   granting   continuance   to   seek

counsel); State v. Daniels, 
38 N.J. 242, 249 (1962) (stating that

a decision left to a court's discretion is one "founded on the

facts and the applicable law").          While "[o]ur courts have broad

discretion to reject a request for an adjournment that is ill

founded or designed only to create delay, . . . they should

liberally grant one that is based on an expansion of factual

assertions that form the heart of the complaint for relief."           J.D.

v. M.D.F., 
207 N.J. 458, 480 (2011).         A denial of an adjournment

must comport "with the fundamental principles of justice and

fairness that must guide all judicial decisions."           Berkowitz v.

Soper, 
443 N.J. Super. 391, 407 (App. Div. 2016).

      The denial here was made without essential findings as to

whether plaintiff's key witnesses had a just excuse for their

absence.    Relevant facts would include whether: counsel complied

with the Rule governing adjournment requests, see R. 6:4-7(a); the

witnesses were actually at a conference; their attendance at the

conference was mandatory or their absence excusable; and they

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delayed requesting an adjournment after receiving notice of the

conference.

     Although we share the court's concern about the inconvenience

and costs, such as lost wages, that defendant might have suffered

from an adjournment, the court had options short of proceeding in

plaintiff's absence.     The court could have required plaintiff to

compensate defendant for her costs.     See R. 1:2-4 (providing an

escalating range of sanctions, including the imposition of fees

or costs, when a party fails to appear without just excuse).     The

sanction of proceeding in the party's absence should be imposed

sparingly, when no lesser sanction would address the prejudice to

the non-delinquent party, and the imposition upon the court.     See

Kosmowsky v. Atlantic City Med. Ctr., 
175 N.J. 568, 575 (2003);

Connors v. Sexton Studios, Inc., 
270 N.J. Super. 390, 393 (App.

Div. 1994).   In sum, we conclude the court erred and reversal is

warranted.

     Further, the hearing that followed was also problematic.    The

court elicited testimony from defendant and her child, despite any

indication in the record they were sworn.    The child was not even

identified for the record.    Yet, it is fundamental that "[b]efore

testifying a witness shall be required to take an oath or make an

affirmation or declaration to tell the truth under the penalty

provided by law."      N.J.R.E. 603.   In the case of a child, the

                                  5                         A-4542-15T3
court is obliged to assure that the child understands the duty to

testify truthfully.      See State v. Bueso, 
225 N.J. 193, 204-05

(2016); State v. G.C., 
188 N.J. 118, 131-34 (2006).

     Defendant contended that her oven's on-off switch did not

work; "the light would stay on"; and the oven would smell and

smoke.3   She said she was afraid to use it.           She stated that

plaintiff twice replaced the oven, and she now had a brand-new

oven.

     The court then questioned the eight-year-old child.             The

judge     asked    her    if   her      mother      ever   baked     her

"a cake or anything" in the oven.      The child replied, "No but my

grandma did," which indicated that the stove was in some form of

working order.    Nonetheless, the court then asked, "So you had to

go out and buy your birthday cake?"      The child then replied that

on her birthday, she went to a restaurant.         The judge's response

then recast the child's statement: "Oh, so you actually had to go

out of your house to have your birthday party.        Nice for you, but

it cost your mother some money.       Okay."     The court also did not



3
  Plaintiff likely would have contested this assertion if it had
the opportunity to present its witnesses. According to documents
that plaintiff has provided – albeit without an appropriate motion
for leave to supplement the record – plaintiff's staff maintained
in a report of a prior inspection that defendant did not properly
clean the stove, and it was grease covered, which likely
contributed to the reported smell and smoking.

                                  6                             A-4542-15T3
afford plaintiff's counsel an opportunity to cross-examine the two

witnesses before proceeding to issue its decision.                      Plaintiff was

thereby deprived of a fair hearing (assuming it was appropriate

to conduct a hearing at all).

       Although a judge may interrogate witnesses to develop proofs,

N.J.R.E.   614,    that     authority      must       be    exercised    with    "great

restraint," and a court's questioning may not "give the jury an

impression that it takes one party's side or that it believes one

version of an event and not another."                      State v. Ross, 
229 N.J.
 389, 408-09 (2017); see Ridgewood v. Sreel Inv. Corp., 
28 N.J.
 121, 132 (1958) (stating that a judge may not cross "that fine

line    that    separates       advocacy       from        impartiality").        These

principles have relevance to bench-trials as well.                    A judge "often

has to focus the testimony and take over the questioning" of a pro

se party, but "[t]hat should be done in an orderly and predictable

fashion . . . and not at the expense of the parties' due process

rights"    by   denying     a   party   the      right       of   cross-examination.

Franklin v. Sloskey, 
385 N.J. Super. 534, 543 (App. Div. 2006).

       Here, the court's questioning could have led an objective

observer to conclude the court believed defendant's side of the

story before proofs were presented.              Plaintiff was also denied its

right to cross-examine defendant and her child.                         These errors

further undermine the court's decision.

                                           7                                    A-4542-15T3
    Reversed and remanded for a new trial before a different

judge.




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