ABE REALTY v. SUSAN MACK FLEISHER (2011)

Defendant Bennett Fleisher appeals a judgment of possession entered by the Special Civil Part in a summary dispossess action.   We dismiss the appeal as moot.

Fleisher and his wife (tenants) resided in the third-floor apartment at the subject property, 67 Morris Street in Morristown, which had previously been owned by Fleisher's parents prior to their bankruptcy.   A dispute developed between the landlord, plaintiff ABE Realty, L.L.C. (ABE), and the tenants with respect to certain repairs that Fleisher sought to have ABE complete when its predecessor in title acquired the property from the bankruptcy trustee.¹  As part of that dispute, the tenants began withholding or making late payment of their rent.

After serving a notice to cease habitual late payment of rent, as required by N.J.S.A. 2A:18-61.1, and a notice to quit, as required by N.J.S.A. 2A:18-61.2(b), ABE commenced a summary dispossess action on November 9, 2007.   The tenants raised a defense under Marini v. Ireland, 56 N.J. 130, 144 (1970) with respect to the condition of the apartment and the lack of parking.

The case was tried over seven days between January 16, 2008, and June 11, 2008.   The trial judge rejected the tenants' Marini defense, finding that some of the issues raised by the tenants did not satisfy the requirements of Marini and that others did not justify withholding the entire rent.   The judge granted possession to ABE. The tenants unsuccessfully sought a stay from the trial judge and from us.   They moved out of the apartment on October 31, 2008.

Shortly before this appeal was submitted to the panel for decision, ABE filed a motion to dismiss on grounds of mootness, citing the facts that the tenants had moved out of the rental unit and that it had been rented to a new tenant.   Fleisher opposed the motion.

We agree that the appeal is moot.   See Daoud v. Mohammad, 402 N.J.Super. 57, 61 (App.Div.2008) (“Because the court's jurisdiction is limited to determining the issue of the landlord's right to possession of the premises, and, as previously noted, the tenant vacated the premises and the premises have been re-rented, the issue can no longer be determined.”);  Sudersan v. Royal, 386 N.J.Super. 246, 251 (App.Div.2005) (“Ordinarily, where a tenant no longer resides in the property, an appeal challenging the propriety of an eviction is moot.”).   This does not leave Fleisher without any means of relief, because “if [Fleisher] feels aggrieved by the disposition, he may still pursue a remedy in the Law Division.”  Daoud, supra, 402 N.J.Super. at 61.   Consequently, the appeal is dismissed.

Even if we were to address the merits, the judgment would be affirmed.  “The general rule is that [factual] findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence.”  Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)).   Our review of the judge's legal conclusions is plenary.  Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

The issues raised on appeal are without merit and would not warrant extended discussion in a written opinion.   R. 2:11-3(e)(1)(E).   We note only that the trial judge's factual findings are supported in the record.   His legal conclusion, that the tenants were not entitled to withhold the entire rent, was supported by the facts and the law.   See Berzito v. Gambino, 63 N.J. 460, 469 (1973)(“[T]he tenant will be charged only with the reasonable rental value of the property in its imperfect condition during his period of occupancy.”);   C.F. Seabrook Co. v. Beck, 174 N.J.Super. 577, 595 (App.Div.1980)(“The tenant of a dwelling affected by serious defects which impair habitability must pay the reasonable rental value only.”).

Dismissed as moot.

FOOTNOTES

FN1. ABE acquired title through several transfers by affiliated entities, the first of which actually made the acquisition from the trustee..  FN1. ABE acquired title through several transfers by affiliated entities, the first of which actually made the acquisition from the trustee.

PER CURIAM