ORANGE SENIOR CITIZENS RESIDENCE, LLC VS. PAULETTE DAVIS (LT-32251-16, ESSEX COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 11, 2018
• Docket: A-1841-16T3
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1841-16T3

ORANGE SENIOR CITIZENS RESIDENCE, LLC,

Plaintiff-Respondent,

v.

PAULETTE DAVIS,

Defendant-Appellant.

_______________________________

Argued May 3, 2018 – Decided July 11, 2018

Before Judges Haas, Rothstadt, and Gooden Brown.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. LT- 32251-16.

Felipe Chavana argued the cause for appellant (Essex-Newark Legal Services, attorneys; Maria D. Castruita and Felipe Chavana, on the briefs).

Bruce E. Gudin argued the cause for respondent (Ehrlich, Petriello Gudin & Plaza, PC, attorneys; Matthew A. Sebera, on the brief).

PER CURIAM In this summary dispossess action, defendant-tenant

Paulette Davis appeals from the Special Civil Part's December

12, 2016 Judgment of Possession entered in favor of her

landlord, plaintiff Orange Senior Citizens Residence, LLC,

pursuant to N.J.S.A. 2A:18-61.1(c), which permits the removal of

a tenant who has willfully or by reason of gross negligence

caused or allowed destruction, damage, or injury to the

premises. Defendant argues that the trial judge failed to make

"the requisite findings . . . as to how [d]efendant's conduct

met the elements of gross negligence necessary to support the

entry of judgment under N.J.S.A. 2A:18-61.1(c)." Because we

conclude defendant's conduct did not meet the requirements of

N.J.S.A. 2A:18-61.1(c), we reverse.

The following facts are summarized from the bench trial

conducted on December 7 and December 12, 2016, and are generally

undisputed. Plaintiff is the owner and operator of the

"federally subsidized housing complex" where defendant has lived

since 2003. The complex's 132 housing units are available for

lease to elderly tenants. Defendant is currently sixty-eight

years old. She developed epilepsy at age three, and, as a

result, suffers from depression and memory loss. In 1991, she

underwent a "right temporal lobectomy," which further

exacerbated her memory loss.

2 A-1841-16T3 On October 3, 2016, at approximately 12:30 a.m., a security

guard at the complex noticed water flooding the stairs of the

facility and notified the building superintendent, Lincoln

Johnson. They traced the water back to defendant's second-floor

apartment and found she had fallen asleep with her kitchen

faucet running into a stopped sink, flooding her apartment. At

the time, no one else was present in her apartment. The

overflowing water damaged the sink, tiles, and countertops in

defendant's apartment. The water also flooded an adjacent unit

and a nearby staircase, and seeped through the floor of the

flooded areas, damaging the ceiling tiles in the community room

below and causing the ceiling to collapse "on top of a lot of

the furniture area."

On October 20, 2016, plaintiff served defendant with a

Notice to Quit and Demand for Possession (Notice) as required by

the Anti-Eviction Act, N.J.S.A. 2A:18-61.2, which terminated her

tenancy as of October 24, 2016. The Notice stated that on

October 3, 2016, defendant caused damage to the premises "by

reason of gross negligence" as a result of "water overflowing

from [her] kitchen sink faucet while unattended." Defendant

failed to vacate the unit by the termination date, and on

October 25, 2016, plaintiff filed a complaint for possession.

3 A-1841-16T3 Defendant responded in a November 14, 2016 letter

requesting "a reasonable accommodation" pursuant to the federal

Fair Housing Amendments Act (FHAA), 42 U.S.C. §§ 3601 to 3619.

According to her letter, defendant suffered from "depression and

memory loss as a result of her epilepsy." She requested

plaintiff remove her stove to accommodate her disability and "to

prevent a fire hazard in the apartment and protect [plaintiff's]

property." She also asked plaintiff to replace her "standard

continuous-flow faucet" with a "Pillar Tap Metering Faucet,"

which "requires the user to push down on the meter to activate

the flow of water" and stops automatically after a few seconds

to "guarantee[] that the kitchen sink will not over-flow."

Plaintiff denied defendant's request.

At trial, plaintiff presented the testimony of

superintendent Johnson and its property manager, Nereida Nieves,

both of whom described the extent of the damage defendant caused

to plaintiff’s property in detail.1 Nieves also testified about

three prior incidents in which the toilets in defendant's

1 Damages are not at issue in this appeal.

4 A-1841-16T3 apartment overflowed because "she dropped an object in the

toilet."2

Following the bench trial, the judge entered the judgment

of possession in plaintiff’s favor. The judge acknowledged that

plaintiff "testified credibly" that "flooding . . . emanated

from [defendant's] apartment" on October 3, 2016 from "an

overflowing sink." According to the judge, for "quite some

time," defendant had left the faucet "open," "running on full

blast," and "unattended" with "a stopper in the sink." The

judge referenced the photographs admitted into evidence

depicting the extent of the damage as well as the testimony

verifying "what was required to clean up the apartment."

The judge also acknowledged defendant's medical condition

and "memory issues" as well as "past problems . . . resulting in

an overflow of the toilet on several prior occasions." The

judge concluded that plaintiff proved "by a preponderance of the

evidence," that "[defendant's] inattention" constituted "gross

2 Defendant objected to the testimony of other incidents on the ground that they were not cited in the Notice. The judge overruled the objection. We note that the Anti-Eviction Act "reflects a public policy barring dispossess actions except upon strict compliance with the notice and procedural requirements of the Act," regardless of whether "the landlord has acted in good faith or the tenant has not been prejudiced." 224 Jefferson St. Condo. Ass'n. v. Paige, 346 N.J. Super. 379, 383 (App. Div. 2002).

5 A-1841-16T3 negligence," which "caused or allowed" "damage to the facility,"

and "that her presence in [the] apartment constitute[d]

something of a risk" to justify removal pursuant to N.J.S.A.

2A:18-61.1(c).3 The judge stayed the issuance of the warrant of

removal pending appeal, and this appeal followed.

In reviewing the trial judge's determination, we accord

substantial deference to the judge's special role as a fact

finder. See Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am.,

65 N.J. 474, 484 (1974) (instructing that a trial court's

findings are generally binding on appeal "when supported by

adequate, substantial and credible evidence"). Such

"[d]eference is especially appropriate when the evidence is

largely testimonial and involves questions of credibility."

Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011)

(quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). That

said, we afford no special deference to "[a] trial court's

interpretation of the law and the legal consequences that flow

3 The court also rejected defendant's claim that her disability resulting from "her memory loss and epileptic condition" was a defense to the removal and "entitled" her "to a reasonable accommodation." The court determined that such an accommodation was not required under federal law because it "would fundamentally alter the nature of the provider's operations" by "changing unsupervised senior adult housing into supervised senior adult housing." In light of our disposition of this appeal, we need not address that issue.

6 A-1841-16T3 from established facts." Manalapan Realty, L.P. v. Twp. Comm. of

Manalapan, 140 N.J. 366, 378 (1995).

The Anti-Eviction Act prohibits a landlord from evicting a

residential tenant except upon the establishment of good cause.

N.J.S.A. 2A:18-61.1. Under N.J.S.A. 2A:18-61.1(c), good cause

for removal may be established if the landlord demonstrates by a

preponderance of the evidence that the tenant "has willfully4 or

by reason of gross negligence caused or allowed . . . damage

. . . to the [landlord's] premises." "The legislative intent of

N.J.S.A. 2A:18-61.1(c) requires actual damage to the landlord's

property for there to be a cause of action for eviction." Les

Gertrude Assocs. v. Walko, 262 N.J. Super. 544, 549 (App. Div.

1993).

Gross negligence is defined as "conduct that comes

somewhere between 'simple' negligence and the intentional

infliction of harm, or, 'willful misconduct.'" Ivy Hill Park

Section III v. Smirnova, 362 N.J. Super. 421, 425 (Law Div.

2003) (quoting Clarke v. Twp. of Mount Laurel, 357 N.J. Super.

362, 370 (App. Div. 2003)). It requires "indifference to

consequences," Banks v. Korman Assocs., 218 N.J. Super. 370, 373

(App. Div. 1987), and has also been defined as "reckless

4 Plaintiff did not allege willful conduct on defendant's part.

7 A-1841-16T3 disregard of the safety of others." In re Kerlin, 151 N.J.

Super. 179, 185 (App. Div. 1977) (quoting State v. Linarducci,

122 N.J.L. 137, 137 (Sup. Ct.), aff’d, 123 N.J.L. 228 (E & A

1939)).

Therefore, at trial, a landlord must prove that its tenant

not only caused damage, but did so through conduct that amounts

to more than simple negligence. This construction of N.J.S.A.

2A:18-61.1(c), requiring more culpability than ordinary

negligence in the tenant's actions or inactions, is consistent

not only with the text of that provision, but with the general

legislative policies of the Anti-Eviction Act, N.J.S.A. 2A:18-53

to -84. "[T]he dominating principle in construing the Act [is]

that it must be construed liberally with all doubts construed in

favor of a tenant. . . ." 224 Jefferson, 346 N.J. Super. at

389.

In Muros v. Morales, 268 N.J. Super. 590, 597 (App. Div.

1993), we found the requisite level of culpability required in

N.J.S.A. 2A:18-61.1(c) where a tenant drilled holes in the floor

in order to gain access to electric current from her landlord's

basement outlets. In that same vein, in Stuyvesant Associates

v. Doe, 221 N.J. Super. 340, 343 (Law Div. 1987), a

schizophrenic tenant who failed to take his medication damaged

his own apartment by spray-painting appliances and windowsills

8 A-1841-16T3 and damaged the door of another tenant with a hammer. The court

found that failing to take his medication constituted gross

negligence to satisfy the statutory mandate and provide a basis

for removal because the tenant knew that he became psychotic and

delusional when he failed to medicate himself. Id. at 343-44.

In Ivy Hill, 362 N.J. Super. at 424-25, a tenant fell

asleep while boiling his urine to use on his back to alleviate

back pain, emitting a noxious odor into the building air.

Although it found "that putting something on a cooking range, or

in an oven, or the like, when one is so tired as to fall asleep

(as [the] defendant did) constitute[d] gross negligence," the

court concluded that emitting a noxious odor did not constitute

destruction, damage, or injury to the landlord's premises as

required under the statute. Id. at 425-27.

Applying these principles to the evidence in this record,

we are satisfied that plaintiff failed to establish by a

preponderance of the evidence that defendant's conduct was

"grossly negligent" to meet the requirements of N.J.S.A. 2A:18-

61.1(c), and the judge's contrary conclusion was erroneous.

While falling asleep after midnight and forgetting to turn off

the water when the stopper was in the sink was clearly

negligent, given defendant's medical condition, her conduct did

not rise to the level of gross negligence in the circumstances

9 A-1841-16T3 of this case. Indeed, her request that plaintiff replace her

faucet with a "Pillar Tap Metering Faucet" to avoid such an

occurrence in the future demonstrates concern rather than

"indifference to consequences[.]" Banks, 218 N.J. Super. at

373. In light of our decision, we need not address defendant's

argument, raised for the first time on appeal, that entry of the

judgment of possession contravened the Senior Citizens and

Disabled Protected Tenancy Act, N.J.S.A. 2A:18-61.22 to -61.39.

The judgment of possession is vacated, and the matter is

remanded for entry of an order dismissing the complaint with

prejudice. We do not retain jurisdiction.

Vacated and remanded.

10 A-1841-16T3