SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-4442-01T3
KONA MIAH,
Plaintiff-Appellant,
v.
SHRAJ AHMED,
Defendant-Respondent.
___________________________________
Submitted March 3, 2003 - Decided April 4,
2003
Before Judges Petrella, Lintner and Parker.
On appeal from Superior Court of New Jersey,
Law Division, Special Civil Part, Passaic
County, Docket Number LT-1856-02.
Paul Fernandez & Associates, attorneys for
appellant.
No brief was filed on behalf of respondent.
The opinion of the court was delivered by
PETRELLA, P.J.A.D.
This appeal arises out of a landlord-tenant action in which
the landlord, Kona Miah, was required to evict the tenant,
defendant Shraj Ahmed, from the premises at 15 Paterson Avenue in
Paterson, because under the local ordinances his occupancy was
illegal. Although the defendant refused to vacate the premises
and stopped paying rent on the unit, the judge in the eviction
proceeding conditioned the eviction upon the landlord depositing
six months' rent with the court.
These funds, $2,700, were deposited and held pending the
determination of a court hearing on the turnover. The landlord
also sought to recover the rent due for the period of time when
the tenant occupied the rental unit without paying rent. The
monthly rent that Ahmad was paying was apparently $450, based on
the deposit of the $2,700.
When the judge in the tenancy court ordered the eviction of
Ahmad on May 2, 2002, he also ordered that the $2,700 in
landlord's funds on deposit were to be turned over to Ahmad
immediately. The judge denied the landlord's application for a
stay of his order pending appeal.
On May 3, 2002, this Court granted plaintiff's emergent
application for a stay of the turnover order pending the
determination of his appeal. We specifically directed:
A stay of the turnover of the plaintiff's
funds, heretofore deposited in the amount of
$2,700 with the Clerk of the Court in Passaic
LT-1856-02, to defendant former tenant is
granted pending the determination of the
appeal or the further order of this Court.
When the landlord's attorney returned to the tenancy court judge
he discovered that the deposit monies were already paid out by
the Clerk of the Special Civil Part through the finance office on
an accelerated basis, notwithstanding that in the usual course it
might have taken a week to two weeks which would have allowed
time for an emergent application for a stay. Thereafter,
however, the Clerk of the Court and the judge were supposed to
make efforts to have those funds restored pending our review of
the matter.
The transcript of the May 2, 2002 proceeding reflects that
for some unknown reason the trial judge intervened in the payment
process, thus short-circuiting the appellate process, and
insisted on sending his clerk to the finance office to ensure
that the tenant was paid the $2,700 check virtually immediately.
Furthermore, the transcript indicates that there was another
action pending between the same parties, instituted by plaintiff,
under docket number DC-354-02 in Passaic County. We take
judicial notice of the entries on the jacket of that Special
Civil Part matter and it reveals that the same judge as in the
tenancy court sua sponte stayed disposition of that case pending
disposition of this appeal.
On May 28, 2002, Ahmad filed an emergent application before
this Court to vacate the emergent relief that we had granted on
May 3, 2002. We denied that motion and also ordered:
However, in view of the fact that the
Clerk of the Trial Court prematurely released
the deposited funds, and the respondent
immediately cashed the check, we hereby
authorize a limited remand to the Trial
Court, on motion of appellant filed within
thirty days hereof, to effectuate a
restoration of those funds pending the
determination of this appeal and the further
order of the Court.
We note at this point that it is not the function of the
trial judge to give special assistance to any litigant,
particularly at the expense of another litigant and when he has
notice of a hotly disputed issue and was clearly advised that an
appeal would be promptly filed. We are at a loss to understand
why the judge acted in the manner that he did. Moreover,
plaintiff's brief informs us that the landlord's attorney
obtained an order to show cause, returnable on July 29, 2002,
before the same judge who was involved throughout these trial
court proceedings, and the judge directed that the funds be
returned to the court, but for unstated reasons he reportedly
stayed the entry of his order. Furthermore, contrary to our
rules and required procedures, the judge did not enter a written
order, thus in effect negating the relief ordered by this courtSee footnote 11
by this omission. Such action is unsupportable and cannot be
tolerated. Even if the judge disagrees with the order or ruling
of an appellate court, he is bound to follow it. Hiering v.
Township of Jackson,
248 N.J. Super. 37, 43, n. 2 (Law Div. 1990)
(citing Reinauer Realty Corp. v. Paramus,
34 N.J. 406, 415
(1961)).
In any event, we turn from the procedural aspect of the
morass created by the trial judge to the merits of the appeal.
We recognize that we are at a disadvantage because no brief has
been submitted on behalf of the respondent. Nevertheless, we
have considered the entire record, including the judge's reasons
for his decision, and turn to the issue raised by the landlord on
this appeal.
The landlord argues that the order of the tenancy court
judge directing the turnover of the funds he deposited with the
court to the defendant Ahmad, the former tenant, pursuant to
N.J.S.A. 2A:18-61.1h. was inappropriate, and the statute
providing for a "reimbursement" to a tenant should be conditioned
upon proof of actual relocation expenses for the period up to six
months of rental.
At the outset we note that merely because there was an
illegal occupancy, a tenant is not entitled to have rent free
accommodations, particularly for an extended period. Indeed, our
cases have so held. McQueen v. Brown,
342 N.J. Super. 120, 129
(App. Div. 2001), aff'd,
175 N.J. 200 (2002). See also Norlund
v. Faust,
675 N.E.2d 1142 (Ind. Ct. App. 1997).
We turn now to the question of the interpretation of the
applicable statute, N.J.S.A. 2A:18-61.1h(a), which provides:
a. If a residential tenant is displaced
because of an illegal occupancy in a
residential rental premises pursuant to
paragraph (3) of subsection g. of section 2
of P.L. 1974, c. 49 C.2A:18-61.1) and the
municipality in which the rental premises is
located has not an ordinance pursuant to
section 3 of P.L. 1993, c. 342 (C. 2A:18-
61.1g), the displaced residential tenant
shall be entitled for reimbursement for
relocation expenses from the owner in an
amount equal to six times the monthly rental
paid by the displaced person.
This provision was enacted by L. 1993, c. 342, § 4, effective
December 27, 1993.
The term "reimbursement" as used in this section is not
defined in the statute, and hence we apply usual rules of
statutory construction. Cornblatt v. Barow,
153 N.J. 218, 231
(1998); State v. Butler,
89 N.J. 220, 226 (1982); State v.
Carbone,
38 N.J. 19, 24 (1962). The trial judge, however,
apparently read the statute to mean that a full six months' rent
had to be paid over to the tenant in any event, whether or not
the tenant actually incurred those expenses and required
reimbursement to that extent for actual expenses. In effect, he
applied the statute as creating a penalty provision against the
landlord and in favor of the tenant. In any event, the trial
judge erred by not allowing the landlord rent for at least the
three month period beyond the six months that the tenant had
stayed in the property. Under the most favorable circumstances
and the widest construction of the statute the tenant could only
take advantage of a six month credit at most. The tenant is
responsible for all use and occupancy or rental over and above
the six month period even if the judge's interpretation of the
statute were correct. This is for the obvious reason that the
tenant was not entitled to live rent free, even if there was an
illegal tenancy or lack of a certificate of occupancy, or for
whatever reason. McQueen, supra (342 N.J. Super. at 129).
In this case, the landlord learned that the tenancy in the
unit was inappropriate under the existing municipal code,
notified his tenant of that fact, and requested that he vacate
the premises. We are not informed of the exact municipal code
violation. Nonetheless, we cannot assume that the Legislature
intended a windfall to the tenant in such situations. Moreover,
we cannot assume that the tenant was not aware of his
surroundings when he moved into the premises and would be
entitled to a windfall when a violation required his eviction or
removal. The tenant also became obligated to leave the premises
when the illegal occupancy was brought to his attention, unless
the violation could be easily cured. This he hardly did
promptly.
The record does not indicate whether or not Paterson, the
municipality in which the rental premises was located, has or has
not enacted an ordinance pursuant to N.J.S.A. 2A:18-61.1g,See footnote 22 as
referred to in subsection 61.1h(a). Nevertheless, we must
interpret the statute according to the usual rules of statutory
construction. Words in the statute which are not specifically
defined are given their common meaning. Scatuorchio v. Jersey
City Incinerator Auth.,
14 N.J. 72 (1953); Fuschetti v. Bierman,
128 N.J. Super. 290 (Law Div. 1974). See also 2A Sutherland,
Statutory Construction, § 46.01 (5th ed. 1992). In determining
the common meaning of words, it is appropriate to look to
dictionary definitions. Matthews v. State,
187 N.J. Super. 1, 7-
8 (App. Div. 1982), appeal dism'd,
93 N.J. 298 (1983).
"Reimburse" is defined as "[t]o pay back, to make restoration, to
repay that expended; to indemnify, or make whole." Black's Law
Dictionary, 1452 (4th ed. 1957).
Although "reimbursement" is required, it would seem to be an
improper confiscation by the Legislature of a person's funds to
require payment of an amount more than necessary to repay or
compensate an individual under the circumstances here, or even
for relocation. Of course, there may also be situations where
the delay by the tenant or the conduct of the tenant increased
monetary responsibility or was the primary cause of any
violation, such as overcrowding. See M.C. Associates v. Shah,
226 N.J. Super. 173, 179 (App. Div. 1988). The present appeal
does not involve penalty provisions for code violations. See
N.J.S.A. 2A:18-61.1g(c).
We are satisfied, that considering the plain meaning of the
word "reimbursement" in the statute, that any relocation expenses
must be based upon actual out-of-pocket expenses by the tenant.
Here, there was no such evidence presented, and the judge simply
ordered that the six months' rent he erroneously required the
landlord to deposit, as a condition of eviction in an unlawful
tenancy situation, was to be promptly turned over to the tenant.
As we observed, the release to the tenant of these funds
compounded the problem and indeed would complicate efforts by the
landlord to overcome the errors by the trial judge and either
preserve the status quo pending appeal or obtain recovery if his
appeal was successful.
We reverse the determination of the tenancy court judge and
remand the matter to the tenancy court for the entry of an order
directing that the defendant-tenant return to the trial court all
monies received pending a hearing on the actual expenses incurred
by the defendant. In view of the circumstances we are
constrained to direct that such proceedings on this remand and
any further proceedings involving the parties shall be heard by a
different judge than the one previously involved in this matter.
In light of our determination, the motion filed by appellant
on February 19, 2003 to compel the tenant to redeposit the funds
that had been previously turned over to the tenant is dismissed.
Footnote: 1 1 This occurred despite communications between the trial judge and this court in which the trial judge indicated it was inexplicable how the clerk had released the funds and he didn't know what to do about it. Footnote: 2 2 This section of the 1993 law provides that a municipality may enact an ordinance providing for relocation assistance for persons evicted from zoning or code enforcement activity or illegal occupancy "in an amount equal to six times the monthly rental paid by the displaced person. The owner-landlord of the structure shall be liable for the payment of relocation assistance pursuant to this section." Other sections allow the municipality to obtain "reimbursement" from the owner-landlord of amounts paid by the municipality if the municipality pays a displaced person who has not received the required payment.