J. Allen Nimmo Apartments v. Ashley Martinez

• Court: New Jersey Superior Court Appellate Division
• Decided: November 21, 2024
• Docket: A-1337-23
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1337-23

J. ALLEN NIMMO APARTMENTS,

Plaintiff-Respondent,

v.

ASHLEY MARTINEZ,

Defendant-Appellant. ________________________

Submitted November 14, 2024 – Decided November 21, 2024

Before Judges Mayer and Rose.

On appeal from the Superior Court of New Jersey, Camden County, Law Division, Docket No. LT- 005455-23.

South Jersey Legal Services, Inc., attorneys for appellant (Sandra Passaro and Kenneth M. Goldman, on the brief).

Respondent has not filed a brief.

PER CURIAM In this landlord-tenant eviction action, defendant-tenant Ashley Martinez

appeals from a November 30, 2023 judgment for possession entered in favor of

plaintiff-landlord J. Allen Nimmo Apartments after a bench trial. For the

reasons that follow, we reverse and remand to the trial court to vacate the

November 30, 2023 judgment for possession. As a result, our February 8, 2024

stay order is dismissed as moot.

We recite the facts from the tenancy trial. Defendant has lived with her

three children in plaintiff's federally subsidized apartment complex in Camden

since October 15, 2021.

On July 10, 2023, plaintiff's representative, Biagio Caruso, accompanied

by a court officer, sought to lock defendant out of her apartment for non-

payment of rent pursuant to a prior judgment for possession. Defendant told

Caruso and the court officer she paid the rent five days earlier and had a receipt

proving her payment. Despite this representation, the court officer removed

defendant from her apartment. However, he explained defendant could regain

the key to her apartment upon delivering a money order payment of $600 to

plaintiff's leasing office.

When defendant arrived at the leasing office with the $600 money order,

plaintiff's senior manager stated the payment would not be accepted because the

A-1337-23 2 money order did not satisfy the full rent amount owed. Defendant got "upset"

and "loud," and plaintiff's staff asked her to leave. Later, defendant returned to

the leasing office with the additional rent payment only to discover the office

was locked. With the assistance of the local police, defendant paid the

outstanding rent to plaintiff.

Despite tendering the full amount of rent owed to plaintiff, on July 12,

2023, defendant received a notice to quit (Notice). The Notice stated defendant's

lease would terminate in thirty days and required defendant to move out of the

apartment no later than August 11, 2023, or face eviction. The Notice cited

N.J.S.A. 2A:18-61.1(e) as the grounds for eviction.

Subsection (e) permits the removal of a tenant for "violation of lease

covenants." Specifically, plaintiff claimed defendant violated the lease

agreement by "threatening the health, safety, or right to peaceful enjoyment by

property management staff; interfer[ing] with the management of the [apartment

complex]; and fail[ing] to timely supply all required information on the income

and composition or eligibility factors of the tenant household."

Because defendant did not vacate her apartment as demanded in the

Notice, plaintiff filed an eviction action on August 29, 2023. Plaintiff's eviction

A-1337-23 3 complaint cited "violation of lease covenants N.J.S.A. 2A:18-61.1(e)" as the

basis for requesting a judgment for possession.

The judge conducted a landlord-tenant trial on November 30, 2023. Both

parties were represented by counsel. When the judge asked plaintiff's counsel

to state the bases for the eviction, counsel responded with assault and terroristic

threats. However, plaintiff never alleged these grounds in its eviction complaint.

Defendant's attorney replied that plaintiff's eviction action cited violation

of the lease agreement, not assaultive or terroristic behavior. Defense counsel

argued the trial court lacked jurisdiction because plaintiff failed to strictly

comply with the requirements of the Anti-Eviction Act (Act), N.J.S.A. 2A:18-

61.1 to -61.12. As defendant's attorney explained, "a lease violation eviction

requires a notice to cease, and there was no notice to cease" served by plaintiff.

Recognizing the possible procedural misstep, plaintiff's counsel

contended N.J.S.A. 2A:18-61.1(p) applied and no notice to cease was required

for an eviction based on assault and terroristic threats. Plaintiff's attorney relied

on a copy of the police report attached to the Notice to argue defendant knew

the eviction was premised on her alleged assaultive and terroristic conduct

toward plaintiff's staff.

A-1337-23 4 Defense counsel reiterated a notice to cease was required for an eviction

based on a lease violation and plaintiff's complaint asserted defendant's

"violation of lease covenants," specifically citing subsection (e). Further,

defendant's attorney argued subsection (p) was never mentioned in plaintiff's

eviction complaint or the Notice. He contended proceeding with the tenancy

trial on a wholly newly ground for eviction would violate defendant's due

process rights.

Defendant's attorney therefore made an application to dismiss plaintiff's

complaint. The judge denied the motion, stating the "paramount" concern was

"assaultive behavior." The judge acknowledged defendant made a "good

argument," but he was "not satisfied" dismissal was appropriate.

The judge then proceeded with the trial. The judge heard testimony from

plaintiff's witnesses and admitted documents marked as evidence.

At the conclusion of plaintiff's case, defendant again moved to dismiss the

complaint. Defense counsel proffered a waiver defense because plaintiff entered

into a new lease and accepted rent from defendant after service of the Notice.

Defendant's attorney argued plaintiff's conduct in executing a new lease and

accepting rent was inconsistent with an intention to evict defendant. Defense

counsel also renewed her contention that, because plaintiff failed to serve a

A-1337-23 5 notice to cease under N.J.S.A. 2A:18-61.1(e), and subsection (e) was the only

statutory ground for eviction alleged in plaintiff's complaint, the judge was

required to dismiss the complaint. The judge again denied defendant's motion

for the same reasons stated on the record earlier. The judge also rejected

defendant's waiver argument, stating plaintiff was required to accept rent

payments under federal regulations governing Section 8 housing and was

permitted to accept rent while defendant remained in her apartment.

After the judge denied the renewed motion to dismiss the complaint,

defendant testified. At the conclusion of the trial, the judge was "satisfied the

Notice was appropriate." He explained "the reason primarily that the matter

[went] forward [was] because" of the July 10, 2023 incident in plaintiff's leasing

office. He also found plaintiff's manager's testimony "credible and worthy of

belief" regarding defendant's assaultive and threating conduct in the leasing

office on July 10, 2023.

Regarding the statutory basis for eviction under the Act, the judge

determined plaintiff sought to evict defendant under N.J.S.A. 2:18-61.1(p). He

found plaintiff demonstrated "by a preponderance of the evidence that [an]

assaultive threat did take place, and [was] . . . considered a terroristic threat,

[which was] sufficient grounds for an eviction." The judge entered a November

A-1337-23 6 30, 2023 order granting a judgment for possession in favor of plaintiff. In the

order, the judge wrote: "[plaintiff] ha[d] proven a cause of action for possession

. . . that terroristic threats were made by [defendant] upon [plaintiff's] staff."

The same day, the judge entered an order denying defendant's motion to dismiss

the complaint.

Defendant filed her appeal on January 4, 2024. 1 In a January 10, 2024

order, the judge denied defendant's application for a stay of the warrant of

removal pending appeal. In a February 8, 2024 order, we granted a stay

conditioned upon defendant's compliance with the lease.

On appeal, defendant argues the judge lacked jurisdiction to proceed with

the trial because plaintiff's complaint failed to strictly comply with the Act's

express statutory requirements governing eviction actions. Defendant further

asserts the judge's sua sponte amending of plaintiff's eviction action on the day

of trial, and altering the grounds for eviction from a cause of action based on the

breach of the lease agreement under N.J.S.A. 2A:18-61.1(e)(1) to a cause of

action based on terroristic threats under N.J.S.A. 2A:18-61.1(p), violated her

right to due process. We agree.

1 Plaintiff submitted a February 15, 2024 letter stating it was not participating on appeal. A-1337-23 7 When issues on appeal present mixed questions of law and fact, we defer

to the trial judge's supported factual findings, but review de novo the trial judge's

application of those facts to the law. Sullivan v. Port Auth. of N.Y. & N.J., 449

N.J. Super. 276, 283 (App. Div. 2017). Additionally, we review a judicial

determination in an eviction action for abuse of discretion. See Cmty. Realty

Mgmt. v. Harris, 155 N.J. 212, 236 (1998).

Defendant argues the judge lacked jurisdiction to issue a judgment for

possession because plaintiff failed to comply with the Act's requirements.

Defendant asserts plaintiff failed to provide a notice to cease with an opportunity

to cure as required under N.J.S.A. 2A:18-61.1(e). Defendant emphasizes

subsection (e) was the only statutory provision cited in plaintiff's eviction

complaint.

"[I]t is well recognized that '[t]he [Act] was designed to protect residential

tenants against unfair and arbitrary evictions by limiting the bases for their

removal.'" Maglies v. Estate of Guy, 193 N.J. 108, 121 (2007) (second alteration

in original) (quoting 447 Assocs. v. Miranda, 115 N.J. 522, 528 (1989)). The

Act reflects a "strong public policy of protecting tenants from improper

evictions by requiring landlords to establish 'good cause' before the court may

assert jurisdiction to remove a tenant." Harris, 155 N.J. at 239-40. "[T]he Act

A-1337-23 8 was designed to limit the eviction of tenants to 'reasonable grounds' and to

provide for 'suitable notice' of tenants in the event of an eviction proceeding."

447 Assocs., 115 N.J. at 527 (citing A.P. Dev. Corp. v. Band, 113 N.J. 485, 492

(1988)). The Act sets forth specific grounds for eviction and identifies the notice

requirements to be given to a tenant under each ground. N.J.S.A. 2A:18-61.1, -

61.2.

Under N.J.S.A. 2A:18-61.1(e), a landlord may establish reasonable cause

for eviction if the landlord demonstrates the tenant "has continued, after written

notice to cease, to substantially violate or breach any of the covenants or

agreements contained in the lease . . . provided that such covenant or agreement

is reasonable and was contained in the lease at the beginning of the lease term. "

To proceed with eviction under subsection (e), the landlord must first "provide

a written [n]otice to [c]ease to the tenant regarding his or her substantial

violation of the lease." Kuzuri Kijiji, Inc. v. Bryan, 371 N.J. Super. 263, 270

(App. Div. 2004). The following four "statutory preconditions must be

satisfied" before a landlord can file an eviction action under subsection (e):

1. The tenant must violate the landlord's rules and regulations or lease provisions;

2. The landlord must give the tenant a notice to cease those violations;

A-1337-23 9 3. The tenant must continue to violate the rules and regulation or lease provisions after receiving the notice to cease; and

4. The landlord must give the tenant a notice of termination one month before filing suit.

[Ashley Court Enters. v. Whittaker, 249 N.J. Super. 552, 557 (App. Div. 1991) (citing RWB Newton Assocs. v. Gunn, 224 N.J. Super. 704, 709 (App. Div. 1988)).]

Absent "a showing that one of the statutory grounds for eviction exists,"

the trial court lacks jurisdiction to enter a judgment for possession. Hous. Auth.

of Morristown v. Little, 135 N.J. 274, 281 (1994). A "judgment for possession

may [not] be entered unless the landlord demonstrates strict compliance with

these statutory provisions." Ashley Court Enters., 249 N.J. Super. at 556 (citing

RWB Newton Assocs., 224 N.J. Super. at 709). "Strict compliance with the

[Act], including all notice provisions, traditionally has been a jurisdictional

prerequisite for a dispossession action." Vander Sterre Bros. Constr. v. Keating,

284 N.J. Super. 433, 445 (App. Div. 1995).

Here, plaintiff sought to evict defendant for "violation of lease covenants

subsection (e)," and served a notice to quit on July 12, 2023. Plaintiff did not

dispute it never sent defendant a notice to cease and an opportunity to cure as

required under N.J.S.A. 2A:18-61.1(e). An action alleging a tenant's violation

A-1337-23 10 of subsection (e) requires the landlord serve a notice to cease and allow a tenant

an opportunity to cure prior to seeking a judgment for possession. Plaintiff's

failure to comport with the notice requirements under the Act divested the trial

court of jurisdiction to issue the judgment for possession. See Hous. Auth. of

Newark v. Raindrop, 287 N.J. Super. 222, 226 (App. Div. 1996) (holding the

absence of a written demand and written notice for delivery of possession in

accordance with the Act divests the trial court of jurisdiction).

Defense counsel informed the judge that defendant was not prepared to

proceed with the trial under N.J.S.A. 2A:18-61.1(p) because plaintiff's

complaint alleged only a violation of the lease under N.J.S.A. 2A:18-61.1(e).

Defendant's attorney asserted defendant needed time to prepare a defense to the

newly asserted ground for eviction before she could proceed with the trial.

While not essential to our disposition of this matter, when the judge sua

sponte allowed plaintiff to amend its eviction complaint on the day of trial,

asserting a wholly new basis for evicting defendant, it would have been

appropriate to adjourn the trial for a reasonable period of time to accord due

process to defendant.

It is well-recognized that a landlord must "specify 'in detail' the cause of

the termination of the tenancy," requiring a landlord to "name in a specific or

A-1337-23 11 explicit manner" the grounds for eviction. Raindrop, 287 N.J. Super. at 227

(citing Carteret Prop. v. Donuts, Inc., 49 N.J. 116, 124 (1967)). Such specificity

in an eviction action is required "to allow tenants an adequate opportunity to

prepare a defense before trial" and satisfy a tenant's "right to know as much as

possible about any eviction proceeding brought against him or her." Aspep

Corp. v. Giuca, 269 N.J. Super. 98, 103 (Law Div. 1993). These requirements

were not diligently applied in this matter.

For these reasons, we are constrained to reverse and remand to the trial

court to vacate the November 30, 2023 judgment for possession. Thus, our order

staying the warrant of removal pending appeal is moot.

Reversed and remanded. We do not retain jurisdiction.

A-1337-23 12