HERITAGE HOUSE v. WILLIAM GIBBS

NOT FOR PUBLICATION WITHOUT THE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-4123-16T3

HERITAGE HOUSE,

       Plaintiff-Respondent,

v.

WILLIAM GIBBS,

     Defendant-Appellant.
____________________________

                Submitted October 11, 2018 – Decided October 22, 2018

                Before Judges Simonelli and Whipple.

                On appeal from Superior Court of New Jersey, Law
                Division, Special Civil Part, Essex County, Docket No.
                LT-006294-17.

                William Gibbs, appellant pro se.

                Gaccione Pomaco, PC, attorneys for respondent
                (Anthony G. Del Guercio, of counsel and on the brief).
PER CURIAM

      In this landlord-tenant matter, defendant William Gibbs appeals from the

March 8, 2017 judgment for possession, and the April 24, 2017 order for a

hardship stay. We affirm.

      On October 24, 2016, plaintiff served defendant with a notice to quit,

which alleged that defendant caused damage to plaintiff's personal property and

assaulted plaintiff's employee. The notice to quit terminated defendant's tenancy

on December 1, 2016. Plaintiff subsequently filed a complaint for possession,

which plaintiff voluntarily dismissed without prejudice with the intent of re-

serving a notice to quit and reinstituting the eviction process.

      On December 7, 2016, plaintiff served defendant with a notice to quit,

which alleged the same wrongful conduct as the first notice to quit. On February

10, 2017, plaintiff filed a complaint for possession. At trial, defendant admitted

to the conduct alleged in the notice to quit and raised no defenses. The court

entered the judgment for possession and subsequently issued a warrant of

removal, authorizing defendant's eviction on April 3, 2017.

      Defendant filed an order to show cause, requesting a hardship stay of

eviction. Over plaintiff's objection, the court entered the order for a hardship

stay, staying the eviction until June 1, 2017. Defendant sought no further relief,


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including a stay pending appeal. Defendant was locked out on June 5, 2017.

Prior to the lockout, defendant removed all of his personal property from the

property and voluntarily left the premises, rendering the lockout a mere

formality. Plaintiff has leased the property to another tenant since July 10, 2017.

      On appeal, defendant argues that plaintiff could not proceed with the

second complaint for possession because the first complaint was dismissed and

there was no indication it was dismissed without prejudice. Defendant did not

raise this issue before the trial court. Generally, we decline to consider issues

not raised to the trial court where, such as here, they are not jurisdictional in

nature and do not substantially implicate the public interest. Zaman v. Felton,

 219 N.J. 199, 226-27 (2014) (citation omitted); R. 2:6-2. Nevertheless, we

address this meritless argument.

      The voluntary dismissal of a complaint, unless otherwise stated in the

notice or stipulation of dismissal, constitutes a dismissal without prejudice. R.

4:37-1(a); see Woodward-Clyde Consultants v. Chemical and Pollution

Sciences, Inc.,  105 N.J. 464, 472 (1987). The clerk's notice does not specify

that the first complaint was dismissed with prejudice. Thus, the complaint is

deemed to have been dismissed without prejudice. "[A] dismissal without

prejudice 'generally indicate[s] that "there has been no adjudication on the merits


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                                        3
of the claim, and that a subsequent complaint alleging the same cause of action

will not be barred simply by reason of its prior dismissal.'"" A.J. Cornblatt, PA

v. Barow,  153 N.J. 218, 243 (1997) (second alteration in original) (quoting

Velasquez v. Franz,  123 N.J. 498, 509 (1991) (citation omitted)). Accordingly,

plaintiff could proceed with the second complaint.

      Affirmed.




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