HERITAGE HOUSE VS. WILLIAM GIBBS (LT-006294-17, ESSEX COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-4123-16T3
HERITAGE HOUSE,
Plaintiff-Respondent,
v.
WILLIAM GIBBS,
Defendant-Appellant.
____________________________
Submitted October 11, 2018 – Decided October 22, 2018
Before Judges Simonelli and Whipple.
On appeal from Superior Court of New Jersey, Law
Division, Special Civil Part, Essex County, Docket No.
LT-006294-17.
William Gibbs, appellant pro se.
Gaccione Pomaco, PC, attorneys for respondent
(Anthony G. Del Guercio, of counsel and on the brief).
PER CURIAM
In this landlord-tenant matter, defendant William Gibbs appeals from the
March 8, 2017 judgment for possession, and the April 24, 2017 order for a
hardship stay. We affirm.
On October 24, 2016, plaintiff served defendant with a notice to quit,
which alleged that defendant caused damage to plaintiff's personal property and
assaulted plaintiff's employee. The notice to quit terminated defendant's tenancy
on December 1, 2016. Plaintiff subsequently filed a complaint for possession,
which plaintiff voluntarily dismissed without prejudice with the intent of re-
serving a notice to quit and reinstituting the eviction process.
On December 7, 2016, plaintiff served defendant with a notice to quit,
which alleged the same wrongful conduct as the first notice to quit. On February
10, 2017, plaintiff filed a complaint for possession. At trial, defendant admitted
to the conduct alleged in the notice to quit and raised no defenses. The court
entered the judgment for possession and subsequently issued a warrant of
removal, authorizing defendant's eviction on April 3, 2017.
Defendant filed an order to show cause, requesting a hardship stay of
eviction. Over plaintiff's objection, the court entered the order for a hardship
stay, staying the eviction until June 1, 2017. Defendant sought no further relief,
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including a stay pending appeal. Defendant was locked out on June 5, 2017.
Prior to the lockout, defendant removed all of his personal property from the
property and voluntarily left the premises, rendering the lockout a mere
formality. Plaintiff has leased the property to another tenant since July 10, 2017.
On appeal, defendant argues that plaintiff could not proceed with the
second complaint for possession because the first complaint was dismissed and
there was no indication it was dismissed without prejudice. Defendant did not
raise this issue before the trial court. Generally, we decline to consider issues
not raised to the trial court where, such as here, they are not jurisdictional in
nature and do not substantially implicate the public interest. Zaman v. Felton,
219 N.J. 199, 226-27 (2014) (citation omitted); R. 2:6-2. Nevertheless, we
address this meritless argument.
The voluntary dismissal of a complaint, unless otherwise stated in the
notice or stipulation of dismissal, constitutes a dismissal without prejudice. R.
4:37-1(a); see Woodward-Clyde Consultants v. Chemical and Pollution
Sciences, Inc., 105 N.J. 464, 472 (1987). The clerk's notice does not specify
that the first complaint was dismissed with prejudice. Thus, the complaint is
deemed to have been dismissed without prejudice. "[A] dismissal without
prejudice 'generally indicate[s] that "there has been no adjudication on the merits
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of the claim, and that a subsequent complaint alleging the same cause of action
will not be barred simply by reason of its prior dismissal.'" A.J. Cornblatt, PA
v. Barow, 153 N.J. 218, 243 (1997) (second alteration in original) (quoting
Velasquez v. Franz, 123 N.J. 498, 509 (1991) (citation omitted)). Accordingly,
plaintiff could proceed with the second complaint.
Affirmed.
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