Complex Commercial Tenancies Often Test The Limits Of The Summary Eviction Process

Rental Agreement (PD)
I recently co-authored an article, entitled "Commercial Tenancies, Complexities, And The Limits Of the Summary Eviction Process," that discusses, as the title suggests, situations where commercial landlord-tenant matters may be too complicated for the normal, summary eviction process in New Jersey courts. Here are the first few paragraphs:

New Jersey tenants who don't pay, including commercial tenants, may be swiftly dispossessed of their leasehold pursuant to the Summary Dispossess Statute, N.J.S.A.  2A:18-51 to -61 (the "Statute"). The Statute gives landlords the right to seek the removal of tenants who do not pay rent, or who otherwise violate the terms of the lease.  The Statute establishes a summary eviction process, which as its name implies, is "summary" in nature and, among other things, does not provide for formal discovery and typically does not involve issues other than possession.  From the filing of the summary dispossession complaint it is not uncommon for a tenant to be dispossessed within 90 days or less.

However, what happens when a tenant is not paying rent for a valid reason or due to a legitimate dispute with a  landlord? Can that tenant also be summarily dispossessed? Recognizing the limits of a process that by design is "summary" in nature, New Jersey Courts have answered that question "No." The mechanism to stave off the summary dispossession is the motion to transfer to the Law Division, which remedy is exercisable by a court, at its discretion, if the issues are of "sufficient importance" that proceeding in a summary fashion would not do justice. N.J.S.A.  2A:18-60. Typically, matters of "sufficient importance" involve complex issues and/or the need for discovery.

Please check out the full article here

Res Ipsa At Red Lobster

by:  Peter J. Gallagher (@pjsgallagher)

Not too long ago, I posted about a lawsuit filed by a diner against Applebees. (Click here if you don't remember.) In that case, the diner was allegedly burned after he leaned over a plate of sizzling fajitas for a pre-meal prayer. He sued, alleging that the hot plate was a dangerous and hazardous condition. Applebees argued that even if this was true, the dangerous condition was open, obvious, and easily understood, therefore it could not be liable for any damages that resulted from it. The court agreed and granted summary judgment in favor of Applebees.

Now comes another case where a diner was injured at a casual dining restaurant. This one, Clark v. Darden Restaurants, Inc., involved Red Lobster. In Clark, plaintiff was dining with a friend at Red Lobster. He was injured when their server dropped a plate on the table, causing the plate to shatter. Shards from the shattered plate punctured plaintiff's eyes. According to the court, the "evidence against the restaurant was damning." The server admitted that the plate was "slippery" and "greasy" and that he did not handle it properly. In light of this one-sided evidence, plaintiff moved for summary judgment, "invoking the familiar tort doctrine of res ipsa loquitur." He won, and Red Lobster appealed.

Continue reading “Res Ipsa At Red Lobster”

Another Reminder That Even When You Win You Still Lose Under The New Jersey Consumer Fraud Act

by:  Peter J. Gallagher

The Appellate Division issued an unpublished decision today that again emphasizes the power (some might say, inequity) of the New Jersey Consumer Fraud Act.  In Logatto v. Lipsky, plaintiffs hired defendant to build an addition on their home and perform other renovations.  Although defendant prepared a written proposal with cost estimates, he never prepared a written contract.  After the project was 90% complete, and plaintiffs had paid him $247,500, defendant notified plaintiffs that actual expenses exceeded the proposed costs, and therefore he required an additional $78,469.37 to complete the project.  Plaintiffs refused and, when the parties could not come to a resolution on the issue, defendant left the job.  Plaintiffs then sued defendant under the Consumer Fraud Act for the costs of completion of the project, and defendant counterclaimed for $50,000 in unpaid costs.  Both parties moved for summary judgment, but both motions were denied.

The case was tried to a jury.  After plaintiffs put on their evidence, they moved for judgment on liability in connection with their Consumer Fraud Act Claims.  The trial court granted the motion, finding that there were technical violations of the Act (failure to have a signed contract and change orders).  However, the trial court left the question of whether plaintiffs had suffered an "ascertainable loss," a requirement under the Consumer Fraud Act, to the jury.  The jury ultimately returned a verdict in favor of defendant, finding that plaintiffs did not suffer any ascertainable loss.  After the verdict, however, plaintiffs moved for, among other things, fees and costs under the Consumer Fraud Act.  The trial court denied the motion, but the Appellate Division reversed the trial court and remanded the issue back to the trial court for disposition of the fee motion. 

You may be asking yourself – how is this possible?  How can a defendant prevail at trial but still be responsible for the plaintiffs' legal fees?  What happened to the "American Rule"?  The answer to all of these questions is, the New Jersey Consumer Fraud Act.  Under the Act, as it has been interpreted by the New Jersey Supreme Court — in cases like Cox v. Sears Roebuck & Co. and Weinberg v. Sprint Corp. — plaintiffs can recover costs and fees if they prove that a defendant committed an unlawful practice, even if the victim cannot show any ascertainable loss.  While a plaintiff cannot recover treble damages under the Act without an ascertainable loss, it can still recover its costs and fees.  What this means is that if a plaintiff survives summary judgment and presents a prima facie case of ascertainable loss, it will be able to recover its costs and fees even if, as in the Logatto case, it ultimately loses on the merits at trial. 

This case, like seemingly every other decision handed down in connection with the Consumer Fraud Act, should be a cautionary tale for any business or entities that sell products or provide services that are covered by the Act.