ALISA JENNINGS VS. EDWARD GNOINSKI (L-5718-19, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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-2736-19

ALISA JENNINGS and
JOHN E. GEORGAS,

Plaintiffs-Appellants,

v.

EDWARD GNOINSKI,

Defendant-Respondent.
________________________

Argued March 10, 2021 – Decided November 5, 2021

Before Judges Ostrer, Accurso and Vernoia.

On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-5718-19.

Mark Welsh argued the cause for appellants (Northeast
New Jersey Legal Services, attorneys; Meghan K.
Gulczynski and Mark Welsh, on the briefs).

Charles E. Tempio argued the cause for respondent.

The opinion of the court was delivered by

OSTRER, P.J.A.D.
 Under the Anti-Eviction Act, N.J.S.A. 2A:18-61.1 to -61.12, an owner of

a building with up to three residential units may evict a tenant so the owner can

personally occupy the tenant's unit. N.J.S.A. 2A:18-61.1(l)(3). But the owner

may not remove a tenant on a pretext. If the tenant vacates after the owner says

he is going to occupy and the owner then arbitrarily fails to do so, the tenant can

recover treble damages and attorney's fees. N.J.S.A. 2A:18-61.6(a).

In this case, a landlord sought his tenants' eviction for two reasons:

because they failed to pay rent, and because they failed to vacate after he notified

them he intended to occupy their unit. The parties settled the action with a "pay-

and-go" consent judgment. The judgment let the tenants stay for another three

months. In return, they agreed to pay $2,000 of the $4,000 rent they owed. Two

years later, contending the landlord failed to occupy the unit as required, the

tenants sued for treble damages and fees under the Anti-Eviction Act. They also

filed a claim under the Consumer Fraud Act, N.J.S.A. 56:8-1 to -20. The trial

court later granted the landlord summary judgment and dismissed the suit.

On the tenants' appeal, we must decide if the Anti-Eviction Act obliged

the landlord to occupy the unit after the parties resolved their case. We hold it

did not, because the consent judgment extended the tenancy in return for

additional rent and superseded the landlord's claim for possession based on his

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intent to occupy. We also hold that the landlord's notice of intent to occupy was

not actionable under the Consumer Fraud Act, because the landlord effectively

withdrew the notice by agreeing to extend the tenants' occupancy.

I.

We discern the following facts from the record, viewed in a light most

favorable to plaintiffs as the non-moving parties. Brill v. Guardian Life Ins. Co.

of Am., 142 N.J. 520, 540 (1995).

Defendant Edward Gnoinski leased a second-floor apartment to plaintiffs

Alisa Jennings and John E. Georgas. The parties agreed the lease's term ran

from September 1, 2016 to September 1, 2017, although the lease's stated term

ended August 1, 2017 and began August 1, 2016, when the parties executed the

lease.1 The rent was $1,000 a month.

On March 24, 2017, Gnoinski's lawyer informed the tenants, in a letter

entitled "NOTICE OF NON RENEWAL," that "the Landlord does not agree to

renew the lease and that he intends to personally occupy the premises. " Stating

(erroneously) that the lease would expire on August 1, 2017, the lawyer

1
Although neither party explains the discrepancy in their statement of material
facts, we assume the lease's term shifted a month because the tenants' occupancy
was delayed. A handwritten annotation on the printed lease in the record states,
"Sept 1 to Sept 1 We Did Not Get In Until August 31st. No Key Till Sept 1st."
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"demanded" that the tenants "vacate the premises and return possession of the

premises to Landlord on or before the end of the day, August 1, 2017."

In June 2017, apparently after a meeting in court (the reasons for the

appearance are not explained), Gnoinski's lawyer sent the tenants another letter.

That one stated, "You mentioned in Court that you were not planning on moving

by August 1, 2017. You were advised pursuant to New Jersey Statute that Mr.

Gnoinski was planning on personally occupying the apartment on August 1,

2017." The lawyer informed the tenants that "[p]ursuant to N.J.S.A. 2A:42-6,"

if they "continue[d] to occupy this apartment," they would "be charged twice the

market rental value" of the unit.

At some point between August and October — the date is not entirely

clear — Gnoinski filed a verified complaint for possession based on non-

payment of rent. The complaint is dated August 9, 2017. 2 It alleges that the

2
Gnoinski's statement of material facts states, and the tenants admit, that
Gnoinski filed a complaint for eviction "[o]n or before October 16, 2017." But
litigation evidently started well before mid-October. Georgas certified that he
"appeared in court for a Marini hearing on September 21, 2017." Under Marini
v. Ireland, 56 N.J. 130 (1970), "the breach of an implied warranty of habitability
or covenant to repair could be used by a tenant in defense of an eviction action
where defects have been asserted as a defense to nonpayment of rent or as a
basis for withholding of rental payments." Szeles v. Vena, 321 N.J. Super. 601,
607 (App. Div. 1999).

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tenants failed to pay rent in July and August. 3 The complaint states that

Gnoinski also sought possession for the additional reason that "[t]enants have

been given a 60 day notice in Court and by Certified Mail . . . that Landlord

would like to occupy the property for himself starting August 1, 2017."

Gnoinski's lawyer sent a third notice to quit, dated August 31, 2017. The

lawyer stated that the tenants currently had a month-to-month tenancy and "the

Landlord does not agree to renew your lease and that he intends to personally

occupy the premises." The lawyer demanded that the tenants vacate by 11:59

p.m. on October 31, 2017, and stated that if they failed to do so, an eviction

action would be filed. But, as we have noted, an eviction action was filed before

October 31.

According to Georgas, the parties appeared in court in September.

Georgas admits that he and Jennings failed to pay rent — he does not specify

for how long — but he alleges they withheld rent "[d]ue to the conditions in

3
Gnoinski's statement of material facts states that the tenants "breached the
lease due to non-payment of rent in October 2017." Although the tenants denied
the allegation, Gnoinski's statement may imply that the tenants ultimately paid
rent for the previous months. It simply is unclear from the record.
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[their] home." He alleges that in September 2017, the court ordered Gnoinski

to make repairs and ordered the release of the withheld rent. 4

But the parties' dispute continued, and trial on Gnoinski's summary

dispossess complaint was scheduled for October 31. On the day of trial, the

parties — all represented by counsel — reached a settlement. They entered a

consent judgment granting Gnoinski a judgment for possession, but permitting

the tenants to remain until January 31, 2018, provided they pay $1,000 that day

and another $1,000 by November 10, 2017. The consent judgment authorized a

warrant of removal that, the landlord agreed, could not be executed until January

31, 2018, unless the tenants failed to make the agreed payments.

The consent judgment said nothing about Gnoinski's previously-

announced intention to occupy the unit after October 31, 2017. Gnoinski later

certified that he abandoned his cause of action for eviction that was based on the

intention to occupy because his complaint was filed prematurely in the case of

the August 31, 2017 notice.5 In his statement of material facts, he alleged he

4
The transcripts of the court appearances in June and September are not before
us.
5
Gnoinski stated, inartfully, "I abandoned the 'for cause' course [sic] of action
as the Complaint was filed prior to the terminate [sic] of the 08/31/2019 [sic] in
the notice."
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"abandoned the count for 'for cause' eviction" for two reasons: first, "the

predicate notice was defective due to the acceptance of rent after the termination

date in the notice to quit," and second, "the predicate notice had not been

timely/properly served prior to filing of the Complaint; rendering the notice

defective." He asserted "the case was never adjudicated based upon the notice

to quit."

The tenants admitted the case was not adjudicated. They also stated they

"lack[ed] knowledge of why [Gnoinski] decided to settle." But they did not

address Gnoinski's allegation that he abandoned the eviction claim that was

based on his intention to occupy.

Georgas certified that he settled the eviction action mindful of "the August

31, 2017 notice, that the landlord wanted to live in the property starting October

31, 2017." He also understood that "the law allows the owner of a property to

live in his property." He said that Jennings and he "did not want to risk having

to move out in ten to twelve days" to let the landlord move in, "so we made a

deal to pay the rent and move out at the end of January 2018." Acknowledging

that Gnoinski's cause of action for possession based on the intention to occupy

was premature, Georgas certified, "We knew he could file a new case" for

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possession on that ground; "so that is why we entered the settlement that we

did."

The tenants quit the premises in January 2018 as the consent judgment

required. But the parties contest whether Gnoinski personally occupied the

premises for six months thereafter. Gnoinski certified that he lived there for six

months while renovating the apartment. He supplied photographs of his work

and a tax return stating he resided there. But Georgas certified that "for rent"

signs appeared "[s]oon after" he left, and "in March or April, 2018 it was obvious

that [a] younger couple moved in" and "remained [there] about a year."

In count one of their August 2019 complaint, Georgas and Jennings

alleged they vacated the apartment "as a result of" Gnoinski's notice that they

had to vacate because he intended to personally occupy the property, but then

Gnoinski "arbitrarily failed" to do so. In count two, Georgas and Jennings

alleged that Gnoinski's failure to move into the property violated the Consumer

Fraud Act. That claim was based on the theory that the notice to occupy was

fraudulent because Gnoinski never intended to occupy the property. Georgas

and Jennings sought treble damages and attorney's fees. Their attorney later

argued their damages consisted of a differential in rent they paid, moving

expenses, and storage fees.

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 In his answer, Gnoinski denied that the tenants vacated the property as a

result of Gnoinski's notice. Gnoinski alleged the notice was defective, and the

tenants consented to the judgment of possession "notwithstanding the allegation

in the [eviction] Complaint." To support Gnoinski's summary judgment motion,

his counsel argued that the notice to occupy was void, first, because the eviction

complaint was filed before the required sixty-day notice period elapsed, and

second, because the tenants agreed in the consent judgment to vacate after

enjoying occupancy for additional months with a rent discount.

The tenants' counsel responded that the consent judgment did not

withdraw Gnoinski's notice of intent to occupy, and the tenants were motivated

to settle on the consent judgment's terms because of Gnoinski's announced intent

to occupy. Counsel conceded that Gnoinski prematurely filed the cause of action

to evict on the basis of the intent-to-occupy notice and that Gnoinski would have

had to file a new complaint to pursue that cause of action. He stated that

Gnoinski probably could not secure possession on that ground until early

December. However, the consent judgment allowed the tenants to remain

through January by paying $2,000 of the $4,000 in rent due. Counsel could not

say "with any certainty" if Gnoinski's personal occupancy came up during the

settlement discussions.

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 In granting Gnoinski summary judgment, the trial court held that the

tenants could not "bypass a settled case after the notice was sent where the

settlement says nothing about retaining any rights against somebody you're

settling with . . . for these types of actions."

On appeal, the tenants contend that they did not waive their right to sue

under the Anti-Eviction Act or the Consumer Fraud Act when they entered their

consent judgment.

II.

Applying the same standard as the trial court in reviewing the grant of

summary judgment, see Henry v. N.J. Dep't of Hum. Servs., 204 N.J. 320, 330

(2010), we must determine if there is a "genuine issue as to any material fact"

and if Gnoinski "is entitled to a judgment . . . as a matter of law," R. 4:46-2(c).

"Not every issue of fact is material. In order to determine materiality, it is

necessary first to set forth the contours of the legal issue presented." Rowe v.

Mazel Thirty, LLC, 209 N.J. 35, 41 (2012) (citation omitted).

The legal issue is whether Gnoinski was bound by his notice that he

intended to occupy the tenants' apartment, such that his failure to occupy

triggered a right to relief under the Anti-Eviction Act or the Consumer Fraud

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Act. If the answer to that question is no, then the parties' dispute over whether

Gnoinski actually occupied the apartment, even if genuine, is not material.

A.

We turn first to the tenants' claim under the Anti-Eviction Act. As we

noted at the outset, the Anti-Eviction Act permits a court to evict a tenant if the

owner of a building with up to three residential units "seeks to personally occupy

[the] unit." N.J.S.A. 2A:18-61.1(l)(3). But the landlord must first provide

written notice and a demand for possession "two months' . . . prior" to instituting

the action. N.J.S.A. 2A:18-61.2(f). Also, before suing, the landlord must wait

until the lease, if any, expires. Ibid. And "[w]here a tenant vacates the premises

after being given" such notice, "and the owner thereafter arbitrarily fails to

personally occupy the premises for a total of at least six months," the "owner

shall be liable to the former tenant in a civil action for three times the damages

plus the tenant's attorney fees and costs." N.J.S.A. 2A:18-61.6(a).

Plainly, the statute is phrased in chronological terms, that is, a cause of

action arises if the tenant vacates "after" receiving the landlord's notice of intent

to occupy and the landlord then arbitrarily fails to occupy. But the Legislature

intended more than a chronological relationship between the notice and the

tenants' action; the Legislature intended a causal link. See S. Cnty & Mun. Gov't

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Comm. Statement to A. 3570 (OCR), 4 (Nov. 24, 1975) (stating that the statute

"imposes a personal liability on owner . . . to pay damages to any tenant evicted

for purposes of owner occupancy, if . . . [the] owner . . . arbitrarily fails to

effectuate the occupancy for a total of 6 months" (emphasis added)). The treble

damage provision is designed to penalize landlords who use "as a pretext" the

right to occupy premises to terminate tenancies. Hale v. Farrakhan, 390 N.J.

Super. 335, 342 (App. Div. 2007) (stating "the specific purpose of the wrongful

eviction causes of action created by N.J.S.A. 2A:18-61.6 is to protect tenants

against pretextual evictions"). Thus, a tenant who vacates an apartment for

reasons other than a landlord's prior notice of intent to occupy has no claim for

damages, even if the landlord arbitrarily fails to occupy the premises thereafter.

Put another way, to maintain a cause of action against a landlord for arbitrarily

failing to fulfill an announced intent to occupy, a tenant must vacate the

premises in accord with the landlord's notice or an order of eviction enforcing

that notice.

Here, the tenants did not vacate the premises because of, or in compliance

with, the August 31 notice or any of the previous notices. The March and June

notices demanded that the tenants leave by August 1, which they refused to do.

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Likewise, the tenants did not leave on October 31, as Gnoinski's attorney

demanded in his August 31 notice.

Furthermore, Gnoinski effectively withdrew his notice of intent to occupy

by entering into the consent judgment. A consent judgment is "in the nature of

a contract entered into with the solemn sanction of the court." Cmty. Realty

Mgmt., Inc. ex rel Wrightstown Arms Apartments v. Harris, 155 N.J. 212, 226

(1998) (quoting Stonehurst at Freehold, Section One, Inc. v. Twp. Comm. of

Freehold, 139 N.J. Super. 311, 313 (Law Div. 1976)). Its "adjudicative effect"

is equal to a judgment "entered after trial or other judicial determination." Ibid.

(quoting Stonehurst at Freehold, 139 N.J. Super. at 313). 6 And like any contract,

its interpretation "is a legal matter ordinarily suitable for resolution on summary

judgment." EQR-LPC Urb. Renewal N. Pier, LLC v. City of Jersey City, 452

N.J. Super. 309, 319 (App. Div. 2016), aff'd o.b., 231 N.J. 157 (2017).

The consent judgment here — which has the adjudicative effect of a

judgment of possession after a summary dispossess trial — did not grant

possession "for purposes of owner occupancy." S. Cnty & Mun. Gov't Comm.

6
When an unrepresented tenant enters a consent judgment for possession, the
court must "review it in open court" to assure the tenant has entered it knowingly
and voluntarily. See R. 6:6-4(a); Pressler & Verniero, Current N.J. Court Rules,
cmt. on R. 6:6-4 (2021).
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Statement to A. 3570 (OCR), at 4. Had it done so, possession would have been

granted to Gnoinski long before January 31. Rather, the parties to the consent

judgment contractually agreed that Gnoinski would not occupy the unit after

October 31; rather, the tenants would. Gnoinski previously sought occupancy

by November 1, but he and the tenants agreed that Gnoinski would abandon that

plan by permitting the tenants to remain in the apartment until January 31.

Although Gnoinski could have avoided controversy by expressly withdrawing

his August 31 notice, or by including in the consent judgment an explicit release

of any wrongful eviction claim based on his non-occupancy, we are convinced

the notice became a dead letter when the parties entered the consent judgment

extending the tenants' occupancy.

Viewed through a different lens, by entering into the consent judgment,

Gnoinski waived his right to secure possession based on his occupancy, and the

tenants waived their right to damages if Gnoinski did not occupy. We recognize

that "acceptance of payment after a notice to quit provides merely evidence of

waiver which nevertheless remains a question of intent," Jasontown Apartments

v. Lynch, 155 N.J. Super. 254, 263 (App. Div. 1978), but we discern no genuine

issue of the parties' intent. According to the consent judgment, Gnoinski

relinquished his right to occupy the apartment on November 1. Likewise, the

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tenants relinquished their right to damages by securing the right to occupy the

apartment instead of Gnoinski. In Montgomery Gateway East I v. Herrera, 261

N.J. Super. 235, 240 (App. Div. 1992), we held that "the granting of a new lease

and acceptance of rent in that new term is so inconsistent with an intention to

require a surrender of possession of the premises as to amount to an election to

waive the right to terminate the tenancy because of the past rent defaults."

Likewise, here, the parties' agreement to extend the tenants' term for three

months beyond the notice's termination date and proposed personal occupancy

amounted to a mutual waiver.

It is of no moment that the tenants were motivated to settle by the risk that

Gnoinski could secure their eviction by filing a new eviction complaint sixty

days after the August 31 notice ripened. Gnoinski did not do so. And, as tenants'

counsel conceded, the August 31 notice had not yet triggered a right to evict

when the parties entered the consent judgment. The Anti-Eviction Act creates

a cause of action for wrongful eviction, not hypothetical eviction.

In sum, we affirm the trial court's order granting Gnoinski summary

judgment on the tenants' claim under N.J.S.A. 2A:18-61.6(a).

B.

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 We turn next to the tenants' Consumer Fraud Act claim. Among other

things, the Consumer Fraud Act declares unlawful "any . . . deception, fraud,

false pretense, false promise, [or] misrepresentation . . . in connection with the

sale" — which includes "any . . . rental," N.J.S.A. 56:8-1(e) — "of any . . . real

estate." N.J.S.A. 56:8-2; see 49 Prospect St. Tenants Ass'n v. Sheva Gardens,

Inc., 227 N.J. Super. 449, 465 (App. Div. 1988) (applying the Consumer Fraud

Act to a residential landlord).7 Proof of intent to deceive is not required in the

case of an affirmative act. Cox v. Sears Roebuck & Co., 138 N.J. 2, 17-18

(1994).

To assert a private cause of action, a plaintiff must show that the unlawful

conduct caused harm, but "causation under the [Consumer Fraud Act] is not the

equivalent of reliance." Lee v. Carter-Reed Co., 203 N.J. 496, 522 (2010). "To

establish causation, a consumer merely needs to demonstrate that he or she

7
We do not address the issue — because Gnoinski does not raise it — of
whether his involvement in real estate was too insignificant to subject him to the
Consumer Fraud Act. See Sheva Gardens, 227 N.J. Super. at 465 (stating "there
may be some question" regarding the Consumer Fraud Act's applicability "to the
isolated rental of an apartment in a two-family house"); Heyert v. Taddese, 431
N.J. Super. 388, 413 (App. Div. 2013) (applying the Consumer Fraud Act to an
owner of "at least three two-family homes" with rental units); 539 Absecon
Boulevard, L.L.C. v. Shan Enters. Ltd. P'ship, 406 N.J. Super. 242, 274-75 (App.
Div. 2009) (reviewing authority that the Consumer Fraud Act does not "apply
to the isolated sale by a homeowner of a single-family home" or "non-
professional sellers of real estate").
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suffered an ascertainable loss 'as a result of' the unlawful practice." Ibid.

(quoting N.J.S.A. 56:8-19). A plaintiff who suffers such an ascertainable loss

is entitled to treble damages plus "reasonable attorneys' fees, filing fees and

reasonable costs of suit." N.J.S.A. 56:8-19.

Here, the tenants contend that Gnoinski committed an unlawful act under

the statute by falsely stating he intended to occupy the premises when he actually

had no such intention. "A failure to fulfill a promise may constitute a breach of

contract, but it is not fraud and the non-performance of that promise does not

make it so." Barry v. N.J. State Highway Auth., 245 N.J. Super. 302, 310 (Ch.

Div. 1990). But "[s]uch conduct is a misrepresentation . . . if the promisor knew

when he [or she] made it that the promise could not or would not be fulfilled."

Ibid.

But even if Gnoinski never intended to occupy the tenants' apartment

when he told the tenants in March, June, and August to leave so he could move

in, Gnoinski effectively withdrew his expression of intent by agreeing in the

consent judgment to the tenants' continued occupancy. Gnoinski's statements of

intent to occupy did not cause the tenants an ascertainable loss because they did

not vacate the premises in response to Gnoinski's statement. Rather, they

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remained past each of Gnoinski's deadlines, and they vacated the premises only

after enjoying three months of additional occupancy, with a discounted rent.

Therefore, we affirm the trial court's order granting Gnoinski summary

judgment on tenants' Consumer Fraud Act claim.

Affirmed.

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