NOT FOR PUBLICATION WITHOUT THE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-4475-15T2
DRT INVESTMENTS, LLC,
Plaintiff-Respondent,
v.
MOSHE KLEIN,
Defendant-Appellant.
Submitted July 5, 2017 – Decided July 21, 2017
Before Judges Simonelli and Carroll.
On appeal from the Superior Court of New
Jersey, Law Division, Special Civil Part,
Ocean County, Docket No. LT-3288-15.
Greenblatt & Liebermann, LLC, attorneys for
appellant (Thomas M. Pohle, on the briefs).
Haber Silver & Simpson, attorneys for
respondent (Sherry L. Silver, of counsel and
on the brief).
PER CURIAM
This appeal arises from a residential landlord/tenant
dispute. Defendant Moshe Klein, the tenant, appeals from a June
9, 2016 order denying his application to vacate a judgment of
possession that was entered on September 29, 2015. The warrant
of removal has been stayed pending appeal. For the reasons that
follow, we reverse.
The facts relevant to this appeal are in large part
undisputed. Pursuant to a written lease agreement, plaintiff DRT
Investments, LLC, the landlord, rented a five-bedroom home in
Lakewood to defendant, his wife, and their nine children, including
their sixteen-year-old autistic son. The lease began on January
1, 2015, and required defendant to pay monthly rent of $2750.
Defendant paid the first six months' rent in advance, along with
a $4125 security deposit.
In August 2015, defendant began to withhold rent on the ground
that the basement tenant was operating a retail business that
disrupted the family's quiet enjoyment of the premises, and because
defendant was paying for electricity that was being used by the
basement tenant. Consequently, on August 19, plaintiff filed a
summary dispossess complaint against defendant for non-payment of
rent. The complaint stated defendant owed plaintiff $2982,
comprised of the August rent of $2750, $50 in late charges for
August, $125 in attorney's fees, and $57 in court costs. It also
stated that if the case was scheduled for trial on or after
September 1, 2015, the total amount due would increase to $5782.
The complaint further advised that "[p]ayment may be made to the
landlord or the clerk of the court at any time before the trial
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date, but on the trial date payment must be made by 4:30 PM to get
the case dismissed."
The dispossession action was tried on September 21 and
September 25, 2015. Plaintiff was represented by counsel, while
defendant appeared pro se. The trial judge reserved decision and
told the parties he would notify them when he was prepared to
place his findings on the record. However, no such notice was
given. Rather, on September 29, 2015, the judge entered a judgment
of possession in favor of plaintiff "in the amount of [$5482],
which is currently due and owing."1
Defendant received the judgment of possession on Saturday,
October 3, 2015, in an envelope that was postmarked October 1. On
Sunday, October 4, defendant sent plaintiff's representative a
text message stating: "I would like to give you rent today[.]" On
October 7, plaintiff's representative responded, "I do not want
to accept any money now."
Defendant asserted that he "could have and would have paid
the full amount [determined to be due by the court] before the
entry of the judgment for possession on September 29, 2015[,] if
I was given the opportunity to exercise my right to do so under
1
The record on appeal does not include the judge's findings, or
how the $300 reduction in the amount sought by plaintiff was
arrived at.
3 A-4475-15T2
New Jersey law." In defendant's May 24, 2016 certification in
support of his application to vacate the judgment of possession,
defendant set forth a chronology of the events that followed entry
of the judgment:
15. At my first opportunity after
learning on October 3, 201[5,] of the
[c]ourt's [o]rder entering the judgment of
possession on September 29, 2015, and
observance of two additional religious
holidays, I attempted to pay the landlord
directly but he refused to accept the money.
16. Therefore, I went to the courthouse
on October 7, 2015, which was the first day
after the religious holidays on October 5[]
and 6[] and attempted to post the money with
the Clerk. The Clerk would not accept the
deposit because a warrant for removal had not
yet been issued.
17. The warrant of removal was served
upon me on October 15, 2015. I immediately
went to the courthouse, requested a stay, and
posted the money due with the Clerk of the
Special Civil Part. The [c]ourt granted a
stay until April 5, 2016.
18. On March 11, 2016, I filed [a] motion
through counsel seeking to vacate the judgment
of possession and dismiss the complaint. The
application was based on the denial of my
right under New Jersey law to pay the amount
due as determined by the [c]ourt prior to the
entry of the judgment for possession. . . .
19. Notwithstanding this, and the fact
that I was current with my rent, on April 12,
2016, the [c]ourt denied my motion to vacate
the judgment and dismiss the complaint, and
instead granted a stay until June 1, 2016.
4 A-4475-15T2
20. The [c]ourt made no findings of fact
or conclusions of law as to the reasons for
the decision.
21. I am current in my rental payments
through May[] 2016[,] and am prepared to
deposit June's rent with the [c]ourt.
22. Despite my best efforts, I have not
been able to secure a new place to live for
my family. It is almost impossible to find a
landlord who is willing to rent to a family
with nine children in the area.
Unfortunately, [i]f the [c]ourt does not grant
me relief from the judgment, or in the
alternat[ive], grant a stay pending appeal[,]
I, along with my wife and nine children,
including my [sixteen-year-old] autistic son,
will be rendered homeless.
23. I am especially concerned about my
[sixteen-year-old] autistic son. His
therapist has indicated that the progress he
has made in recent years will be completely
and perhaps permanently lost if we are
evicted.
24. This case was never about the rent
money. I had the money and withheld it for
one month because the landlord refused to
address our legitimate complaints concerning
the diversion of electricity we paid for and
interference with our quiet enjoyment caused
by an illegal retail business he rented the
space below our living quarters to. The
[c]ourt recognized there was merit to our
complaints and granted a $300 abatement.
25. Furthermore, I am current in the
rent.
26. Based on the above, I respectfully
ask the [c]ourt to reconsider the April 12,
2016 [o]rder and vacate the judgment for
5 A-4475-15T2
possession[,] or in the alternat[ive] grant a
stay pending appeal.
On June 6, 2016, the trial court heard oral argument on
defendant's application and took testimony from defendant and his
wife. On June 9, the court entered an order that, while silent
on defendant's request to vacate the judgment of possession, stayed
the warrant of removal until July 12, 2016, to allow defendant's
son to finish the remainder of the school year. The order also
provided that no further stay applications would be considered or
granted.
Defendant filed a timely notice of appeal. On July 15,
2016, we granted defendant's motion for a stay pending appeal,
conditioned on defendant remaining current with all rent payments
during the pendency of the appeal.
On appeal, defendant argues that the denial of his motion to
vacate the judgment of possession resulted from a mistaken exercise
of discretion. We must thus determine "whether, under the
controlling factual and legal conclusions, the trial court abused
its discretion in failing to vacate the judgment for possession[.]"
Cmty. Realty Mgmt. v. Harris, 155 N.J. 212, 236 (1998) (citing
Hous. Auth. of Morristown v. Little, 135 N.J. 274 (1994)). Under
the circumstances of this case, we find defendant has met this
standard.
6 A-4475-15T2
It is well settled that, where appropriate, the provisions
of Rule 4:50-1 apply to tenancy actions. See Little, supra, 135
N.J. at 291 (holding that because the tenant paid all monies due
within three days after execution of the warrant of removal, had
five minor children, and the Housing Authority was a publicly-
subsidized housing provider that was "subject to public-policy
responsibilities not generally imposed on private landlords," the
tenant's exceptional circumstances warranted relief under Rule
4:50-1(f)). Similarly, in Stanger v. Ridgeway, 171 N.J. Super.
466, 473 (App. Div. 1979), where the tenant withheld his rent in
good faith in order to raise a habitability defense, and paid the
back rent three days after the landlord obtained a judgment of
possession, we found that "to allow plaintiff to evict defendant
under the circumstances would be a perversion of justice." We
also found that the court has the equitable power to terminate the
proceedings after entry of judgment under Rule 4:50-1(e), stating
that, the rent having been paid, it was "no longer equitable that
the judgment or order should have prospective application." Id.
at 474. See also Olympic Indus. Park v. P.L., Inc., 208 N.J.
Super. 577 (App. Div.), certif. denied, 104 N.J. 453 (1986)
(upholding the application of Rule 4:50-1 in a nonpayment case in
the context of a commercial tenancy).
7 A-4475-15T2
Here, as defendant correctly contends, the fundamental error
arose upon the court's failure to afford him the benefit envisioned
by N.J.S.A. 2A:18-55 ("the statute"). The statute permits a tenant
in a non-payment of rent case, such as this, to avoid eviction by
paying the rent "at any time on or before entry of final judgment
[] to the clerk of the court[.]" Ibid. (emphasis added). Thus,
where a tenant, such as defendant, disputes the amount of rent
due, and the court, after considering all the evidence, announces
its findings of fact, the statute clearly contemplates that the
tenant must be afforded the right to pay the amount due in accord
with the judge's determination before the entry of judgment.
Generally speaking, the tenant has until 4:30 p.m. on the day the
trial has ended and the decision announced to make the required
payment. See Cmty. Realty Mgmt., supra, 155 N.J. at 242 (where
the court outlined plain language instructions that must be given
tenants by the trial courts).
The statute appears to envision the typical landlord/tenant
dispute that is heard and decided in one day. That was not the
case here. In this case, the trial judge reserved decision and
then entered and mailed out the judgment of possession without
affording defendant the opportunity to pay the amount due by a
time certain so as to avoid entry of the judgment, as contemplated
by the statute.
8 A-4475-15T2
Defendant certified that he was prepared to pay the rent
determined to be due in court on the trial date. Ample support
for this claim is found in the record, and the judge accepted it.
Mike McNeal, Lakewood's fair housing and fair hearing officer, was
present at trial, and again during argument on defendant's motion
to vacate the judgment on April 4, 2016. In the course of that
argument, the following colloquy between defendant's attorney and
the court ensued:
[COUNSEL]: Your Honor, I don't know if
Your Honor is interested in hearing this, but
Mike McNeal is here in court and was here on
the day of the trial and knows from having
spoken to [defendant] that on the day of the
trial, he had the money with him to post with
the court had Your Honor - -
THE COURT: Oh, I believe that. I do
believe that.
[COUNSEL]: Okay. Okay.
THE COURT: There's no [] issue about
that.
Further corroboration of defendant's willingness and ability
to pay the rent found to be due plaintiff is contained in the text
messages appended to defendant's application to vacate the
judgment of possession. That documentation confirms that
defendant received the judgment by mail on a weekend when the
court was closed and promptly contacted the landlord directly to
make payment, which was rejected. We are firmly convinced from
9 A-4475-15T2
our review of the record that defendant was prepared to pay the
rent in court and would have done so had the judge announced the
amount due at the conclusion of the trial, or, alternatively, had
the judge stayed entry of the judgment until appropriate notice
of the amount due was given.
Parenthetically, we also note that the court's April 12, 2016
and June 9, 2016 orders are devoid of any statement of reasons why
relief from judgment pursuant to Rule 4:50-1 was inappropriate,
or at least no such reasons have been presented to us. Rule 1:7-
4(a) clearly states that a trial "court shall, by an opinion or
memorandum decision, either written or oral, find the facts and
state its conclusions of law thereon . . . on every motion decided
by a written order that is appealable as of right[.]" See Shulas
v. Estabrook, 385 N.J. Super. 91, 96 (App. Div. 2006) (requiring
an adequate explanation of the basis for a court's action). In
any event, the facts presented above, as well as the hardship that
would inure to defendant's large family, and especially his
autistic child, were the eviction to proceed despite the rent
continuing to be fully paid, compel us to conclude that relief
from judgment is warranted under Rule 4:50-1(e) and (f).
Accordingly, we reverse the order on appeal, and vacate the
judgment of possession and warrant of removal.
Reversed.
10 A-4475-15T2
DRT INVESTMENTS, LLC VS. MOSHE KLEIN(LT-3288-15, OCEAN COUNTY AND STATEWIDE)
Combined Opinion