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Kasabian v. Karimi

A-5792-02T2 (N.J. Super. App. Div. 2005) (Unpublished)

LANDLORD-TENANT; EVICTION—A court has equitable power to order a landlord to accept late payment of the amount a tenant, in an eviction proceeding, had previously been ordered to pay so as to avoid repossession of its premises.

A landlord sued to evict its tenant and the lower court ordered the tenant to pay the landlord $8,000 by “[c]ash, certified check, or money order” by 4:30 p.m. that same day in order to prevent the landlord from repossessing, the premises. Instead of following the court’s orders, the tenant gave the landlord’s lawyer an uncertified check. The lawyer rejected it. The next day, the tenant gave the lawyer a certified check, but the lawyer rejected that check as untimely. Then, after consulting with his own attorney, the tenant mailed the certified check to the lawyer. Again, the lawyer rejected the check and returned it to the tenant.

The tenant then filed an order to show cause to “require the landlord to show why the check he tendered should not be accepted.” In response, the lower court held that it was its understanding that in a non-residential setting it lacked jurisdiction or authority to grant relief to a tenant after judgment for possession had been granted to the landlord, and that unless the tenant presented proof to the contrary, the court had to dismiss the order to show cause. The tenant presented no evidence contradicting the court’s belief that it lacked jurisdiction and the order to show cause was thus denied. The tenant appealed from that order, requesting the Appellate Division to reinstate his tenancy—which would require the Court to oust a new tenant who had been occupying the building since the appealing tenant left more than a year earlier.

The Appellate Division held that the lower court “mistakenly believed [it] did not have the power to grant the equitable relief requested by the tenant” when in actuality, it did have such authority. Therefore, the lower court erroneously found that it was obliged to dismiss the order to show cause, and to exercise the discretion with which it was vested. Despite this judicial faux pas, the Appellate Division upheld the lower court’s decision, finding that the trial judge’s denial of the order to show cause was justified under the circumstances presented. Additionally, the Court denied the tenant’s request to oust the current tenant and reinstate his own tenancy, finding that to do so would be inequitable since the appealing tenant “failed to comply with the court’s specific order and ... thereafter slept on his rights by failing to present to the court authority to justify the requested relief.”

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