ORANGE SENIOR CITIZENS RESIDENCE, LLC VS. PAULETTE DAVIS (LT-32251-16, 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NOT FOR PUBLICATION WITHOUT THE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-1841-16T3
ORANGE SENIOR CITIZENS
RESIDENCE, LLC,
Plaintiff-Respondent,
v.
PAULETTE DAVIS,
Defendant-Appellant.
_______________________________
Argued May 3, 2018 – Decided July 11, 2018
Before Judges Haas, Rothstadt, and Gooden
Brown.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No. LT-
32251-16.
Felipe Chavana argued the cause for
appellant (Essex-Newark Legal Services,
attorneys; Maria D. Castruita and Felipe
Chavana, on the briefs).
Bruce E. Gudin argued the cause for
respondent (Ehrlich, Petriello Gudin &
Plaza, PC, attorneys; Matthew A. Sebera, on
the brief).
PER CURIAM
In this summary dispossess action, defendant-tenant
Paulette Davis appeals from the Special Civil Part's December
12, 2016 Judgment of Possession entered in favor of her
landlord, plaintiff Orange Senior Citizens Residence, LLC,
pursuant to N.J.S.A. 2A:18-61.1(c), which permits the removal of
a tenant who has willfully or by reason of gross negligence
caused or allowed destruction, damage, or injury to the
premises. Defendant argues that the trial judge failed to make
"the requisite findings . . . as to how [d]efendant's conduct
met the elements of gross negligence necessary to support the
entry of judgment under N.J.S.A. 2A:18-61.1(c)." Because we
conclude defendant's conduct did not meet the requirements of
N.J.S.A. 2A:18-61.1(c), we reverse.
The following facts are summarized from the bench trial
conducted on December 7 and December 12, 2016, and are generally
undisputed. Plaintiff is the owner and operator of the
"federally subsidized housing complex" where defendant has lived
since 2003. The complex's 132 housing units are available for
lease to elderly tenants. Defendant is currently sixty-eight
years old. She developed epilepsy at age three, and, as a
result, suffers from depression and memory loss. In 1991, she
underwent a "right temporal lobectomy," which further
exacerbated her memory loss.
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On October 3, 2016, at approximately 12:30 a.m., a security
guard at the complex noticed water flooding the stairs of the
facility and notified the building superintendent, Lincoln
Johnson. They traced the water back to defendant's second-floor
apartment and found she had fallen asleep with her kitchen
faucet running into a stopped sink, flooding her apartment. At
the time, no one else was present in her apartment. The
overflowing water damaged the sink, tiles, and countertops in
defendant's apartment. The water also flooded an adjacent unit
and a nearby staircase, and seeped through the floor of the
flooded areas, damaging the ceiling tiles in the community room
below and causing the ceiling to collapse "on top of a lot of
the furniture area."
On October 20, 2016, plaintiff served defendant with a
Notice to Quit and Demand for Possession (Notice) as required by
the Anti-Eviction Act, N.J.S.A. 2A:18-61.2, which terminated her
tenancy as of October 24, 2016. The Notice stated that on
October 3, 2016, defendant caused damage to the premises "by
reason of gross negligence" as a result of "water overflowing
from [her] kitchen sink faucet while unattended." Defendant
failed to vacate the unit by the termination date, and on
October 25, 2016, plaintiff filed a complaint for possession.
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Defendant responded in a November 14, 2016 letter
requesting "a reasonable accommodation" pursuant to the federal
Fair Housing Amendments Act (FHAA), 42 U.S.C. §§ 3601 to 3619.
According to her letter, defendant suffered from "depression and
memory loss as a result of her epilepsy." She requested
plaintiff remove her stove to accommodate her disability and "to
prevent a fire hazard in the apartment and protect [plaintiff's]
property." She also asked plaintiff to replace her "standard
continuous-flow faucet" with a "Pillar Tap Metering Faucet,"
which "requires the user to push down on the meter to activate
the flow of water" and stops automatically after a few seconds
to "guarantee[] that the kitchen sink will not over-flow."
Plaintiff denied defendant's request.
At trial, plaintiff presented the testimony of
superintendent Johnson and its property manager, Nereida Nieves,
both of whom described the extent of the damage defendant caused
to plaintiff’s property in detail.1 Nieves also testified about
three prior incidents in which the toilets in defendant's
1
Damages are not at issue in this appeal.
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apartment overflowed because "she dropped an object in the
toilet."2
Following the bench trial, the judge entered the judgment
of possession in plaintiff’s favor. The judge acknowledged that
plaintiff "testified credibly" that "flooding . . . emanated
from [defendant's] apartment" on October 3, 2016 from "an
overflowing sink." According to the judge, for "quite some
time," defendant had left the faucet "open," "running on full
blast," and "unattended" with "a stopper in the sink." The
judge referenced the photographs admitted into evidence
depicting the extent of the damage as well as the testimony
verifying "what was required to clean up the apartment."
The judge also acknowledged defendant's medical condition
and "memory issues" as well as "past problems . . . resulting in
an overflow of the toilet on several prior occasions." The
judge concluded that plaintiff proved "by a preponderance of the
evidence," that "[defendant's] inattention" constituted "gross
2
Defendant objected to the testimony of other incidents on the
ground that they were not cited in the Notice. The judge
overruled the objection. We note that the Anti-Eviction Act
"reflects a public policy barring dispossess actions except upon
strict compliance with the notice and procedural requirements of
the Act," regardless of whether "the landlord has acted in good
faith or the tenant has not been prejudiced." 224 Jefferson St.
Condo. Ass'n. v. Paige, 346 N.J. Super. 379, 383 (App. Div.
2002).
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negligence," which "caused or allowed" "damage to the facility,"
and "that her presence in [the] apartment constitute[d]
something of a risk" to justify removal pursuant to N.J.S.A.
2A:18-61.1(c).3 The judge stayed the issuance of the warrant of
removal pending appeal, and this appeal followed.
In reviewing the trial judge's determination, we accord
substantial deference to the judge's special role as a fact
finder. See Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am.,
65 N.J. 474, 484 (1974) (instructing that a trial court's
findings are generally binding on appeal "when supported by
adequate, substantial and credible evidence"). Such
"[d]eference is especially appropriate when the evidence is
largely testimonial and involves questions of credibility."
Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011)
(quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). That
said, we afford no special deference to "[a] trial court's
interpretation of the law and the legal consequences that flow
3
The court also rejected defendant's claim that her disability
resulting from "her memory loss and epileptic condition" was a
defense to the removal and "entitled" her "to a reasonable
accommodation." The court determined that such an accommodation
was not required under federal law because it "would
fundamentally alter the nature of the provider's operations" by
"changing unsupervised senior adult housing into supervised
senior adult housing." In light of our disposition of this
appeal, we need not address that issue.
6 A-1841-16T3
from established facts." Manalapan Realty, L.P. v. Twp. Comm. of
Manalapan, 140 N.J. 366, 378 (1995).
The Anti-Eviction Act prohibits a landlord from evicting a
residential tenant except upon the establishment of good cause.
N.J.S.A. 2A:18-61.1. Under N.J.S.A. 2A:18-61.1(c), good cause
for removal may be established if the landlord demonstrates by a
preponderance of the evidence that the tenant "has willfully4 or
by reason of gross negligence caused or allowed . . . damage
. . . to the [landlord's] premises." "The legislative intent of
N.J.S.A. 2A:18-61.1(c) requires actual damage to the landlord's
property for there to be a cause of action for eviction." Les
Gertrude Assocs. v. Walko, 262 N.J. Super. 544, 549 (App. Div.
1993).
Gross negligence is defined as "conduct that comes
somewhere between 'simple' negligence and the intentional
infliction of harm, or, 'willful misconduct.'" Ivy Hill Park
Section III v. Smirnova, 362 N.J. Super. 421, 425 (Law Div.
2003) (quoting Clarke v. Twp. of Mount Laurel, 357 N.J. Super.
362, 370 (App. Div. 2003)). It requires "indifference to
consequences," Banks v. Korman Assocs., 218 N.J. Super. 370, 373
(App. Div. 1987), and has also been defined as "reckless
4
Plaintiff did not allege willful conduct on defendant's part.
7 A-1841-16T3
disregard of the safety of others." In re Kerlin, 151 N.J.
Super. 179, 185 (App. Div. 1977) (quoting State v. Linarducci,
122 N.J.L. 137, 137 (Sup. Ct.), aff’d, 123 N.J.L. 228 (E & A
1939)).
Therefore, at trial, a landlord must prove that its tenant
not only caused damage, but did so through conduct that amounts
to more than simple negligence. This construction of N.J.S.A.
2A:18-61.1(c), requiring more culpability than ordinary
negligence in the tenant's actions or inactions, is consistent
not only with the text of that provision, but with the general
legislative policies of the Anti-Eviction Act, N.J.S.A. 2A:18-53
to -84. "[T]he dominating principle in construing the Act [is]
that it must be construed liberally with all doubts construed in
favor of a tenant. . . ." 224 Jefferson, 346 N.J. Super. at
389.
In Muros v. Morales, 268 N.J. Super. 590, 597 (App. Div.
1993), we found the requisite level of culpability required in
N.J.S.A. 2A:18-61.1(c) where a tenant drilled holes in the floor
in order to gain access to electric current from her landlord's
basement outlets. In that same vein, in Stuyvesant Associates
v. Doe, 221 N.J. Super. 340, 343 (Law Div. 1987), a
schizophrenic tenant who failed to take his medication damaged
his own apartment by spray-painting appliances and windowsills
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and damaged the door of another tenant with a hammer. The court
found that failing to take his medication constituted gross
negligence to satisfy the statutory mandate and provide a basis
for removal because the tenant knew that he became psychotic and
delusional when he failed to medicate himself. Id. at 343-44.
In Ivy Hill, 362 N.J. Super. at 424-25, a tenant fell
asleep while boiling his urine to use on his back to alleviate
back pain, emitting a noxious odor into the building air.
Although it found "that putting something on a cooking range, or
in an oven, or the like, when one is so tired as to fall asleep
(as [the] defendant did) constitute[d] gross negligence," the
court concluded that emitting a noxious odor did not constitute
destruction, damage, or injury to the landlord's premises as
required under the statute. Id. at 425-27.
Applying these principles to the evidence in this record,
we are satisfied that plaintiff failed to establish by a
preponderance of the evidence that defendant's conduct was
"grossly negligent" to meet the requirements of N.J.S.A. 2A:18-
61.1(c), and the judge's contrary conclusion was erroneous.
While falling asleep after midnight and forgetting to turn off
the water when the stopper was in the sink was clearly
negligent, given defendant's medical condition, her conduct did
not rise to the level of gross negligence in the circumstances
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of this case. Indeed, her request that plaintiff replace her
faucet with a "Pillar Tap Metering Faucet" to avoid such an
occurrence in the future demonstrates concern rather than
"indifference to consequences[.]" Banks, 218 N.J. Super. at
373. In light of our decision, we need not address defendant's
argument, raised for the first time on appeal, that entry of the
judgment of possession contravened the Senior Citizens and
Disabled Protected Tenancy Act, N.J.S.A. 2A:18-61.22 to -61.39.
The judgment of possession is vacated, and the matter is
remanded for entry of an order dismissing the complaint with
prejudice. We do not retain jurisdiction.
Vacated and remanded.
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