                         NOT FOR PUBLICATION WITHOUT THE
                       APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-1841-16T3

ORANGE SENIOR CITIZENS
RESIDENCE, LLC,

        Plaintiff-Respondent,

v.

PAULETTE DAVIS,

        Defendant-Appellant.

_______________________________

              Argued May 3, 2018 – Decided July 11, 2018

              Before    Judges    Haas,   Rothstadt,     and   Gooden
              Brown.

              On appeal from Superior Court of New Jersey,
              Law Division, Essex County, Docket No. LT-
              32251-16.

              Felipe   Chavana   argued the   cause   for
              appellant   (Essex-Newark Legal   Services,
              attorneys; Maria D. Castruita and Felipe
              Chavana, on the briefs).

              Bruce   E.  Gudin  argued   the   cause   for
              respondent  (Ehrlich,   Petriello   Gudin   &
              Plaza, PC, attorneys; Matthew A. Sebera, on
              the brief).

PER CURIAM
      In     this     summary      dispossess     action,         defendant-tenant

Paulette Davis appeals from the Special Civil Part's December

12,   2016      Judgment    of    Possession     entered     in    favor   of    her

landlord,       plaintiff      Orange   Senior    Citizens        Residence,    LLC,

pursuant to N.J.S.A. 2A:18-61.1(c), which permits the removal of

a tenant who has willfully or by reason of gross negligence

caused     or    allowed    destruction,       damage,     or     injury   to    the

premises.       Defendant argues that the trial judge failed to make

"the requisite findings . . . as to how [d]efendant's conduct

met the elements of gross negligence necessary to support the

entry of judgment under N.J.S.A. 2A:18-61.1(c)."                       Because we

conclude defendant's conduct did not meet the requirements of

N.J.S.A. 2A:18-61.1(c), we reverse.

      The following facts are summarized from the bench trial

conducted on December 7 and December 12, 2016, and are generally

undisputed.          Plaintiff     is   the    owner   and      operator   of    the

"federally subsidized housing complex" where defendant has lived

since 2003.         The complex's 132 housing units are available for

lease to elderly tenants.               Defendant is currently sixty-eight

years old.          She developed epilepsy at age three, and, as a

result, suffers from depression and memory loss.                     In 1991, she

underwent       a     "right     temporal      lobectomy,"         which   further

exacerbated her memory loss.

                                         2                                 A-1841-16T3
      On October 3, 2016, at approximately 12:30 a.m., a security

guard at the complex noticed water flooding the stairs of the

facility        and   notified      the    building      superintendent,        Lincoln

Johnson.        They traced the water back to defendant's second-floor

apartment       and   found   she    had    fallen      asleep     with   her   kitchen

faucet running into a stopped sink, flooding her apartment.                             At

the   time,      no   one   else    was    present      in   her   apartment.          The

overflowing water damaged the sink, tiles, and countertops in

defendant's apartment.             The water also flooded an adjacent unit

and a nearby staircase, and seeped through the floor of the

flooded areas, damaging the ceiling tiles in the community room

below and causing the ceiling to collapse "on top of a lot of

the furniture area."

      On   October      20,   2016,       plaintiff     served     defendant     with    a

Notice to Quit and Demand for Possession (Notice) as required by

the Anti-Eviction Act, N.J.S.A. 2A:18-61.2, which terminated her

tenancy as of October 24, 2016.                       The Notice stated that on

October 3, 2016, defendant caused damage to the premises "by

reason of gross negligence" as a result of "water overflowing

from [her] kitchen sink faucet while unattended."                           Defendant

failed     to    vacate     the   unit    by    the    termination    date,      and    on

October 25, 2016, plaintiff filed a complaint for possession.



                                            3                                   A-1841-16T3
       Defendant        responded      in       a     November       14,        2016     letter

requesting "a reasonable accommodation" pursuant to the federal

Fair Housing Amendments Act (FHAA), 42 U.S.C. §§ 3601 to 3619.

According to her letter, defendant suffered from "depression and

memory      loss   as    a   result    of       her    epilepsy."           She    requested

plaintiff remove her stove to accommodate her disability and "to

prevent a fire hazard in the apartment and protect [plaintiff's]

property."         She also asked plaintiff to replace her "standard

continuous-flow         faucet"   with      a       "Pillar    Tap   Metering          Faucet,"

which "requires the user to push down on the meter to activate

the flow of water" and stops automatically after a few seconds

to    "guarantee[]       that   the    kitchen         sink     will    not      over-flow."

Plaintiff denied defendant's request.

       At     trial,         plaintiff      presented            the       testimony           of

superintendent Johnson and its property manager, Nereida Nieves,

both of whom described the extent of the damage defendant caused

to plaintiff’s property in detail.1                    Nieves also testified about

three    prior      incidents     in     which        the     toilets      in    defendant's




1
     Damages are not at issue in this appeal.



                                            4                                          A-1841-16T3
apartment   overflowed    because     "she     dropped   an   object    in   the

toilet."2

       Following the bench trial, the judge entered the judgment

of possession in plaintiff’s favor.            The judge acknowledged that

plaintiff    "testified       credibly"    that    "flooding . . . emanated

from    [defendant's]    apartment"       on   October   3,   2016   from    "an

overflowing sink."        According to the         judge, for "quite some

time," defendant had left the faucet "open," "running on full

blast," and "unattended" with "a stopper in the sink."                       The

judge    referenced     the     photographs       admitted    into     evidence

depicting the extent of the damage as well as the testimony

verifying "what was required to clean up the apartment."

       The judge also acknowledged defendant's medical condition

and "memory issues" as well as "past problems . . . resulting in

an overflow of the toilet on several prior occasions."                       The

judge concluded that plaintiff proved "by a preponderance of the

evidence," that "[defendant's] inattention" constituted "gross


2
   Defendant objected to the testimony of other incidents on the
ground that they were not cited in the Notice.         The judge
overruled the objection.    We note that the Anti-Eviction Act
"reflects a public policy barring dispossess actions except upon
strict compliance with the notice and procedural requirements of
the Act," regardless of whether "the landlord has acted in good
faith or the tenant has not been prejudiced." 224 Jefferson St.
Condo. Ass'n. v. Paige, 346 N.J. Super. 379, 383 (App. Div.
2002).


                                      5                                A-1841-16T3
negligence," which "caused or allowed" "damage to the facility,"

and     "that       her    presence       in       [the]      apartment     constitute[d]

something of a risk" to justify removal pursuant to N.J.S.A.

2A:18-61.1(c).3           The judge stayed the issuance of the warrant of

removal pending appeal, and this appeal followed.

       In    reviewing      the    trial       judge's     determination,       we     accord

substantial deference to the judge's special role as a fact

finder.       See Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am.,

65    N.J.    474,    484       (1974)    (instructing         that   a     trial    court's

findings      are    generally         binding      on   appeal     "when    supported       by

adequate,        substantial            and        credible      evidence").              Such

"[d]eference         is   especially          appropriate      when   the     evidence       is

largely       testimonial        and     involves        questions    of    credibility."

Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011)

(quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)).                                  That

said,    we     afford     no    special       deference       to   "[a]    trial    court's

interpretation of the law and the legal consequences that flow

3
   The court also rejected defendant's claim that her disability
resulting from "her memory loss and epileptic condition" was a
defense to the removal and "entitled" her "to a reasonable
accommodation." The court determined that such an accommodation
was   not  required   under   federal  law  because  it   "would
fundamentally alter the nature of the provider's operations" by
"changing unsupervised senior adult housing into supervised
senior adult housing."     In light of our disposition of this
appeal, we need not address that issue.



                                               6                                     A-1841-16T3
from established facts." Manalapan Realty, L.P. v. Twp. Comm. of

Manalapan, 140 N.J. 366, 378 (1995).

       The Anti-Eviction Act prohibits a landlord from evicting a

residential tenant except upon the establishment of good cause.

N.J.S.A. 2A:18-61.1.          Under N.J.S.A. 2A:18-61.1(c), good cause

for removal may be established if the landlord demonstrates by a

preponderance of the evidence that the tenant "has willfully4 or

by reason of gross negligence caused or allowed . . . damage

. . . to the [landlord's] premises."              "The legislative intent of

N.J.S.A. 2A:18-61.1(c) requires actual damage to the landlord's

property for there to be a cause of action for eviction."                       Les

Gertrude Assocs. v. Walko, 262 N.J. Super. 544, 549 (App. Div.

1993).

       Gross     negligence     is     defined    as    "conduct     that    comes

somewhere       between   'simple'      negligence      and   the    intentional

infliction of harm, or, 'willful misconduct.'"                    Ivy Hill Park

Section III v. Smirnova, 362 N.J. Super. 421, 425 (Law Div.

2003) (quoting Clarke v. Twp. of Mount Laurel, 357 N.J. Super.

362,    370    (App.   Div.   2003)).       It    requires    "indifference       to

consequences," Banks v. Korman Assocs., 218 N.J. Super. 370, 373

(App.    Div.    1987),   and    has    also     been   defined     as   "reckless


4
    Plaintiff did not allege willful conduct on defendant's part.


                                        7                                 A-1841-16T3
disregard of the safety of others."                 In re Kerlin, 151 N.J.

Super. 179, 185 (App. Div. 1977) (quoting State v. Linarducci,

122 N.J.L. 137, 137 (Sup. Ct.), aff’d, 123 N.J.L. 228 (E & A

1939)).

       Therefore, at trial, a landlord must prove that its tenant

not only caused damage, but did so through conduct that amounts

to more than simple negligence.             This construction of N.J.S.A.

2A:18-61.1(c),       requiring       more    culpability    than    ordinary

negligence in the tenant's actions or inactions, is consistent

not only with the text of that provision, but with the general

legislative policies of the Anti-Eviction Act, N.J.S.A. 2A:18-53

to -84.       "[T]he dominating principle in construing the Act [is]

that it must be construed liberally with all doubts construed in

favor of a tenant. . . ."            224 Jefferson, 346 N.J. Super. at

389.

       In Muros v. Morales, 268 N.J. Super. 590, 597 (App. Div.

1993), we found the requisite level of culpability required in

N.J.S.A. 2A:18-61.1(c) where a tenant drilled holes in the floor

in order to gain access to electric current from her landlord's

basement outlets.       In that same vein, in Stuyvesant Associates

v.     Doe,    221   N.J.   Super.    340,    343    (Law   Div.   1987),    a

schizophrenic tenant who failed to take his medication damaged

his own apartment by spray-painting appliances and windowsills

                                       8                            A-1841-16T3
and damaged the door of another tenant with a hammer.                                The court

found    that     failing    to      take    his    medication             constituted      gross

negligence to satisfy the statutory mandate and provide a basis

for removal because the tenant knew that he became psychotic and

delusional when he failed to medicate himself.                             Id. at 343-44.

       In   Ivy    Hill,    362      N.J.    Super.       at    424-25,       a    tenant    fell

asleep while boiling his urine to use on his back to alleviate

back    pain,     emitting       a    noxious      odor        into    the    building       air.

Although it found "that putting something on a cooking range, or

in an oven, or the like, when one is so tired as to fall asleep

(as [the] defendant did) constitute[d] gross negligence," the

court concluded that emitting a noxious odor did not constitute

destruction, damage, or injury to the landlord's premises as

required under the statute.                 Id. at 425-27.

       Applying these principles to the evidence in this record,

we    are   satisfied       that       plaintiff        failed        to    establish       by   a

preponderance       of     the       evidence      that      defendant's          conduct     was

"grossly negligent" to meet the requirements of N.J.S.A. 2A:18-

61.1(c),     and    the     judge's      contrary         conclusion         was    erroneous.

While falling asleep after midnight and forgetting to turn off

the     water     when    the     stopper         was   in      the    sink       was   clearly

negligent, given defendant's medical condition, her conduct did

not rise to the level of gross negligence in the circumstances

                                              9                                         A-1841-16T3
of this case.         Indeed, her request that plaintiff replace her

faucet with a "Pillar Tap Metering Faucet" to avoid such an

occurrence      in    the   future     demonstrates     concern    rather     than

"indifference to consequences[.]"              Banks, 218 N.J. Super. at

373.    In light of our decision, we need not address defendant's

argument, raised for the first time on appeal, that entry of the

judgment   of     possession    contravened     the     Senior    Citizens      and

Disabled Protected Tenancy Act, N.J.S.A. 2A:18-61.22 to -61.39.

The    judgment      of   possession    is   vacated,    and     the   matter    is

remanded for entry of an order dismissing the complaint with

prejudice.      We do not retain jurisdiction.

       Vacated and remanded.




                                       10                                A-1841-16T3
