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Bandler v. Maurice6/21/2002
dismissed that portion of plaintiff's action to which he had been erroneously assigned. See Academy Spires, Inc. v. Brown, 111 N.J. Super. 477, 482-83 (Dist. Ct. 1970). That determination is therefore reversed, and Count One is remanded for trial as an integral element of plaintiff's contract action. Sommer v. Kridel, 74 N.J. 446, 454-57 (1977). In the meantime, plaintiff had amended her complaint to seek damages for wrongful termination of the tenancy and denial of the right to exercise the lease's renewal option (Count Two); enforcement of the August agreement between plaintiff's father and Maurice, which plaintiff claimed relieved her of her obligation to pay rent for the last six weeks of the lease term and required return of her security deposit (Count Three); and damages consisting of the difference between the fair market value of the premises when delivered vacant and its value if encumbered by the lease that plaintiff claimed to have been wrongfully terminated (Count Four). Each of those counts was dismissed by the trial judge, who granted summary judgment in favor of defendant Maurice. In doing so, the court found the Anti-Eviction Act (AEA), N.J.S.A. 2A:18-61.1 to -61.12, upon which plaintiff placed reliance, to be inapplicable to the lease and sale of a single condominium unit, and it therefore rejected as a matter of law plaintiff's claim of damages resulting from defendant's alleged breach of that Act. Instead, the court focused on the option provision of the lease, ruling correctly in defendant's favor in that regard on the ground that any rights conveyed by the option were cut off by the sale of the property and by plaintiff's failure to give 60-days' notice of her intention to exercise the option. The court did not address Count Three of the complaint, nor did he discuss Count Four.
No legal basis for Count Four has been suggested in this appeal, and we see none. Summary judgment on that Count is therefore affirmed, despite the short shrift accorded to it below. We reverse and remand as to the remainder, finding legal error in the court's failure to recognize the applicability of the AEA to plaintiff's claims in Count Two (see, e.g., Vander Sterre Bros. v. Keating, 284 N.J. Super. 433 (App. Div. 1995)) and unresolved issues of fact that preclude summary judgment on the unaddressed Count Three.
We address plaintiff's claims under the AEA in greater detail. N.J.S.A. 2A:18-61.1(l)(2) permits the Superior Court, on 60-days' notice, to remove for cause any condominium tenant upon proof that the owner of three or less condominium units "has contracted to sell the unit to a buyer who seeks to personally occupy it and the contract for sale calls for the unit to be vacant at the time of closing." Under N.J.S.A. 2A:18-61.1(l)(1), a provision applicable to owners of more than three condominium units, the right to removal upon sale to an occupant-purchaser exists only if the tenant was given, at the inception of the tenancy, a prescribed statement of tenant's rights that is set forth in N.J.S.A. 2A:18-61.9. Failure to provide this notice deprives the court of jurisdiction over an eviction action and extends the mandated notice from the sixty- day period applicable to post-conversion tenants to the three- year period applicable to pre-conversion tenants. Vander Sterre Bros., supra, 284 N.J. Super. 433.
In a decision rendered after defendant's motion for summary judgment was heard, we distinguished the notice requirements imposed upon owners of more than three condominium units under N.J.S.A. 2A:18-61.1(l)(1) from the requirements imposed upon owners of less than three units under subsection (2), and we held that the formal notice set forth in N.J.S.A. 2A:18-61.9 was required only of
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