DRT INVESTMENTS, LLC VS. MOSHE KLEIN(LT-3288-15, OCEAN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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

2 A-4475-15T2
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