806 6th St. HCPVI v. Nunez

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806 6TH ST. HCPVI, LLC, Plaintiff-Respondent, v. NELSON NUNEZ, Defendant-Appellant.

No. A-0753-21

Superior Court of New Jersey, Appellate Division

August 23, 2023

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.

Argued March 22, 2023

On appeal from the Superior Court of New Jersey, Law Division Hudson County, Docket No. LT-003236-19.

Cindy Nan Vogelman argued the cause for appellant (Chasan Lamparello Mallon & Cappuzzo, PC, attorneys; Cindy Nan Vogelman and John V. Salierno, on the briefs).

Adrienne LePore argued the cause for respondent (Feinstein Raiss Kelin Booker & Goldstein, LLC, attorneys; Adrienne LePore, on the brief).

Before Judges Accurso and Natali.

PER CURIAM

Defendant Nelson Nunez appeals from a November 10, 2021 Special Civil Part order denying his motion to vacate an April 4, 2019 consent judgment for possession entered in favor of his landlord, plaintiff 806 6th Street HCPVI, LLC. Defendant argues because he had the ability to satisfy his outstanding rent obligation, the court's decision to deny his application was contrary to N.J.S.A. 2A:42-10.16a (Stack Amendment^[1]), which became effective on March 1, 2020 as part of the Fair Eviction Notice Act, N.J.S.A. 2A:42-10.15 to 10.17. We conclude the Stack Amendment does not apply under the circumstances underlying defendant's eviction and accordingly affirm.

I.

Plaintiff initiated this summary dispossess action on March 14, 2019, due to defendant's nonpayment of rent. See N.J.S.A. 2A:18-61.1(a). At that time, defendant resided at plaintiff's property, 8066th Street in Union City, along with his elderly parents, then ninety-five and eighty-two respectively, for over twenty years. On April 4, 2019, defendant consulted with plaintiff's attorney and agreed to enter a consent judgment, which permitted him and his parents to continue residing in plaintiff's property until January 9, 2020, conditioned on defendant's ability to trace and replace money orders allegedly sent for his July and August 2018 rent, pay all outstanding rent due, and satisfy his monthly rent obligation by the first of each month.

Defendant paid all outstanding rent and replaced the August 2018 money order but failed to either locate or replace the July 2018 money order as required by the terms of the consent judgment. As a result, plaintiff applied for a warrant for removal. Prior to the first scheduled lockout date, defendant, represented by counsel from the Union City Tenant Advocate's office, filed an order to show cause seeking to vacate the consent judgment. The court denied defendant's application and issued an order for orderly removal, which allowed defendant to remain in the premises until June 24, 2019.

Prior to the scheduled lockout, defendant filed a second application seeking to vacate the consent judgment. On the return date for the order to show cause, defendant's counsel contended the April 4, 2019 consent judgment was invalid because defendant, a native Spanish speaker, met with plaintiff's attorney without counsel, a mediator, or an interpreter and did not understand the nature or scope of the parties' agreement.

The court ordered briefing and scheduled a hearing. In his submission, defendant claimed he "lack[ed] the ability to read and understand legal terminology" and entered the consent judgment with the good faith belief that he would not be evicted if he paid all outstanding rent.

The parties appeared before the court on October 1, 2019, and, in lieu of arguing the motion, agreed to a hardship stay. The court accordingly entered an order keeping in place the April 4, 2019 consent judgment but permitted defendant to remain in the premises until February 29, 2020, again conditioned on his obligation to pay rent. Defendant paid all outstanding rent and continued to satisfy his rental obligations throughout the duration of the hardship stay.

Anticipating defendant would not voluntarily vacate the premises by February 29, 2020, on February 18, 2020, plaintiff filed an application for a warrant of removal for March 2, 2020. On March 3, 2020, defendant filed a third order to show cause seeking to pay all outstanding rent and dismiss plaintiff's complaint and the consent judgment based on the newly enacted Stack Amendment.

The court ordered briefing on the Stack Amendment's impact on the eviction proceedings but, due to the COVID-19 pandemic, the resulting closure of the courts, and the Governor's order temporarily placing a moratorium on evictions,^[2] the parties did not submit the requested briefing. During the moratorium, defendant purchased money orders to satisfy his rent obligations, but plaintiff refused to accept those payments.

Once the moratorium was lifted, plaintiff applied for yet another warrant for removal with a November 8, 2021 lockout date. On that date, defendant, again through his Union City Tenant Advocate attorney, filed a fourth order to show cause to vacate the consent judgment. In support, he filed a certification attesting he had "all the rent and [accordingly] move to vacate the judgment under N.J.S.A. 2A:42-10.16(a)."

At the motion hearing, plaintiff argued the Stack Amendment "does not apply to hardship stay cases. It applies where the tenant didn't have the money and the tenant is going to be locked out and comes up with the money later." On this point, plaintiff maintained its warrant for removal was not based on nonpayment of rent but rather because defendant did not vacate the premises by the agreed upon date. It specifically argued "[t]his warrant was not requested or posted as a result of his nonpayment of rent. His rent was paid through the hardship stay. It was posted and it was requested because he failed to vacate pursuant to the court order." Plaintiff further asserted it would be nonsensical to apply the legislation to a hardship stay "because a hardship stay only happens where the tenant has to pay" outstanding rent.

Defendant disagreed with plaintiff's interpretation of the Stack Amendment. According to defendant, the statute applies in "all eviction actions for nonpayment of rent" and does not "reference anything about consent judgments[,] . . . settlements[,] or hardship stays." Defendant further maintained the nonpayment of rent was the basis for eviction and neither the consent judgment nor hardship stay changed the fundamental nature of the proceedings. He also contended "the language of the statute essentially renders the hardship statute meaningless."

After considering the parties' arguments and the statutory language, the court denied defendant's application, entered the November 10, 2021 order for orderly removal, and stayed the lockout for seven days. The court explained it "agree[d] with the landlord's position that the hardship stay turned this matter . . . into a matter of, you may stay in the property through this period of time and rent is no longer an issue." It therefore concluded as the eviction was not for nonpayment of rent, the Stack Amendment did not apply.

The court stayed defendant's eviction pending appeal. After defendant filed a notice of appeal, his counsel left the Union City Tenant Advocate's Office without filing a substitution of attorney. In the interim, we granted plaintiff's application requiring defendant to provide certain hearing transcripts in support of his appeal. Defendant failed to comply with our order and we administratively dismissed his appeal.

In May 2022, plaintiff applied for a warrant for removal stating defendant's appeal was dismissed due to his failure to produce the ordered transcripts. The court granted plaintiff's application and scheduled the lockout date for June 14, 2022.

Prior to the lockout date, defendant, represented by new counsel, applied for emergent relief seeking to reinstate his appeal and continue the stay, and explained in light of his prior counsel's failure to file a substitution, he was unaware of our order compelling the production of transcripts. We granted defendant's motion to reinstate but denied his "emergent motion for a stay of the warrant for removal on the basis of the Stack Amendment." 806 6th St. HCPVI, LLC v. Nunez, No. M-5757-21 (App. Div. June 28, 2022). After considering defendant's application against the factors set forth in Crowe v. DeGioia, 90 N.J. 126 (1982), "we conclude[d] defendant ha[d] not demonstrated a reasonable probability of success on the merits of his appeal." We granted defendant ten days from the date of our order to vacate the premises. Defendant was locked out of the premises on July 8, 2022.

II.

Defendant maintains the court erred in denying his application to vacate the April 4, 2019 consent judgment and rejecting his request to be restored to the premises, because his action is one "for non[]payment of rent to which the [Stack Amendment] clearly applies" and the court erred in reading an "exception" into that statute based on the consent judgment and hardship stay. Alternatively, relying on Community Realty Management Inc. v. Harris, 155 N.J. 212, 226 (1998), defendant contends the April 4, 2019 consent judgment should be vacated in accordance with Rule 4:50-1 because he entered into that judgment without representation, or the aid of an interpreter.

Plaintiff argues defendant's appeal is procedurally deficient on several bases. First, it contends defendant's appeal is moot due to his July 2022 eviction. Plaintiff also maintains defendant's appeal is time-barred, as he did not appeal the October 1, 2019 hardship stay within forty-five days see Rule 2:4-1(a), and the October 1, 2019 order "is...