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CCM Company, L.P. v. Tselentakis

A-0937-10T2 (N.J. Super. App. Div. 2011) (Unpublished)

LANDLORD-TENANT; EVICTION — An assault constitutes a non-curable basis for eviction of a residential tenant and even if a hardship stay is available to such a tenant, a court needs to be satisfied that no alternative housing was available.

A tenant, disabled as the result of unstated conditions and using crutches, assaulted a custodian of the rental property being operated for the disabled and the elderly. Additionally, the tenant accosted the daughter-in-law of a neighboring tenant while the daughter-in-law was leaving the complex’s garbage room. At that time, the tenant yelled at her, attempted to push her against the wall with a crutch, and swung a crutch at her face, barely missing contact. As the result of these incidents, the police were called, and the disabled tenant was taken to a nearby hospital where he remained under psychiatric observation until his discharge. The discharge summary indicated that the tenant was not suffering from a psychosis.

The landlord filed an eviction complaint, claiming a right to possession as the result of the assault. According to the tenant’s attorney, during a pre-trial conference, the tenant advised the lower court that he did not have a defense to the acts set out in the complaint. At the same time, the tenant advised the court that once a judgment was entered, he intended to file a motion to vacate the judgment arguing that it would be inequitable to evict a disabled person from a federally subsidized apartment. Based on that, the lower court advised the parties that it would enter a judgment, but wanted to have the tenant evaluated before ruling on the motion.

The lower court elicited, through unsworn testimony from the tenant’s mother, evidence that the tenant had been discharged from the hospital without medication or a plan for follow-up treatment. However, the mother stated that her son had been followed for the past eleven or twelve years by psychiatrists and neurologists at another hospital, and that he had an appointment there in a few months. The mother stated that her son previously had been treated with prescription medicine, but those drugs had been stopped and, at present, the tenant only took a pill for incontinence. The only other testimony in the matter was provided by the tenant, who admitted that he took the law in his own hands and thought he “was doing some kind of justice immediately.”

During the proceeding, tenant’s counsel was instructed to have the tenant evaluated at the hospital within one week. After reciting that no further incidents had occurred since those noted, the lower court instructed the tenant to remain on good behavior. Although no formal application under the Tenant Hardship Act for a hardship stay was made and no plenary hearing on the issue of the need for such a stay took place, the lower court entered such a stay on a pre-printed “hardship stay order” and it scheduled a “hardship review.” Entry of a judgment of possession and the terms of such a judgment were unaddressed on the record, although the parties and the lower court proceeded throughout as if such a judgment had been entered.

A further hearing took place in the presence of the tenant’s mother and brother. However, as the result of his illness, the tenant was not present. He did not appear at any of the further proceedings in the matter, despite the lower court’s direction that he do so. At the hearing, the tenant’s counsel renewed his informal application for dismissal of the judgment of possession, noting that the tenant had not since misbehaved. Counsel for the landlord argued that there was no statutory basis to vacate the judgment and that eviction was mandated under the Anti-Eviction Act, no showing had been made of the need for a hardship stay as the result of the unavailability of alternative accommodations, and there was no testimony or evidence of any effort by the tenant to relocate. After assuring itself that the tenant had not misbehaved and concluding, without evidence, that the tenant was taking his medication, the lower court extended the hardship stay and scheduled a further hardship review hearing. No medical evaluation of the tenant had taken place.

The tenant’s attorney then renewed his application to vacate the judgment of eviction. However, the lower court deferred the application. While suggesting that the tenant’s aggressive conduct may have been an aberration, the lower court ordered his evaluation. Believing that the six-month period for a hardship stay had passed or was about to pass, the lower court, exercising authority that it believed it possessed as the result of an order by two members of an appellate panel on an emergent appeal, utilized the Court Rules to vacate the prior hardship stay and to impose a new one, again without any hearing or evidentiary basis to conclude such a stay was required in the circumstances.

Further brief hearings occurred, at which it was disclosed that the tenant’s condition still had not been evaluated. These were followed by a final hearing. There, although no examination of the tenant had taken place, the lower court considered, over the objection of the landlord’s counsel, two hearsay physician’s reports, stating without citation to any authority that the lower court was allowed to accept them in “Tenancy Court.” Neither report was included in the record on appeal. However, it appeared that both concluded the tenant was no longer a threat. Further, the lower court observed, without evidentiary basis, that the tenant’s mother had been monitoring him. The lower court then decided to vacate the judgment of possession, concluding that the equities favored permitting the tenant to remain in the government-subsidized housing were created to accommodate disabled persons, such as this tenant and particularly in light of his not repeating the assaultive conduct.

On appeal, the Appellate Division agreed with the landlord that an assault constitutes a non-curable basis for eviction. In this case, the tenant admitted to the assault. Further, the Court found that, even if a hardship stay were available to the tenant, it was not properly entered. The record contained no evidence that alternative housing was unavailable to the tenant, and alternative housing could have included residing with either the mother or the brother, both of whom appeared in court on the tenant’s behalf. Additionally, there was no evidence that the tenant sought such housing or that his relatives conducted a search on his behalf. Because there never was an evidentiary hearing in the matter and because the tenant was never medically examined for purposes of the litigation, there was no competent evidence as to the mental condition, if any, from which he suffered. Further, no competent medical evidence was presented that the tenant’s unknown condition had abated or was being successfully treated. Thus, the Court reversed and remanded, finding that the informal procedures adopted by the lower court did not properly discharge the lower court’s fact-finding responsibilities and its duty to properly apply the law.


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