137-147 36TH STREET HCPVI, LLC VS. JOSEPHINA PEGUERO (LT-10153-18, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-3104-18T4

137-147 36TH STREET
HCPVI, LLC,

Plaintiff-Respondent,

v.

JOSEPHINA PEGUERO,

Defendant-Appellant.
____________________________

Argued telephonically August 13, 2020 –
Decided August 27, 2020

Before Judges Moynihan and Mawla.

On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Docket No. LT-10153-18.

James B. Shovlin argued the cause for appellant
(Chasan Lamparello Mallon & Cappuzzo, PC,
attorneys; James B. Shovlin on the briefs).

Tracey Goldstein argued the cause for respondent
(Feinstein Raiss Kelin Booker & Goldstein LLC,
attorneys; Tracey Goldstein on the brief).

PER CURIAM
 Named defendant Josephina Peguero1 and her two sons, Freddy Abreu and

Nelson Peguero (collectively, the lease tenants) were tenants under a lease for

an apartment with 36th Street Realty, LLC; appellant Jacobo Pena was never

named on a lease.2 In June 2018, 137-47 36th Street LLC (plaintiff) sent a notice

to "JOSE[PH]INA PEGUERO, TENANT(s), AND ANY AND ALL OTHER

UNAUTHORIZED OCCUPANTS" to cease violating the lease terms by

"permitting unauthorized persons to reside in [the] apartment and/or are

subletting or assigning [the] lease." Plaintiff later filed a complaint against

Peguero and an unauthorized tenant designated "John Doe," seeking a judgment

of possession.

1
Josephina is also spelled as "Josefina" in some portions of the record. We use
the spelling of her first name that is contained in the notice of appeal.
2
The only lease provided in the record was for a one-year term commencing
December 1, 2008 and ending November 30, 2009. Inasmuch as the record does
not support that that lease was presented to the second trial judge, we will not
consider same as part of the record. R. 2:5-4(a). Pena's merits brief, however,
contains these factual assertions; we use them not to determine this appeal, but
to give context to the meager record consisting of the parties' filings and the
notices entered as C-1 and C-2 in evidence by the second trial judge who entered
the order under appeal. Both parties' merits briefs and appendices contain many
factual allegations and documents that were not presented to the second trial
judge. We constrain our review to the record made before that judge. Hisenaj
v. Kuehner, 194 N.J. 6, 25 (2008).

A-3104-18T4
2
 On the date set for trial, plaintiff, the lease tenants and Pena,3 a purported

resident of the apartment, entered into a consent to enter a judgment of

possession allowing the lease tenants and Pena to remain in residence until no

later than February 28, 2019, at a monthly rental of $670. Plaintiff agreed to

return rental-payment checks for August and September. The first trial judge

questioned Abreu and Pena who said he was "authorized to speak on . . . behalf"

of Nelson who was in service of the United States Navy and stationed in San

Diego.4 Pena testified he was not under the influence and, represented by

counsel, had no questions of his attorney; he stated his desire for the judge to

accept the consent agreement.

On March 8, 2019, based on Pena's certification that "the [l]andlord sent

[him] a notice of rent increase and [he] paid it," the second trial judge entered

an order to show cause why the judgment of possession should not be vacated.

3
Pena is identified in the caption of the consent as Jacobo Yeta although he
signed as Jacobo W. Pena. The first trial judge addressed him on the record as
"Mr. Peguero." He was later addressed by a second trial judge as "Mr. Yetta."
It is clear from the record that all references are to Pena.
4
According to Pena's merits brief, Abreu, his stepson, "moved out of the
apartment in the early 2000's," and Josephina—identified as Pena's "partner"—
passed away in 2005; Nelson moved out "[a]pproximately five years ago[.]"
This appeal involves only Pena.

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3
Although a motion with brief was not filed by Pena, the second trial judge

considered arguments made on the return date by Pena's new counsel that the

judgment be vacated pursuant to Rule 4:50-1(f).5 The second trial judge entered

an order staying the execution of a warrant of removal until April 30, 2019, a

date to which plaintiff agreed, after which Pena would have no right to occupy

the apartment.

Pena appeals from that order. 6 We affirm.

Pena presented two oral arguments to the second trial judge, albeit without

moving any documents into evidence. The judge, however, entered as

"stipulated document[s]" a notice to quit with rent increase served by plaintiff

in late December 2018—after the October 1, 2018 consent agreement and before

the February 28, 2019 removal date. Pena contended that notice, which raised

5
Rule 4:50-1(f) provides: "On motion, with briefs, and upon such terms as are
just, the [judge] may relieve a party . . . from a final judgment . . . for . . . any
other reason [not enumerated in subsections (a) through (e)] justifying relief
from the operation of the judgment[.]"
6
The first trial judge granted Pena's application for a stay; according to
plaintiff's merits brief, "[n]o written [o]rder exists as the [o]rder was just entered
on the record." Plaintiff's appendix includes a copy of a subsequent order
entered by the first trial judge staying execution of the judgment of possession
and warrant of removal until January 15, 2020. No extensions of the stay are
contained in the record, although at oral argument the parties agreed that a stay
order is currently in place until mid-September.
A-3104-18T4
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the rent from $670.54 to $683.28 beginning February 1, 2019, created a new

tenancy which was accepted by Pena who paid the increased rent. Pena also

argued he received "bad advice" from the attorney who represented him when

the consent agreement was entered, and that he should have proceeded to trial

arguing he was "a functional co-tenant, as he has been [living in the apartment]

since 1990 . . . paying rent." Further, Pena urged that "because of the . . . intent

of the . . . Anti-Eviction Act[, N.J.S.A. 2A:18-61.1 to -61.12,] which has a strong

public policy of keeping not only people in their apartments but elderly

individuals . . . and disabled individuals, all of which [Pena] classify (sic)

under," the interests of justice compelled the judgment to be vacated under Rule

4:50-1(f).

The second trial judge determined "the very limited issue [before him was]

whether . . . a new tenancy was created by virtue of the notice to quit with rent

increase[.]" The judge found that a disclaimer in that notice specified that a new

tenancy or lease was not being offered, and concluded a new tenancy was not

created.

We review a trial judge's grant or denial of a motion for relief from

judgment with substantial deference and will not reverse it "unless it results in

a clear abuse of discretion." U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449,

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467 (2012). "[A]n abuse of discretion occurs when a decision is 'made without

a rational explanation, inexplicably departed from established policies, or rested

on an impermissible basis.'" Deutsche Bank Tr. Co. Ams. v. Angeles, 428 N.J.

Super. 315, 319 (App. Div. 2012) (alteration in original) (quoting Guillaume,

209 N.J. at 467-68).

As to a Rule 4:50-1 motion, our Supreme Court has cautioned that

although that Rule has a "broad reach . . . designed to encompass a limitless

variety of factual situations, including judgments arising from summary -

dispossess proceedings," Hous. Auth. of Morristown v. Little, 135 N.J. 274, 289

(1994), the Rule should be used "sparingly, in exceptional situations; the Rule

is designed to provide relief from judgments in situations in which, were it not

applied, a grave injustice would occur," ibid. "Because of the importance that

we attach to the finality of judgments, relief under Rule 4:50-1(f) is available

only when 'truly exceptional circumstances are present.'" Id. at 286 (quoting

Baumann v. Marinaro, 95 N.J. 380, 395 (1984)).

We agree with the second trial judge's conclusion that the notice to quit

with rent increase did not create a tenancy with Pena. We first note, the notice

was not sent to Pena; it was addressed to Josephina.

A-3104-18T4
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 Pena was never a tenant. The record is bare of any evidence that before

the first trial date plaintiff had any knowledge of Pena's identity. He is not listed

on the lease. He was named as John Doe in the complaint. Thus, we find no

merit to Pena's argument that the notice to quit with rent increase created a new

tenancy at the increased rental.

The timing of the notices, after the consent agreement was entered and

before Pena was required to vacate, does not persuade us that plaintiff intended

to offer Pena a tenancy. The disclaimer in the notice of rent increase provided

in part:

The enclosed notice is an automated notice that is being
sent to all tenants in [the] building and is not any way
a conscious effort on the part of [plaintiff] to waive any
of its rights it has vis-à-vis a particular tenant or
occupant. That means, if you have been issued a
[n]otice to [q]uit demanding possession of your
apartment, or there is a pending eviction proceeding
against you, or a warrant of removal has been issued
against you, or you are currently staying in the
apartment pursuant to a hardship stay or pursuant to a
stipulation agreement or in connection with your
employment by [plaintiff], or you have a delinquent
balance, or you are not complying with a [n]otice to
[c]ease, those proceedings, balances, notices and/or
agreements are not in any way affected by this notice
of rent increase; [plaintiff] is NOT offering you a new
tenancy and/or lease nor reducing the amount of rent or
use and occupancy that you are require[d] to pay. The
issuance of this notice of rent increase does not in any
way constitute a waiver of [plaintiff's] rights, including,

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 without limitation, the right to pursue an eviction
proceeding and lockout against you.

[(Emphasis added).]

The very terms of the notice state it was "an automated notice" sent to all

tenants to effect a rent increase for the coming year. Although sending shotgun

notices to tenants who may be involved in tenancy actions may engender

confusion, it did not signify plaintiff's intent to enter into a lease agreement

where one did not exist with Pena. And though the consent agreement is not

one of the enumerated circumstances in the disclaimer that were not impacted

by the notice, the language makes clear plaintiff's intention not to abrogate the

consent agreement.

Nor are we persuaded by Pena's argument that the provisions of the Anti-

Eviction Act prohibit plaintiff from invoking the disclaimer to "infringe upon

rights given to a tenant by State [l]aw." Pena cites for the first time N.J.S.A.

2A:18-61.4, 2A:18-61.36 and 2A:18-61.55 as provisions "which discuss the

unenforceability of provisions in contracts and leases in which a tenant waives

any rights or protections awarded to him by the State of New Jersey[.]" While

that argument is typically waived because it was not presented to the trial judge,

Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973), we address it only

A-3104-18T4
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because of Pena's casual reference to the second trial judge's mention of the

Anti-Eviction Act.

The cited provisions extend rights to tenants. Pena is not one.

Furthermore, neither the disclaimer nor the notice is a lease or other agreement

requiring a tenant to waive any rights; as such the cited statutes are inapplicable. 7

And, the disclaimer did not reserve any rights to plaintiff to the detriment of

Pena; Pena waived whatever rights he may have had by entering into the consent

agreement in exchange for his continued occupancy until the end of February

7
N.J.S.A. 2A:18-61.4 provides:

Any provision in a lease whereby any tenant covered
by section 2 of this act agrees that his tenancy may be
terminated or not renewed for other than good cause as
defined in section 2, or whereby the tenant waives any
other rights under this act shall be deemed against
public policy and unenforceable.

N.J.S.A. 2A:18-61.36 provides: "Any agreement whereby the tenant waives any
rights under P.L.1981, c. 226 (C. 2A:18-61.22 et seq.) on or after the effective
date of this 1983 amendatory act shall be deemed to be against public policy and
unenforceable."

N.J.S.A. 2A:18-61.55 provides: "Any agreement whereby the tenant waives any
rights under this act shall be deemed to be against public policy and
unenforceable."

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2019. The disclaimer did not violate any right granted to a tenant under our

laws.

Pena's argument that the disclaimer should have been presented in

Spanish, and plaintiff's failure to do so prevented Pena from understanding its

terms is without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). We

note only that the argument is waived because it was not made to the second

trial judge, Nieder, 62 N.J. at 234, and the notice including the disclaimer was

not addressed to Pena.

We observe the second trial judge did not address Pena's oral claim on the

order to show cause return date that exceptional circumstances justifying the

vacation of the judgment under Rule 4:50-1(f) were established because Pena

was "a functional co-tenant, as he has been [living in the apartment] since 1990"

as a tenant, and had been paying rent, and the Anti-Eviction Act's "strong public

policy of keeping not only people in their apartments but elderly individuals

. . . and disabled individuals, all of which [Pena] classify (sic) under[.]"

While we would often remand a case for a trial judge to set forth findings

of fact and conclusion of law concerning an argument raised by a party, R. 1:7-

4(a), we determine there was no evidence presented to the second trial judge to

support Pena's claim of exceptional circumstances.

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 Pena's counsel told the second trial judge, they "have proofs here that

[Pena's] been in the building for this amount of time" since 1990. Proofs of that

claim, however, were never presented. Nor were there any proofs that Pena paid

rent, or that plaintiff knew of Pena's occupancy and acquiesced to it. Thus, there

was no evidence to support his present allegation that he established a co-

tenancy under the tripartite test announced in Maglies v. Estate of Guy, 193 N.J.

108, 126 (2007) (holding a functional co-tenant entitled to protection under the

Anti-Eviction Act is "one who can show that [he or] she has been continuously

in residence; that [he or] she has been a substantial contributor toward

satisfaction of the tenancy's financial obligations; and that [his or] her

contribution has been acknowledged and acquiesced to by [his or] her

landlord").8

Nor did Pena submit any evidence to support his general averment that he

was elderly and disabled. And he did not raise his financial status to the second

8
We do not consider whether this case is analogous to Maglies, or the other
cases now cited by Pena in his merits brief in support of this argument. Those
cases were not brought to the second trial judge's attention. Indeed, Pena only
mentioned the "functional co-tenant" issue when his counsel told the second trial
judge that Pena's first counsel should have gone "to trial and made the argument
that he's a functional co-tenant" instead of entering into the consent agreement.
As such, the present argument was not properly raised to the judge and is
considered waived. Nieder, 62 N.J. at 234.
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trial judge; that argument was made only in support of his later application to

another judge for a stay of the second trial judge's order.

Inasmuch as Pena failed to establish extraordinary circumstances

warranting relief from the judgment, we see no abuse of discretion in the second

trial judge's denial of Pena's request to vacate same. As the Court observed,

[s]ignificantly, Rule 4:50-1 is not an opportunity for
parties to a consent judgment to change their minds; nor
is it a pathway to reopen litigation because a party
either views his settlement as less advantageous than it
had previously appeared, or rethinks the effectiveness
of his original legal strategy. Rather, the [R]ule is a
carefully crafted vehicle intended to underscore the
need for repose while achieving a just result.

[DEG, LLC v. Township of Fairfield, 198 N.J. 242, 261
(2009).]

To the extent not addressed, we determine Pena's remaining arguments are

without sufficient merit to justify discussion in this opinion. R. 2:11-3(e)(1)(E).

Any stay previously entered is vacated, subject to any counteracting

executive or omnibus judicial order concerning tenancies during the current

COVID-19 pandemic.

Affirmed.

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