                        NOT FOR PUBLICATION WITHOUT THE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-4396-15T4

B.J. FUNK REALTY COMPANY, LLC,

        Plaintiff-Respondent,

v.

SAHAR ELSADANI,

     Defendant-Appellant.
_______________________________

              Submitted May 30, 2018 – Decided August 14, 2018

              Before Judges Koblitz and Suter.

              On appeal from Superior Court of New Jersey,
              Law Division, Special Civil Part, Hudson
              County, Docket No. LT-5584-16.

              Ibrahim Law Firm, attorneys for              appellant
              (Ihab A. Ibrahim, on the brief).

              Raff & Masone, PA, attorneys for respondent
              (Timothy J. Hawkes, of counsel; Paul N. Weeks,
              on the brief).

PER CURIAM

        Defendant Sahar Elsadani appeals all the judgments and orders

entered in this landlord/tenant case.              These include the May 23,

2016 judgment of possession in favor of the landlord, plaintiff

B.J. Funk Realty Company, LLC; the orders dated May 27, 2016 and
June 8, 2016, denying a stay of the judgment; and orders entered

on June 2, 2016 and June 7, 2016, granting orderly removal.              We

stayed the eviction on June 28, 2016, pending this appeal.           After

review, we reverse the judgment of possession and remand for a new

hearing.

       On May 4, 2016, plaintiff filed a verified complaint for

eviction under N.J.S.A. 2A:18-61.1(c), alleging that by willful

or gross negligence, defendant caused the "destruction, damage or

injury" of the rented premises.     An April 26, 2016 Notice to Quit

and Vacate attached to the complaint alleged that defendant damaged

or destroyed the apartment by:

           1.   Turning on the kitchen oven which was
                filled with pots and pans and leaving the
                State of New Jersey causing smoke to
                engulf the apartment and causing the
                evacuation of the building;

           2.   Destroying the stove and dismantling the
                range burners;

           3.   Dismantling the smoke alarms in the
                apartment causing a risk of death and
                physical harm to the tenants in the
                building;

           4.   Causing smoke damage to the apartment.

       A few days before trial, defendant filed a motion under Rule

6:4-1(g) to transfer the case to the Law Division.            She alleged

that    discovery   was   needed   to   determine   whether    the    oven

malfunctioned or whether an intruder entered her apartment while

                                    2                            A-4396-15T4
she was away.   She claimed she did not receive the notice to quit

until May 10, 2016, after the eviction complaint was filed.

     The transfer motion was denied.   The court found the case was

not complex nor did it require pretrial discovery.         The case

centered on issues of credibility.      The trial court rejected

defendant's claim that the notice to quit was not served three

days before the complaint was filed.    The court found the notice

to quit was mailed by regular and certified mail on April 26,

2016.    The regular mail was not returned.      A postal service

tracking report showed the notice to quit was received by the post

office on April 27, 2016.   The first attempt to obtain a signature

on the certified mail was made on April 29, 2016, which was more

than three days before the complaint was filed on May 4, 2016.

Defendant signed for the certified mail on May 10, 2014.

     Plaintiff owns a multi-unit residential apartment building

in Bayonne, New Jersey.   On April 26, 2016, a tenant on the fourth

floor advised Joseph A. Santana, the building superintendent, that

he smelled fire or smoke coming from the apartment below.      Using

his master key, Santana unlocked the door to defendant's third

floor apartment when "this big cloud of smoke hit us."    There was

no evidence of forced entry into the apartment.        Once in the

apartment, he found the oven was on and set to bake.     No one was

home.   Santana noticed the burners on the stove were disconnected;

                                 3                          A-4396-15T4
they were lying on the stovetop.      There were melted pots and pans

in the oven and melted plastic near the oven exhaust.     The inside

of the oven was filled with soot.

     Santana testified the three smoke detectors in the apartment

are hard-wired, meaning that they are powered by electricity. Each

also has a battery back up in case of a power failure.      The smoke

detectors in defendant's apartment were not sounding.        Santana

testified that all three of the detectors were disconnected from

the electric circuit and had no batteries.

     Michael Masone is the managing member of plaintiff B.J. Funk

Reality Co., LLC.   He arrived after being contacted by Santana.

He smelled an "acrid smoke" smell, similar to the smell of burning

plastic.   The firemen turned off the oven and gas supply.      There

was soot in the oven and a burned bungee cord.     The burners on the

stove top had been dismantled.        He testified the burners were

sealed units that were not to be removed from the stove.      He also

saw that the smoke detectors were not connected to the electric

circuit and had no batteries.         He testified the apartment was

filled with clutter.

     Masone spoke to defendant later that day.     He would not agree

to cash her May 2016 rent check because he intended to send her a

notice to vacate the apartment.



                                  4                          A-4396-15T4
     Defendant has lived in the apartment for sixteen years.      She

testified the smoke detectors were working properly on April 20,

2016, because they went off as she was cooking chicken.     On April

21, 2016, she cleaned two of the stove's burners by detaching

them, although they were still connected to the stove by wires.

She was leaving that same day to go to Washington, D.C. and then

to Philadelphia, where she planned to remain for a few days.      She

had to hurry because her ride to the airport arrived early.       The

police called her about the smoke condition in the apartment on

April 26, 2016.    She returned the next day.

     Defendant denied leaving the oven on or the apartment in a

messy condition.   She contended that someone must have entered her

apartment, even though the superintendent testified the door was

locked when he got there on April 26, and no one else but he had

a key.   Defendant testified that one of her credit cards had been

used two times while she was away.     She said she kept that credit

card in the entertainment center, but when she returned to the

apartment, it was in a plastic bag on the floor.         She denied

dismantling the smoke detectors.

     She also denied damaging the stove.      She testified this was

a conventional stove that allowed the burners to be removed for

cleaning, which she did weekly.       On cross-examination, she read



                                  5                         A-4396-15T4
from the stove's manual that the "sealed burner[s]" were "secured

to the cooktop" and "not designed to be removed."

     The court entered a judgment for possession on May 23, 2016,

following trial.      Finding Masone's testimony credible, the court

concluded that defendant dismantled the stove's burners, breaking

the seals, and also dismantled the smoke detectors causing a very

dangerous     situation.     However,     the   court   did     not   find   that

defendant purposefully or willfully turned on the stove or caused

smoke damage to the apartment. The court denied defendant's motion

to stay eviction pending appeal.             A warrant for removal and a

lockout were issued.

     Defendant filed an order to show cause, claiming she had new

evidence.     She alleged the smoke detectors were obsolete and that

the circuit breaker that controlled the alarms was off.                       She

claimed she was handicapped, that she could not lift her arm above

her head, had five herniated discs, pinched nerves in both arms

and legs, torn menisci in both knees and torn ligaments in both

feet.   She denied replacing the batteries of the smoke detectors

or doing anything to deactivate them.           With respect to the stove,

she contended the stove was a conventional one where the burners

could be removed.      She offered a service inspection report form

dated   May    27,   2016,   that   stated      the   surface    burners     were



                                      6                                 A-4396-15T4
"conventional and removable, are operational."            It stated the

"burners can be removed for cleaning and put back."1

     Treating the order to show cause as an application under Rule

4:50-1(b) to vacate the judgment of possession, the court denied

it, concluding that this evidence could have been discovered before

trial.    On June 7, 2016, the court granted a seven-day period for

orderly removal, which permitted a lock out on June 17, 2016; it

denied a stay of eviction on June 8, 2016.

     Defendant appealed on June 14, 2016.         Three days later, we

granted   defendant's   emergent   motion   to   stay   all   trial   court

proceedings pending this appeal.

     The trial court issued an amplification opinion on July 5,

2016.2    In it, the court stated that "[d]efendant presented no

reason under the 'due diligence' standard in R. 4:50-1(b) as to

why these inspections could not have been performed prior to the

trial," noting, however, that the "stovetop inspection and the

circuit breaker inspection could have dispositive information."

The court noted that defendant indicated "per the Notice to Quit"



1
   The copy in the record has no caption to identify its source.
Defendant's supporting certification said this was from "an
authorized service company."
2
  Neither party has supplied us with an order denying defendant's
order to show cause.


                                   7                              A-4396-15T4
that    the   inspection     "would   not    be    meaningful   or   helpful."

Defendant's proffer was "not new evidence since this was known

throughout the trial."

       With   respect   to   the   judgment       of   possession,   the   court

clarified its finding that defendant willfully destroyed the stove

and dismantled the burners.           Quoting from the stove manual, the

court observed "the sealed burners were secured to the cooktop and

not designed to be removed."          The photographs "depicted a burner

unit with wires hanging loose left attached to the stove."                   The

court did not believe defendant was cleaning the stove.                      She

admitted dismantling the burners and this caused damage to the

stove because it broke the seals.

       The court also explained its finding that defendant willfully

caused damage to the smoke detectors.             They were disconnected from

the hardwiring and had no batteries.               She caused damage because

the smoke detectors were rendered inoperable.

       On appeal, defendant argues she was not served with the notice

to quit before the complaint was filed.                 She claims the court

abused its discretion by not transferring the case to the Law

Division to allow for discovery.           She challenges the amplification

opinion.      For the first time on appeal, defendant contends the

court ignored evidence indicating violations of the Americans with

Disabilities Act, and that the judge was not impartial.                      She

                                       8                               A-4396-15T4
contends the judgment of possession should be reversed in the

interest of justice due to irreparable harm.             Defendant requests

a new judge if the case is remanded.

      We reverse the judgment of possession and remand the case

for a new hearing because the court should have considered evidence

of defendant's disabilities in determining whether she willfully

or through gross negligence "dismantled" the smoke detectors and

defendant's new report that the stove burners were "conventional,"

allowing for their removal.         However, we agree that service of the

notice to quit conformed with statutory requirements, that the

case does not require transfer to the Law Division and that there

is no basis to assign a different judge.           Also, the orders denying

a stay are moot in light of our order that stayed the eviction.

     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 review de novo a trial court's determinations on


                                        9                               A-4396-15T4
questions of law.       Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,

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

       The Anti-Eviction Act, N.J.S.A. 2A:18-61.1 to -61.12 (Act),

protects residential tenants from eviction absent a showing of

good cause.      Morristown Mem'l Hosp. v. Wokem Mortg. & Realty Co.,

192   N.J.   Super.      182,   186    (App.     Div.     1983).       The     Act    lists

permissible      grounds     for      eviction      and   the   associated           notice

requirements.        See N.J.S.A. 2A:18-61.1 to -61.2.                Absent proof of

one of the enumerated grounds for eviction, the court lacks

jurisdiction to enter a judgment of possession.                      Housing Auth. of

Morristown v. Little, 135 N.J. 274, 281 (1994).

       Plaintiff's judgment of possession was based on N.J.S.A.

2A:18-61.1(c).         It permits eviction of a residential tenant or

person who "has willfully or by reason of gross negligence caused

or    allowed    destruction,      damage      or    injury     to    the    premises."

Eviction on this ground requires proof of actual physical damage

to the property, Les Gertrude Assocs. v. Walko, 262 N.J. Super.

544, 549 (App. Div. 1993), and that it was willfully caused by the

person or the result of the person's gross negligence.                               "Gross

negligence      is    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


                                          10                                     A-4396-15T4
N.J. Super. 362, 370 (App. Div. 2003)).           The Act is to be construed

"liberally with all doubts construed in favor of a tenant[.]"                 224

Jefferson St. Condo. Ass'n. v. Paige, 346 N.J. Super. 379, 389 (App.

Div. 2002).

        Notice    requirements   under    the   Act   must   be   complied   with

strictly.        To evict under N.J.S.A. 2A:18-61.1(c), the Act requires

that,

             No judgment of possession shall be entered for
             any premises covered by section 2 of this act,
             except in the nonpayment of rent under
             subsection a. or f. of section 2, unless the
             landlord has made written demand and given
             written notice for delivery of possession of
             the premises. The following notice shall be
             required:

                     a.   For an action alleging . . .
                     injury   to  the   premises  under
                     subsection c. of section 2, . . .
                     three days’ notice prior to the
                     institution of the action for
                     possession.

             [N.J.S.A. 2A:18-61.2(a).]

        Here, we agree with the trial court that plaintiff satisfied

the three-day rule under N.J.S.A. 2A:18-61.2(a).             There was testimony

that plaintiff mailed the notice on April 26, 2016 by regular and

certified mail. Defendant's evidence confirmed this. The Post Office

tracking information showed the Post Office received the certified

mail on April 27 and that the first attempt to leave the certified

mail was on April 29, 2016.       The regular mail was not returned.         This



                                         11                             A-4396-15T4
satisfied service under Rule 6:2-3(d)(4).      The complaint for eviction

was filed on May 4, 2016, which was more than three days after the

notice was served.

     Defendant contends the trial court erred by not transferring

the case to the Law Division so she could conduct discovery.                   A

party   to   a   summary    dispossession   action   may   file   a     motion

requesting transfer of the case to the Law Division.           See R. 6:4-

1(g); see also Benjoray, Inc. v. Acad. House Child Dev. Ctr., 437

N.J. Super. 481, 486 (App. Div. 2014).       We review an order denying

transfer under an abuse of discretion standard.            See Master Auto

Parts, Inc. v. M. & M. Shoes, Inc., 105 N.J. Super. 49, 53 (App.

Div. 1969).

        In general, a motion for transfer should be granted whenever

the procedural limitations of a summary action would significantly

prejudice substantial interests of the parties.               See Twp. of

Bloomfield v. Rosanna's Figure Salon, Inc., 253 N.J. Super. 551,

563 (App. Div. 1992).       Factors to consider include:

             The complexity of the issues presented, where
             discovery or other pretrial procedures are
             necessary or appropriate;

                  . . . .

             The   presence   of   multiple   actions   for
             possession arising out of the same transaction
             or series of transactions, such as where the
             dispossesses are based upon a concerted action
             by the tenants involved;

                                    12                                A-4396-15T4
         The appropriateness of class relief;

         The need for uniformity of result, such as
         where separate proceedings are simultaneously
         pending in both the Superior Court and the
         County District Court arising from the same
         transaction or set of facts, and

         The necessity of joining additional parties
         or claims in order to reach a final result.

         [Id. at 562-63.]

    Here, defendant's counsel acknowledged that the issues were

not complex and largely involved credibility.    The case did not

involve multiple actions for possession, no class relief was

requested, and there was no need to join additional parties.      On

this record, the trial court did not abuse its discretion in

denying defendant's motion to transfer.

    Defendant contends the trial court erred by denying the order

to show cause to vacate the judgment of possession.   We agree the

evidence submitted with that application warranted consideration

by the court and we vacate the judgment of possession under Rule

4:50-1(b), directing that defendant be afforded a new hearing.

    Defendant's certification provided for the first time that

she was handicapped and because of that could not reach over her

head to dismantle the smoke detectors.    She denied disconnecting

the smoke detectors, as she had at trial, but explained in her

certification that she physically was not able to do so.        The

                              13                          A-4396-15T4
nature of her handicap and consequent limitations were not part

of the record at the trial.       The certification also included an

inspection report that claimed the stove was a conventional type;

that the burners could be removed for cleaning, and were not

broken.

     The trial court's amplification opinion acknowledged that

these facts could have been "dispositive information" but because

they also could have been discovered in time for the trial, Rule

4:50-1(b) was not satisfied.     However, there was no indication the

inspection report for the stove should have been obtained before

trial.     The notice to quit did not allege that the seals to the

burners were broken; it alleged the stove was destroyed and the

range burners were dismantled.          Defendant admitted taking apart

the burners but there remained an issue about whether the stove

was a conventional one that could be taken apart and cleaned or

one that had sealed burners that were broken by dismantling them.

The court did not resolve this issue.

     The    trial   court   rejected    defendant's   argument   that   her

handicap qualified as newly discovered evidence.           The nature of

her disability and extent of limitations plainly should have been

known to her prior to trial.     She did not claim any new disability.

However, Rule 4:50-1(f) allows a judgment to be vacated for "other

reason[s] justifying relief from the operation of the judgment or

                                   14                             A-4396-15T4
order." There is no indication the court knew the nature or extent

of defendant's alleged disability because there was no testimony

about this at the trial. The court found that defendant dismantled

the    smoke    detectors        without    consideration    of    her    subsequent

representation that she could not reach over her head.                     There was

no evidence she lived with anyone or had assistance.

       The danger of disconnecting the smoke detectors is obvious

in     a    multi-tenant     apartment       building.       However,      plaintiff

proceeded in this eviction action under N.J.S.A. 2A:18-61.1(c) and

is required to prove by the preponderance of the evidence that

defendant willfully or by gross negligence damaged the smoke

detectors.          Plaintiff showed evidence of damage to the smoke

detectors (because they were disabled) but not that defendant did

this       willfully   or   by    gross    negligence,    given    her    allegation

regarding disability.             On these proofs, the court should have

granted       the   order   to    show     cause   to   vacate    the    judgment   of

possession and ordered a rehearing because the landlord did not

show the type of stove, whether it was damaged, or that plaintiff

disabled the smoke detectors.

       Defendant raises issues on appeal regarding the Americans

with Disabilities Act 42 U.S.C. §§ 12101 to 12213.                          We "will

decline to consider questions or issues not properly presented to

the trial court when an opportunity for such a presentation is

                                            15                               A-4396-15T4
available."     Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234

(1973).    This issue was not presented to the trial court.

     Defendant also requests a different judge if there is a

remand.    However, the fact that the judge ruled against a party

is not grounds for disqualification.           See Strahan v. Strahan, 402

N.J. Super. 298, 318 (App. Div. 2008) ("Bias cannot be inferred

from adverse rulings against a party.").          In addition, the record

does not support the need for disqualification.3             We decline to

direct the assignment of a different judge.

     After carefully reviewing the record and the applicable legal

principles, we conclude that defendant's further arguments are

without    sufficient   merit   to   warrant    discussion   in   a   written

opinion.    R. 2:11-3(e)(1)(E).

     Reversed and remanded for a new hearing.            We do not retain

jurisdiction.




3
  Defendant appeals the orders that denied a stay of eviction and
that granted orderly removal. Each of the orders is moot in light
of our orders that stayed execution of the eviction. See Redd v.
Bowman, 223 N.J. 87, 104 (2015) (providing that an issue is moot
when the decision sought in a matter, when rendered, can have no
practical effect on the existing controversy).

                                     16                               A-4396-15T4
