WASHINGTON STREET APARTMENTS VS. SHANA GOODMAN (LT-22712-19, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-1582-20
WASHINGTON STREET
APARTMENTS,
Plaintiff-Respondent,
v.
SHANA GOODMAN,
Defendant-Appellant.
_______________________
Argued May 24, 2021 – Decided June 25, 2021
Before Judges Messano, Hoffman and Smith.
On appeal from the Superior Court of New Jersey,
Special Civil Part, Essex County, Docket No. LT-
22712-19.
Felipe Chavana argued the cause for appellant (Essex-
Newark Legal Services, attorneys; Sharie A. Robinson,
Maria D. Castruita and Felipe Chavana, on the briefs).
Bruce E. Gudin argued the cause for respondent
(Ehrlich, Petriello, Gudin, Plaza & Reed, PC, attorneys;
Bruce E. Gudin and Erin Enhlich Caro, on the brief).
PER CURIAM
On March 19, 2020, as the State braced for the full effect of the anticipated
COVID-19 pandemic, Governor Philip D. Murphy issued Executive Order 106
(EO 106) which stayed the "enforcement of all judgments for possession,
warrants of removal, and writs of possession . . . unless the court determines on
its own motion or motion of the parties that enforcement is necessary in the
interest of justice." Exec. Order No. 106 (Mar. 19, 2020), 52 N.J.R. 553(a) (Apr.
6, 2020) (emphasis added). Chief Justice Rabner issued the Court's second
Omnibus Order on March 27; it cited EO 106 and specifically suspended
"lockouts of residential tenants (evictions)." Sup. Ct. of N.J., Second COVID-
19 Omnibus Order (Mar. 27, 2020).
In July, Judge Glenn A. Grant, Acting Director of the Administrative
Office of the Courts (AOC), issued Directive #20-20 (the Directive), which was
intended to "implement[] a multifaceted plan for improving the handling of
Landlord/Tenant (LT) cases from the outset, including by providing litigants
with information and resources." Administrative Directive #20-20, "Special
Civil Part – Landlord/Tenant Matters during COVID-19" (July 28, 2020). The
Directive specifically noted that the Court's July 14, 2020 Seventh Omnibus
Order "amended LT processes during COVID-19 by allowing
plaintiffs/landlords to seek an LT trial based on emergent circumstances," and
permitting a court to "order an eviction in the 'interests of justice.'" The
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Directive noted that non-payment of rent would not justify a trial unless the
tenant had died, but it provided a non-exhaustive list of "grounds" that "may
constitute emergent circumstances justifying an LT trial." One such ground was
N.J.S.A. 2A:18-61.1(b), which permits the eviction of a residential tenant if
"[t]he person has continued to be, after written notice to cease, so disorderly as
to destroy the peace and quiet of the occupants or other tenants living in said
house or neighborhood." The Directive advised judges to "take into
consideration the circumstances of each case in determining whether a trial is
warranted," and it included a sample Order to Show Cause form that courts
should use when deciding to conduct an LT trial based on emergent
circumstances.
Defendant Shana Goodman is a tenant in a multi-family, federally
subsidized residential property owned by plaintiff Washington Street
Apartment. The litigation that gave rise to this appeal commenced well in
advance of the issuance of EO 106, the Court's Omnibus Orders, and the
Directive. In September 2019, the parties appeared in court on plaintiff's
eviction complaint alleging defendant violated her lease by allowing her dog to
bark "at various times throughout the day and night, every day of the week . . .
disturbing the peace and quiet of other occupants." Unable to mediate the
dispute, plaintiff asked for and received an adjournment to secure the presence
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of its witnesses, but defendant failed to appear on the new trial date, September
26, 2019. The court issued a judgment for possession and a warrant of removal
issued thereafter.
Defendant filed an order to show cause, and the parties appeared in court
again on October 16, 2019. They negotiated a stipulation of settlement in which
defendant agreed to the issuance of a warrant for removal if she were in default
or in breach of the stipulation, a specific condition of which was that defendant
"prevent excessive barking from service animal, with all but incidental barking
not recurring after 7:00 [p.m.] Mon[day] — Sun[day]."
In February 2020, plaintiff moved for the issuance and execution of a
warrant of removal based on defendant's breach of the stipulation. The motion
was supported by the certification of a tenant who claimed defendant's dog had
barked incessantly throughout the weekend, thereby disturbing her peaceful
enjoyment of her apartment. Defendant did not respond to the motion, and the
judge issued another warrant for removal on February 28, 2020. Plaintiff was
unable to execute the warrant prior to the issuance of EO 106, and defendant
remained in the premises with her dog.
In November 2020, plaintiff filed a motion seeking a warrant for removal
pursuant to the "interests of justice" standard in EO 106 and the Directive. The
motion was supported by a certification from a neighboring tenant, Karim
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Sharif, that said defendant's dog barked incessantly "at all hours of the day and
night" disturbing his peaceful enjoyment of the premises. On December 30,
2020, the judge issued an order to show cause on plaintiff's application for a
warrant of removal returnable January 13, 2021. 1 Pursuant to the terms of the
order, plaintiff personally served it on defendant.
Defendant failed to appear. The judge considered the testimony of Sharif.
He lived on the same floor as defendant on the other side of the elevator bank.
Defendant's dog was left alone in the apartment and constantly barked from 7
p.m. to "as early as 6 a.m." Sharif estimated this occurred six days a week. He
spoke with defendant "on several occasions" about the barking, which caused
him to spend most of his time in his bedroom, not his living room, but "she just
doesn't care." Sharif said that defendant would knock on his door when she was
"intoxicated" and admit the dog barked whenever she was not in the apartment .
But, defendant claimed, "I have no control over it. It's out of my control."
1
The order modified the form order attached to the Directive, which, as noted
already, was intended to apply to an application by a landlord to conduct an "LT
trial," and for the court to use in scheduling such trial. The preliminary language
in the form order was therefore inapplicable to the facts of this case. Most
importantly, like the form order, the order entered by the judge in this case
contained all the salient provisions of the form order, including that it be
personally served upon defendant.
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In response to the judge's questioning, Sharif acknowledged making
complaints to the building manager in the past, and that he had stayed in the
apartment for many months after first complaining about the barking. He
explained that he "love[d]" his apartment, did not want to move, "[a]nd . . .
would complain for another year if that's what it took for [him] to come before
a [j]udge to express what [he has] been going through for the last year and a
half." The judge asked Sharif when he last complained to defendant about the
dog; Sharif said it occurred "about two weeks ago." Then, defendant knocked
on his door, told him she was going out and had no control over the dog's
barking. Defendant unleashed a string of expletives and told Sharif "[s]he didn't
have a concern in the world about [his] complaint, because nothing would be
done."
After considering plaintiff's counsel's argument, the judge issued an oral
decision. He found Sharif to be a "very credible witness" and defendant's dog
barked "every time the dog is left alone." The judge recounted the prior history
of the litigation and the terms of the stipulation. He noted, "This is a building
where there are multi-tenants and the [c]ourt has to ensure that the other tenants
can live in the building." The judge found defendant violated the stipulation and
that a judgment for possession should issue "in the interest of justice." He noted
Sharif "ha[d] been putting up with this for over a year . . . [and defendant] was
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notified about the situation, and she hasn't taken any steps to fix the situat ion."
The judge entered the January 13, 2021 order granting plaintiff's request for a
warrant of removal to issue and be executed "in the interests of justice without
delay."
Defendant apparently sought an order to show cause because the judge
reconvened a virtual hearing on January 26. 2 Defendant appeared pro se, and
plaintiff's counsel appeared with the building manager, Tracy Carr.
Defendant explained the dog was a "service dog," which she took in when
defendant's mother passed away two years earlier. Defendant denied ever
getting notice of plaintiff's December 2020 motion for an order to show cause,
even though plaintiff filed a certification indicating defendant was personally
served. Defendant claimed any barking was from another dog on her floor. She
was with her dog "24/7," and the dog accompanied her whenever she left the
apartment. Defendant testified the dog did not bark "too much."
During the hearing, the dog began to bark, and defendant explained the
bark was "low" and only occurred because defendant was "at the door." She
stated that the dog "barks when she hears people in the hallway . . . the elevator,
somebody making a lot of noise or [if] we come in the door . . . ." Defendant
2
The appellate record does not include any pleading that resulted in the January
26, 2021 hearing.
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claimed Sharif was "lying" about the frequency of the dog's barking. The judge
asked why the dog was still barking, and defendant explained, "Because I left
out and she wanted to come with me."
Carr was placed under oath and testified that she had received several
complaints about the dog from tenants in the building. Plaintiff had not accepted
any rent from defendant for more than one year while the action was pending.
Carr said she had spoken with defendant about the problem in March 2020,
something defendant acknowledged.
Defendant then brought an unidentified fellow tenant into the proceeding,
who said she heard the dog barking at night; another unidentified tenant said she
had been sleeping and the dog's barking did not bother her.
The judge concluded that defendant had violated the stipulation. He found
that defendant essentially admitted being unable to keep the dog from barking,
which was consistent with Sharif's claim that defendant told him there was
nothing she could do about the problem. The judge explained that although
defendant thought the dog's barking was not a problem, "the dog does bother
people." He entered an order staying execution of the warrant of removal
previously entered until February 26, 2021. Defendant filed an emergent
application for a stay pending appeal, which we granted, and we accelerated the
appeal.
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Our standard of review following a bench trial is well-known.
Final determinations made by the trial court
sitting in a non-jury case are subject to a limited and
well-established scope of review: "we do not disturb the
factual findings and legal conclusions of the trial judge
unless we are convinced that they are so manifestly
unsupported by or inconsistent with the competent,
relevant and reasonably credible evidence as to offend
the interests of justice[.]"
[Seidman v. Clifton Sav. Bank, SLA, 205 N.J. 150, 169
(2011) (alteration in original) (quoting In re Trust
Created By Agreement Dated December 20, 1961, ex.
rel. Johnson, 194 N.J. 276, 284 (2008)).]
In reviewing the judge's findings, "[w]e do not weigh the evidence, assess the
credibility of witnesses, or make conclusions about the evidence." Mountain
Hill, LLC v. Twp. of Middletown, 399 N.J. Super. 486, 498 (App. Div. 2008)
(alteration in original) (quoting State v. Barone, 147 N.J. 599, 615 (1997)).
However, we owe no deference to the judge's interpretation of the law and the
legal consequences that flow from established facts. Manalapan Realty LP v.
Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (citing State v. Brown,
118 N.J. 595, 604 (1990)).
Before us, defendant contends her due process rights were violated
because the proceedings "did not satisfy the special interests of justice
exception" in EO 106, the Court's Omnibus Order and the Directive. As we
understand the argument, defendant contends the judge failed to explain why
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"this case of a six-pound barking dog" satisfied the exception, or that plaintiff
satisfied the notice requirements of the Directive's form order. She notes
plaintiff's counsel was surprised that the hearing took place on January 13, 2021,
having received a "postcard" that there would not be oral argument.
Although the judge did not take note of defendant's absence prior to the
start of the January 13, 2021, he had before him plaintiff's certification that
defendant had been personally served with the Order to Show Cause as required
by the Directive. He also knew that defendant had failed to respond. Plaintiff's
counsel's stray remark about a postcard is otherwise undeveloped by the record,
but the fact remains that the judge conducted the hearing after plaintiff
demonstrated compliance with the Directive, including express notification of
the significant potentially adverse consequences of the proceeding for
defendant.
The judge's factual findings following Sharif's testimony were extensive
and his oral decision, when fairly read in its entirety, reflects his understanding
of the terms of EO 106, the Court's Omnibus Orders, and the Directive. But
judges are required to do more.
Rule 1:7-4(a) requires judges to provide not only factual findings, but also
to "state [their] conclusions of law thereon." "Naked conclusions do not satisfy
the purpose of R. 1:7-4." Curtis v. Finneran, 83 N.J. 563, 570 (1980). Here, at
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the first hearing, the judge said little more than that the facts satisfied the
interests of justice exception to the moratorium. He failed to explain why, and
we could remand the matter for the judge to provide a more fulsome explanation.
See, e.g., Slutsky v. Slutsky, 451 N.J. Super. 332, 358 (App. Div. 2017)
(remanding for findings and analysis).
However, we believe that is unnecessary because it is apparent that the
judge implicitly recognized what might constitute an emergency situation
justifying relief from the moratorium. The Directive itself used a violation of
the peaceable enjoyment of the premises by other tenants as an example.
Moreover, the judge was completely familiar with the procedural history of the
matter, which commenced more than fifteen months earlier and resulted in a
stipulated settlement that defendant allegedly violated on the same grounds that
supported the original complaint and judgment for possession.
Defendant also argues that the judge should "have afforded her a de novo
hearing" by vacating the judgment for possession entered after the January 13,
2021 hearing and providing her with the opportunity to cross-examine Sharif.
The failure to do so, defendant claims, violated her due process rights. See, e.g.,
In re Request to Modify Prison Sentences, 242 N.J. 357, 369 (2020) ("At a
minimum, due process requires notice and an opportunity to be heard." (quoting
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Doe v. Poritz, 142 N.J. 1, 106 (1995))). The contention is premised on the claim
that defendant "established that she had lacked notice of the earlier proceeding."
Certainly, the judge made no such finding and, it is fair to say that the
judge found most of defendant's testimony lacked credibility. Additionally, the
judge had plaintiff's certification of personal service on defendant. In response
to the judge's inquiry about being served on December 30, 2020, and whether
she was home to receive the motion papers, defendant said, "I can't really
remember that[,] but I know I didn't receive any court papers. . . . I would have
addressed the matter, like . . . when I got this [warrant for removal] on my door."
However, the procedural history we set forth in detail belies defendant's
assertion that she always responded to notices of court proceedings.
Moreover, the judge considered defendant's testimony which, strictly
speaking, did not refute Sharif's. Defendant acknowledged the dog barked when
she was not in the apartment, when people were in the hallways, when the
elevators ran, or when she entered the apartment. Indeed, the dog began barking
during the hearing and both unidentified neighbors who defendant solicited
acknowledged the dog's barking. As the judge noted, defendant's belief that her
dog did not create a disturbance reflected a "difference of opinion" from other
tenants, notably, Sharif, who the judge found credible.
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Lastly, defendant claims we should reverse because the judge failed to
consider the hardship to her and her two children if she were to be evicted. That
dilemma is, unfortunately, all too familiar to judges who preside over LT
matters. However, the equities to be balanced in this case were intrinsic in the
judge's obligation to decide whether plaintiff established relief from the
moratorium was "in the interests of justice." The judge considered the effect of
defendant's actions on other tenants in the building. We find no reason to
reverse.
The stay we previously issued is vacated, and the matter is remanded to
the trial court to re-issue the warrant of removal and permit its execution under
terms the court deems appropriate.
Affirmed and remanded. We do not retain jurisdiction.
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