NOT FOR PUBLICATION WITHOUT THE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-3555-15T2
MIRFAT DAHER,
Plaintiff-Respondent,
v.
ANDIAMO RESTAURANT and
HAZEM SHALBY,
Defendants-Appellants.
_____________________________
Submitted March 27, 2017 – Decided June 15, 2017
Before Judges Haas and Currier.
On appeal from the Superior Court of New
Jersey, Law Division, Special Civil Part,
Passaic County, Docket No. LT-1945-16.
Steven C. Schechter, attorney for appellant.
Respondent has not filed a brief.
PER CURIAM
Defendants, Andiamo Restaurant and Hazem Shalby, appeal from
the April 4, 2016 judgment of possession and denial of the motion
to transfer the case to the Law Division. Because plaintiff Mirfat
Daher was not the owner of the property, and therefore, had no
cognizable right to assert an eviction action, we reverse and
remand for the entry of a dismissal of the eviction proceeding.
This action arises from a dispute concerning the alleged non-
payment of rent for premises owned by Jolly Clifton, LLC. In
2012, Jolly Clifton leased the property to Yummy Restaurant, LLC.
Yummy Restaurant was owned by plaintiff and her husband Jehad.1
In 2015, plaintiff and her husband entered into a business
transaction with Shalby and his partner, selling them the liquor
license and the restaurant located on the premises owned by Jolly
Clifton. Shalby intended to open Andiamo Restaurant. The parties
also entered into a fifteen-year sublease agreement under which
Andiamo Restaurant was required to pay monthly rent. Although
defendants believed the rent was going to the owner of the
premises, Jolly Clifton was unaware of the existence of this
sublease and never received any of the payments defendants made
to plaintiff.
On March 2, 2016, Jolly Clifton commenced an eviction
proceeding for the non-payment of rent against plaintiff, Jehad,
Yummy Restaurant, and defendants in the Special Civil Part. Jolly
Clifton asserted that the subtenancy between plaintiff and
defendants was not valid. Jolly Clifton further stated that its
1
To avoid confusion among the family members, we refer to them
by their first names, intending no disrespect.
2 A-3555-15T2
lease with Yummy Restaurant prohibited any sublease of the premises
without first providing notice to Jolly Clifton. As a result of
this action, and learning for the first time that Yummy and
plaintiff were not paying rent to Jolly Clifton, defendants stopped
making rent payments to Yummy Restaurant.
On March 7, 2016, defendants filed a complaint in the Law
Division against Jehad, Yummy Restaurant, and Jolly Clifton,
seeking a declaratory judgment as to their rights in the property,
the validity of the sublease and seeking reformation of the
sublease. On March 8, plaintiff filed the instant tenancy action
in the Special Civil Part, seeking to evict defendants for non-
payment of rent. In response, defendants filed a motion to
dismiss, or in the alternative, to transfer the action to the Law
Division and consolidate the matter with the pending Law Division
proceeding.
On April 4, 2016, both eviction proceedings were heard at the
same time. A representative of Jolly Clifton testified that it
was the owner and landlord of the premises, and that there was a
lease in effect between Jolly Clifton and Yummy Restaurant. Yummy
had stopped making payments under the lease. Jolly Clifton was
not notified that plaintiff had entered into a sublease with
defendants.
3 A-3555-15T2
Plaintiff presented testimony as to her eviction complaint
against defendants. According to her, she had prepared the
sublease herself and her name was used as the sublessor, not Yummy
Restaurant, in the sublease of the premises to defendants. Counsel
for plaintiff stipulated that plaintiff did not own the property.
After reviewing both the Jolly Clifton lease and plaintiff's
sublease and hearing some testimony, the Special Civil Part judge
denied the motion to transfer the matter to the Law Division and
entered a judgment of possession in favor of plaintiff, awarding
her the unpaid rent. The judge determined that the lease and
sublease established "much more than just a sublease. It's really
a business relationship." In reaching her decision, the judge
reasoned that "there's no need to transfer [this case] to the Law
Division . . . . This is just a simple nonpayment of rent case.
And that's what we do here in Landlord/Tenant Court."
On appeal, defendants contend that the Special Civil Part
lacked statutory jurisdiction to enter a judgment for possession
against them and was required to dismiss the action, the judge
should have transferred the case to the Law Division, and
defendants were deprived procedural due process.
We review this matter de novo, and therefore, owe no deference
to the trial judge's legal conclusions. Manalapan Realty, L.P.
v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
4 A-3555-15T2
N.J.S.A. 2A:18-512 mandates that only an "owner or his duly
authorized agent, assignee or grantee" can institute a tenancy
action to recover possession of the property. If the proponent
of a tenancy action cannot prove "his right to the possession of
the premises . . . the cause shall be dismissed."3 N.J.S.A. 2A:18-
52 (emphasis added).
2
If real estate is leased by an agent of the
owner thereof, in his own name or as agent,
the owner, his assignee or grantee may
terminate the tenancy as the agent might do.
The owner or his duly authorized agent,
assignee or grantee may institute and maintain
proceedings to recover the possession or the
rentals thereof in their own names or in the
name of the former agent, in the same manner
and with the same effect as though the real
estate had been leased in their own names.
[N.J.S.A. 2A:18-51].
3
If upon trial of a landlord and tenancy
proceeding the plaintiff shall not be able to
prove, by lease or other evidence, his right
to the possession of the premises claimed by
him without proving title to lands, tenements
and hereditaments, the cause shall be
dismissed, provided however that an assignee
or grantee of a landlord may, at the trial or
hearing, offer in evidence a deed or other
writing for the purpose of showing the
assignment or grant by the landlord.
[N.J.S.A. 2A:18-52].
5 A-3555-15T2
Here, plaintiff was not the owner of the subject premises nor
was she the "duly authorized agent, assignee or grantee" of owner
Jolly Clifton. N.J.S.A. 2A:18-51. Plaintiff's counsel stipulated
that plaintiff did not own the real estate. Yummy Restaurant was
the lessor of the property and it was undisputed that Yummy
Restaurant did not sublease the property to defendants. Moreover,
plaintiff had no authority under Yummy's lease with Jolly Clifton
to sublet the property. The judge erred in her decision to broaden
the meaning of the lease documents. Plaintiff had no legal right
under N.J.S.A. 2A:18-52 to evict defendants.
Therefore, we reverse the Special Civil Part's judgment of
possession and remand for the entry of a dismissal of the eviction
proceeding. We do not retain jurisdiction.
6 A-3555-15T2