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401 53rd Street, L.L.C. v. Cabrera

A-4076-09T2 (N.J. Super. App. Div. 2011) (Unpublished)

LANDLORD-TENANT; EVICTION — A residential tenant may be evicted for willful damage to property, but even though a tenant’s willful damage of property is not usually curable, eviction may be barred if the tenant satisfactorily and properly repairs damage before his or her landlord files an eviction action.

A landlord served its tenant with a three-day Notice to Quit pursuant to the requirements of the Anti-Eviction Act. It was based on two separate incidents. One claim was that its tenant had defaced the front door and frame of its apartment with a black marker by scribbling that the exterminator murdered the tenant’s dog. The other was that the tenant had turned on the hot water in the kitchen sink, left the room, and allowed the water to overflow and flood the unit. The landlord argued that these violations constituted willful damage or gross negligence under the Act.

The tenant testified that she believed an exterminator had sprayed chemicals that killed her dog and was concerned that her other dog would also be affected by the spray. The tenant admitted that after being unable to get in touch with her landlord, she used washable black marker to write on the outside of her front door. The superintendent, on cross examination, admitted there was no damage to the door after it was repainted by the tenant within one day.

Next, the tenant testified that when she finished washing her dishes she used both hands to close the faucet. Thinking she had turned off the hot water, she left the stopper in the sink and went to answer a ringing telephone. When the tenant answered, her daughter was calling to say that the tenant’s granddaughter had been taken to the hospital. Although the superintendent claimed he could hear the water running onto the floor as he knocked on the door, the tenant claimed that the hot water was mostly shut off. The lower court found for the tenant.

On appeal, the landlord argued that each of the tenant’s transgressions, standing alone, was a sufficient ground for eviction, and that the lower court improperly considered the tenant’s argument that the landlord had really been seeking to evict the tenant so that it could rent the apartment to a new tenant at a higher rent. The Appellate Division disagreed. Regarding the door, the Court noted that a tenant’s willful damage to property is not usually curable, but eviction may be barred if a tenant satisfactorily and promptly repairs damage before its landlord files a dispossess action. The Court characterized the door markings as such, noting that the markings were up for less than a day.

Regarding the flooding, the Court observed that the tenant’s testimony that she thought she had turned the water off completely when she went to the other room to answer the phone was not refuted. In affirming the lower court’s decision, the Court found that the tenant may have been negligent in not completely turning off the water while the stopper was still in the sink, but such negligence did not rise to the level of gross negligence sufficient to be grounds for eviction.

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