Opinion
DOCKET NO. A-1645-14T1
04-12-2016
SHIRLEY SLIZEWSKI, Plaintiff-Respondent, v. JEFFREY MINTS, Defendant-Appellant.
Jeffrey Mints, appellant pro se. De Sapio Law Office, attorneys for respondent (Michael A. De Sapio, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges St. John and Guadagno. On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Hunterdon County, Docket No. LT-0316-14. Jeffrey Mints, appellant pro se. De Sapio Law Office, attorneys for respondent (Michael A. De Sapio, on the brief). PER CURIAM
Defendant Jeffrey Mints appeals from the October 20, 2014 order of the Special Civil Part, awarding plaintiff Shirley Slizewski judgment of possession of premises formerly leased by defendant.
On appeal, defendant raises a plethora of challenges to the order, claiming the trial judge employed legally incorrect definitions and faulty reasoning; made improper evidentiary use of audio recordings from a prior case; failed to appreciate the legislative intent of the statute providing the grounds for removal of tenants, N.J.S.A. 2A:18-61.1; unjustly permitted plaintiff to re-litigate an eviction without new claims or facts; wrongly denied defendant the opportunity to be heard on an affirmative defense; refused to hear evidence that the landlord retaliated against defendant after he angered her; proceeded in an "overly abbreviated fashion" induced by a conflict of interest; and finally, was biased or unduly deferential to plaintiff's attorney for interpretation of fact and law. We are not persuaded by any of these arguments.
Plaintiff is the owner of property in Hunterdon County consisting of a main house and two rental units. One of the rental units is attached to the main house while the second is in a detached garage.
In May 2006, defendant leased the attached rental unit as a month-to-month tenant. In 2010, while repairs were being made to defendant's unit, plaintiff permitted him to sleep in a spare bedroom in the main house for a few weeks. When the repairs were completed, defendant returned to his rental unit.
On March 7, 2014, plaintiff caused a notice to quit and demand for possession to be served on defendant, notifying him of the termination of his month-to-month tenancy (first notice to quit). The notice indicated that the landlord "wishes to personally occupy the property and no longer maintain it as a rental unit."
On June 9, 2014, plaintiff filed a complaint seeking a judgment of possession of defendant's rental unit (first complaint). At a hearing on July 29, 2014, the Special Civil Part judge dismissed the first complaint, apparently due to a deficiency in the notice to quit.
The transcript of the July 29, 2014 hearing and the order dismissing the complaint were not provided to us.
On July 30, 2014, a revised notice to quit and demand for possession was served upon defendant, followed by a second eviction complaint, which was filed on September 22, 2014.
On October 20, 2014, a different judge conducted an eviction hearing. Defendant, appearing pro se, argued that in June 2010, he slept in a bedroom in plaintiff's main house while repairs were being made to his rental unit. He claimed that by extending that "courtesy," plaintiff's main house became a "rental residency," and because she now owned three rental units, she could not avail herself of the owner-occupied exception in the Anti-Eviction Act, N.J.S.A. 2A:18-61.1 to -61.12 (AEA).
The AEA permits the "'owner of a building of three residential units or less' to oust a tenant if the owner intends to 'personally occupy a unit.'" Cashin v. Bello, 223 N.J. 328, 330 (2015) (quoting N.J.S.A. 2A:18-61.1(1)(3)).
After hearing the arguments of both parties, the judge took a recess and instructed his law clerk to listen to the recording of the July 29, 2014 proceeding and report the findings of the prior judge. There was no objection to this procedure by either party.
When the judge returned, he confirmed that the prior judge had concluded that defendant's brief stay in the main house did not have the effect of increasing the number of rental units from two to three, and, therefore, N.J.S.A. 2A:18-61.1 does not apply and N.J.S.A. 2A:18-53(a) is the applicable statute.
The judge found the ruling by the prior judge was the rule of the case and he was required to follow it absent an independent legal basis for not doing so. The judge added that even if the prior judge had not ruled, he would independently find that only two rental units existed on plaintiff's property.
Defendant also argued that by accepting his rent check for September 2014, plaintiff waived the July 30, 2014 revised notice to quit. Plaintiff testified that although she accepted and cashed the September rent check, she had no intention to permit defendant to remain as a tenant.
On cross-examination, defendant attempted to prove that plaintiff had harassed him and had "unclean hands." The judge noted that plaintiff was proceeding under N.J.S.A. 2A:18-53(a) and there are no bad faith or unclean hands defenses available under that section.
At the conclusion of the hearing, the judge ruled that plaintiff established ownership of the property; defendant was a month-to-month tenant; defendant was properly served with notice to quit; plaintiff did not waive that notice by accepting the September rent payment; plaintiff has established all of the elements of a successful claim for possession; and defendant had no legal basis for remaining in the rental unit. The judge entered an order granting plaintiff judgment of possession. This appeal followed.
A renter who does not have a written lease and pays rent monthly is a periodic month-to-month tenant. Harry's Vill., Inc. v. Egg Harbor Twp., 89 N.J. 576, 583 (1982). "A month-to-month tenancy is a continuing relationship that remains unabated at its original terms until terminated by one of the parties." Ibid. A landlord may terminate a month-to-month tenancy "by the giving of [one] month's notice to quit[.]" N.J.S.A. 2A:18-56(b).
Defendant does not dispute that he was a month-to-month tenant or that he was properly served with notice to quit. Rather, defendant claims he is entitled to the protection of the AEA because his brief stay in plaintiff's main house while repairs were being made to his rental unit converted the house into a third rental unit. There is no support for this claim in the record. Moreover, defendant's argument misinterprets the good cause exception contained in N.J.S.A. 2A:18-61.1(1)(3) which specifically allows the "owner of a building of three residential units or less" to remove a tenant if the owner intends to "personally occupy a unit."
Plaintiff testified that she has owned the property since 1956. She described the main house where she lives as an L-shaped ranch house with a rental unit, occupied by defendant, located "at the end of the L." On cross-examination, defendant was permitted to question plaintiff about a second tenant who lived in "a very tiny apartment behind the garage."
There was no evidence that plaintiff had ever leased the room in which defendant stayed, or any other room on the property, at any time.
We are satisfied that the judge's conclusion that there were only two rental units on plaintiff's property finds adequate support in the record. Even if the judge found that there were three rental units on the property, plaintiff would still have the right under N.J.S.A. 2A:18-61.1(1)(3) to evict defendant if she wanted to personally occupy the unit.
We need not determine whether the judge was required to accept the same conclusion reached by the prior judge under the law of the case doctrine, as the judge indicated he would reach the same conclusion.
We decline to consider defendant's claim that the court improperly considered the findings of the prior judge for two reasons. First, defendant failed to object during trial when the judge clearly informed the parties that his law clerk would listen to a tape of the proceedings during the lunch break and give him a summary. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Second, defendant has failed to provide a transcript of that proceeding as required by Rule 2:5-4(a). See also R. 2:5-3(b) (the transcript shall include the entire proceedings); and R. 2:6-1(a)(1)(I) (the appendix must contain parts of the record "essential to the proper consideration of the issues").
Defendant, who claimed to be a trained stenographer, ordered a tape of the proceedings and made an unofficial transcript, apparently for his own use. He confirmed that the law clerk's summary of the proceedings was accurate. --------
The remainder of defendant's arguments lack sufficient merit to warrant further discussion in our decision. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION