WASHINGTON STREET APARTMENTS VS. SHANA GOODMAN (LT-22712-19, ESSEX COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 25, 2021
• Docket: A-1582-20
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1582-20

WASHINGTON STREET APARTMENTS,

Plaintiff-Respondent,

v.

SHANA GOODMAN,

Defendant-Appellant. _______________________

Argued May 24, 2021 – Decided June 25, 2021

Before Judges Messano, Hoffman and Smith.

On appeal from the Superior Court of New Jersey, Special Civil Part, Essex County, Docket No. LT- 22712-19.

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

Bruce E. Gudin argued the cause for respondent (Ehrlich, Petriello, Gudin, Plaza & Reed, PC, attorneys; Bruce E. Gudin and Erin Enhlich Caro, on the brief).

PER CURIAM On March 19, 2020, as the State braced for the full effect of the anticipated

COVID-19 pandemic, Governor Philip D. Murphy issued Executive Order 106

(EO 106) which stayed the "enforcement of all judgments for possession,

warrants of removal, and writs of possession . . . unless the court determines on

its own motion or motion of the parties that enforcement is necessary in the

interest of justice." Exec. Order No. 106 (Mar. 19, 2020), 52 N.J.R. 553(a) (Apr.

6, 2020) (emphasis added). Chief Justice Rabner issued the Court's second

Omnibus Order on March 27; it cited EO 106 and specifically suspended

"lockouts of residential tenants (evictions)." Sup. Ct. of N.J., Second COVID-

19 Omnibus Order (Mar. 27, 2020).

In July, Judge Glenn A. Grant, Acting Director of the Administrative

Office of the Courts (AOC), issued Directive #20-20 (the Directive), which was

intended to "implement[] a multifaceted plan for improving the handling of

Landlord/Tenant (LT) cases from the outset, including by providing litigants

with information and resources." Administrative Directive #20-20, "Special

Civil Part – Landlord/Tenant Matters during COVID-19" (July 28, 2020). The

Directive specifically noted that the Court's July 14, 2020 Seventh Omnibus

Order "amended LT processes during COVID-19 by allowing

plaintiffs/landlords to seek an LT trial based on emergent circumstances," and

permitting a court to "order an eviction in the 'interests of justice.'" The A-1582-20 2 Directive noted that non-payment of rent would not justify a trial unless the

tenant had died, but it provided a non-exhaustive list of "grounds" that "may

constitute emergent circumstances justifying an LT trial." One such ground was

N.J.S.A. 2A:18-61.1(b), which permits the eviction of a residential tenant if

"[t]he person has continued to be, after written notice to cease, so disorderly as

to destroy the peace and quiet of the occupants or other tenants living in said

house or neighborhood." The Directive advised judges to "take into

consideration the circumstances of each case in determining whether a trial is

warranted," and it included a sample Order to Show Cause form that courts

should use when deciding to conduct an LT trial based on emergent

circumstances.

Defendant Shana Goodman is a tenant in a multi-family, federally

subsidized residential property owned by plaintiff Washington Street

Apartment. The litigation that gave rise to this appeal commenced well in

advance of the issuance of EO 106, the Court's Omnibus Orders, and the

Directive. In September 2019, the parties appeared in court on plaintiff's

eviction complaint alleging defendant violated her lease by allowing her dog to

bark "at various times throughout the day and night, every day of the week . . .

disturbing the peace and quiet of other occupants." Unable to mediate the

dispute, plaintiff asked for and received an adjournment to secure the presence A-1582-20 3 of its witnesses, but defendant failed to appear on the new trial date, September

26, 2019. The court issued a judgment for possession and a warrant of removal

issued thereafter.

Defendant filed an order to show cause, and the parties appeared in court

again on October 16, 2019. They negotiated a stipulation of settlement in which

defendant agreed to the issuance of a warrant for removal if she were in default

or in breach of the stipulation, a specific condition of which was that defendant

"prevent excessive barking from service animal, with all but incidental barking

not recurring after 7:00 [p.m.] Mon[day] — Sun[day]."

In February 2020, plaintiff moved for the issuance and execution of a

warrant of removal based on defendant's breach of the stipulation. The motion

was supported by the certification of a tenant who claimed defendant's dog had

barked incessantly throughout the weekend, thereby disturbing her peaceful

enjoyment of her apartment. Defendant did not respond to the motion, and the

judge issued another warrant for removal on February 28, 2020. Plaintiff was

unable to execute the warrant prior to the issuance of EO 106, and defendant

remained in the premises with her dog.

In November 2020, plaintiff filed a motion seeking a warrant for removal

pursuant to the "interests of justice" standard in EO 106 and the Directive. The

motion was supported by a certification from a neighboring tenant, Karim A-1582-20 4 Sharif, that said defendant's dog barked incessantly "at all hours of the day and

night" disturbing his peaceful enjoyment of the premises. On December 30,

2020, the judge issued an order to show cause on plaintiff's application for a

warrant of removal returnable January 13, 2021. 1 Pursuant to the terms of the

order, plaintiff personally served it on defendant.

Defendant failed to appear. The judge considered the testimony of Sharif.

He lived on the same floor as defendant on the other side of the elevator bank.

Defendant's dog was left alone in the apartment and constantly barked from 7

p.m. to "as early as 6 a.m." Sharif estimated this occurred six days a week. He

spoke with defendant "on several occasions" about the barking, which caused

him to spend most of his time in his bedroom, not his living room, but "she just

doesn't care." Sharif said that defendant would knock on his door when she was

"intoxicated" and admit the dog barked whenever she was not in the apartment .

But, defendant claimed, "I have no control over it. It's out of my control."

1 The order modified the form order attached to the Directive, which, as noted already, was intended to apply to an application by a landlord to conduct an "LT trial," and for the court to use in scheduling such trial. The preliminary language in the form order was therefore inapplicable to the facts of this case. Most importantly, like the form order, the order entered by the judge in this case contained all the salient provisions of the form order, including that it be personally served upon defendant. A-1582-20 5 In response to the judge's questioning, Sharif acknowledged making

complaints to the building manager in the past, and that he had stayed in the

apartment for many months after first complaining about the barking. He

explained that he "love[d]" his apartment, did not want to move, "[a]nd . . .

would complain for another year if that's what it took for [him] to come before

a [j]udge to express what [he has] been going through for the last year and a

half." The judge asked Sharif when he last complained to defendant about the

dog; Sharif said it occurred "about two weeks ago." Then, defendant knocked

on his door, told him she was going out and had no control over the dog's

barking. Defendant unleashed a string of expletives and told Sharif "[s]he didn't

have a concern in the world about [his] complaint, because nothing would be

done."

After considering plaintiff's counsel's argument, the judge issued an oral

decision. He found Sharif to be a "very credible witness" and defendant's dog

barked "every time the dog is left alone." The judge recounted the prior history

of the litigation and the terms of the stipulation. He noted, "This is a building

where there are multi-tenants and the [c]ourt has to ensure that the other tenants

can live in the building." The judge found defendant violated the stipulation and

that a judgment for possession should issue "in the interest of justice." He noted

Sharif "ha[d] been putting up with this for over a year . . . [and defendant] was A-1582-20 6 notified about the situation, and she hasn't taken any steps to fix the situat ion."

The judge entered the January 13, 2021 order granting plaintiff's request for a

warrant of removal to issue and be executed "in the interests of justice without

delay."

Defendant apparently sought an order to show cause because the judge

reconvened a virtual hearing on January 26. 2 Defendant appeared pro se, and

plaintiff's counsel appeared with the building manager, Tracy Carr.

Defendant explained the dog was a "service dog," which she took in when

defendant's mother passed away two years earlier. Defendant denied ever

getting notice of plaintiff's December 2020 motion for an order to show cause,

even though plaintiff filed a certification indicating defendant was personally

served. Defendant claimed any barking was from another dog on her floor. She

was with her dog "24/7," and the dog accompanied her whenever she left the

apartment. Defendant testified the dog did not bark "too much."

During the hearing, the dog began to bark, and defendant explained the

bark was "low" and only occurred because defendant was "at the door." She

stated that the dog "barks when she hears people in the hallway . . . the elevator,

somebody making a lot of noise or [if] we come in the door . . . ." Defendant

2 The appellate record does not include any pleading that resulted in the January 26, 2021 hearing. A-1582-20 7 claimed Sharif was "lying" about the frequency of the dog's barking. The judge

asked why the dog was still barking, and defendant explained, "Because I left

out and she wanted to come with me."

Carr was placed under oath and testified that she had received several

complaints about the dog from tenants in the building. Plaintiff had not accepted

any rent from defendant for more than one year while the action was pending.

Carr said she had spoken with defendant about the problem in March 2020,

something defendant acknowledged.

Defendant then brought an unidentified fellow tenant into the proceeding,

who said she heard the dog barking at night; another unidentified tenant said she

had been sleeping and the dog's barking did not bother her.

The judge concluded that defendant had violated the stipulation. He found

that defendant essentially admitted being unable to keep the dog from barking,

which was consistent with Sharif's claim that defendant told him there was

nothing she could do about the problem. The judge explained that although

defendant thought the dog's barking was not a problem, "the dog does bother

people." He entered an order staying execution of the warrant of removal

previously entered until February 26, 2021. Defendant filed an emergent

application for a stay pending appeal, which we granted, and we accelerated the

appeal. A-1582-20 8 Our standard of review following a bench trial is well-known.

Final determinations made by the trial court sitting in a non-jury case are subject to a limited and well-established scope of review: "we do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice[.]"

[Seidman v. Clifton Sav. Bank, SLA, 205 N.J. 150, 169 (2011) (alteration in original) (quoting In re Trust Created By Agreement Dated December 20, 1961, ex. rel. Johnson, 194 N.J. 276, 284 (2008)).]

In reviewing the judge's findings, "[w]e do not weigh the evidence, assess the

credibility of witnesses, or make conclusions about the evidence." Mountain

Hill, LLC v. Twp. of Middletown, 399 N.J. Super. 486, 498 (App. Div. 2008)

(alteration in original) (quoting State v. Barone, 147 N.J. 599, 615 (1997)).

However, we owe no deference to the judge's interpretation of the law and the

legal consequences that flow from established facts. Manalapan Realty LP v.

Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (citing State v. Brown,

118 N.J. 595, 604 (1990)).

Before us, defendant contends her due process rights were violated

because the proceedings "did not satisfy the special interests of justice

exception" in EO 106, the Court's Omnibus Order and the Directive. As we

understand the argument, defendant contends the judge failed to explain why A-1582-20 9 "this case of a six-pound barking dog" satisfied the exception, or that plaintiff

satisfied the notice requirements of the Directive's form order. She notes

plaintiff's counsel was surprised that the hearing took place on January 13, 2021,

having received a "postcard" that there would not be oral argument.

Although the judge did not take note of defendant's absence prior to the

start of the January 13, 2021, he had before him plaintiff's certification that

defendant had been personally served with the Order to Show Cause as required

by the Directive. He also knew that defendant had failed to respond. Plaintiff's

counsel's stray remark about a postcard is otherwise undeveloped by the record,

but the fact remains that the judge conducted the hearing after plaintiff

demonstrated compliance with the Directive, including express notification of

the significant potentially adverse consequences of the proceeding for

defendant.

The judge's factual findings following Sharif's testimony were extensive

and his oral decision, when fairly read in its entirety, reflects his understanding

of the terms of EO 106, the Court's Omnibus Orders, and the Directive. But

judges are required to do more.

Rule 1:7-4(a) requires judges to provide not only factual findings, but also

to "state [their] conclusions of law thereon." "Naked conclusions do not satisfy

the purpose of R. 1:7-4." Curtis v. Finneran, 83 N.J. 563, 570 (1980). Here, at A-1582-20 10 the first hearing, the judge said little more than that the facts satisfied the

interests of justice exception to the moratorium. He failed to explain why, and

we could remand the matter for the judge to provide a more fulsome explanation.

See, e.g., Slutsky v. Slutsky, 451 N.J. Super. 332, 358 (App. Div. 2017)

(remanding for findings and analysis).

However, we believe that is unnecessary because it is apparent that the

judge implicitly recognized what might constitute an emergency situation

justifying relief from the moratorium. The Directive itself used a violation of

the peaceable enjoyment of the premises by other tenants as an example.

Moreover, the judge was completely familiar with the procedural history of the

matter, which commenced more than fifteen months earlier and resulted in a

stipulated settlement that defendant allegedly violated on the same grounds that

supported the original complaint and judgment for possession.

Defendant also argues that the judge should "have afforded her a de novo

hearing" by vacating the judgment for possession entered after the January 13,

2021 hearing and providing her with the opportunity to cross-examine Sharif.

The failure to do so, defendant claims, violated her due process rights. See, e.g.,

In re Request to Modify Prison Sentences, 242 N.J. 357, 369 (2020) ("At a

minimum, due process requires notice and an opportunity to be heard." (quoting

A-1582-20 11 Doe v. Poritz, 142 N.J. 1, 106 (1995))). The contention is premised on the claim

that defendant "established that she had lacked notice of the earlier proceeding."

Certainly, the judge made no such finding and, it is fair to say that the

judge found most of defendant's testimony lacked credibility. Additionally, the

judge had plaintiff's certification of personal service on defendant. In response

to the judge's inquiry about being served on December 30, 2020, and whether

she was home to receive the motion papers, defendant said, "I can't really

remember that[,] but I know I didn't receive any court papers. . . . I would have

addressed the matter, like . . . when I got this [warrant for removal] on my door."

However, the procedural history we set forth in detail belies defendant's

assertion that she always responded to notices of court proceedings.

Moreover, the judge considered defendant's testimony which, strictly

speaking, did not refute Sharif's. Defendant acknowledged the dog barked when

she was not in the apartment, when people were in the hallways, when the

elevators ran, or when she entered the apartment. Indeed, the dog began barking

during the hearing and both unidentified neighbors who defendant solicited

acknowledged the dog's barking. As the judge noted, defendant's belief that her

dog did not create a disturbance reflected a "difference of opinion" from other

tenants, notably, Sharif, who the judge found credible.

A-1582-20 12 Lastly, defendant claims we should reverse because the judge failed to

consider the hardship to her and her two children if she were to be evicted. That

dilemma is, unfortunately, all too familiar to judges who preside over LT

matters. However, the equities to be balanced in this case were intrinsic in the

judge's obligation to decide whether plaintiff established relief from the

moratorium was "in the interests of justice." The judge considered the effect of

defendant's actions on other tenants in the building. We find no reason to

reverse.

The stay we previously issued is vacated, and the matter is remanded to

the trial court to re-issue the warrant of removal and permit its execution under

terms the court deems appropriate.

Affirmed and remanded. We do not retain jurisdiction.

A-1582-20 13