SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4523-17T1

119 59 WNY, LLC,

Plaintiff-Appellant,

v.

GUSTAVO MARTINEZ,

Defendant-Respondent.

_________________________

Submitted April 2, 2019 – Decided May 15, 2019

Before Judges Yannotti and Rothstadt.

On appeal from Superior Court of New Jersey, Law 

Division, Hudson County, Docket No. LT-012328-17.

John V. Salierno, attorney for appellant.

Kathleen A. Walrod, attorney for respondent.

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.
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Plaintiff appeals from the trial court's March 15, 2018 decision to vacate 

a consent judgment in this landlord-tenant dispute, and the subsequent dismissal 

of its complaint. We affirm. 

I.

We briefly summarize the relevant facts and procedural history. Since at 

least 2009, defendant has leased apartment eleven in a building in the Town of 

West New York (the Town). During that time, defendant was the superintendent 

of the building and, as a result, paid a discounted monthly rent. 

The building's prior owner, Jose Arze, sent defendant a notice to quit, and 

subsequently filed a complaint on June 15, 2016, seeking a judgment for 

possession under N.J.S.A. 2A:18-61.1(m) (landlord conditioned tenancy upon 

tenant's employment as a superintendent, janitor, or other capacity and such 

employment is being terminated). Defendant and Arze thereafter entered into a 

consent to enter judgment, whereby they agreed that defendant would "resume 

his duties as superintendent of the property and resume paying the discounted 

rent of $315.00." 

In 2017, Arze informed the tenants in the building that he sold the 

premises to plaintiff. Thereafter, plaintiff sent defendant a notice to quit, which 

stated that defendant's employment as superintendent was terminated as of June 
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11, 2017. Plaintiff subsequently sent defendant another notice to quit which

stated that the new monthly rent would be $984.89, and required defendant to 

sign an attached lease by September 30, 2017. Defendant did not sign the lease. 

On October 3, 2017, plaintiff filed a verified complaint seeking a 

judgment of possession for failure to pay rent, N.J.S.A. 2A:18-61.1(a), for 

failure to pay rent after a rent increase, N.J.S.A. 2A:18-61.1(f), and for refusing 

reasonable changes in the terms and conditions at the end of the lease term, 

N.J.S.A. 2A:18-61.1(i). 

On December 12, 2017, plaintiff and defendant executed a consent to enter 

judgment, which the parties placed on the record in court the same day. The 

settlement required defendant to file a grievance with the Town's Rent Control 

Board (RCB) to determine his apartment's legal rent. Defendant agreed to pay 

$646 monthly, without prejudice, until the RCB determined the legal rent for 

the apartment. 

On January 5, 2018, plaintiff filed a certification pursuant to Rule 6:7-1(e) 

to enforce the settlement. Plaintiff asserted that defendant had not filed a 

grievance with the RCB and failed to pay the agreed-upon rent for January 2018. 

On January 16, 2018, defendant filed a certification with the court, in which he 

asserted that the RCB would not accept his grievance because he "do[es] not 
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contest [the] legal rent." He also stated he "tried to pay rent[, but plaintiff]

w[ould] not accept it." On the same date, the judge ordered plaintiff to show 

cause why the previously-entered consent judgment should not be vacated. 

The parties appeared in court on January 24, 2018. After hearing oral 

arguments from counsel, the judge found that it was impossible for defendant to 

comply with the consent judgment. The judge noted that the most recent rent 

registration that plaintiff filed with the RCB listed defendant's total rent as $320 

per month. The judge stated that defendant could not ask the RCB to determine 

if monthly rent of $646 is permitted.

The judge required plaintiff to submit an application to the RCB within 

thirty days for a determination as to the monthly rent plaintiff could charge for 

defendant's apartment. The judge continued the matter for thirty days, and left 

the remaining settlement terms in place. On March 15, 2018, after hearing 

further argument by the parties' attorneys, the judge vacated the consent 

judgment and scheduled the matter for trial. 

The parties appeared for trial on April 12, 2018. Plaintiff's attorney called 

David Sulimoni, one of plaintiff's managing members. Sulimoni testified that 

when plaintiff purchased the property, defendant was employed as the 

superintendent for the building. He stated that plaintiff terminated defendant's 
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employment as the superintendent and thereafter proceeded to collect the full 

rental amount for the apartment. 

Sulimoni also identified the 2017 rent registration statement that plaintiff 

had filed with the RCB, which listed plaintiff as the owner, Sulimoni as the 

superintendent, and defendant's monthly rent as $984.89. Sulimoni also 

identified the 2002 rent registration statement for the building, filed by a 

different owner before defendant's tenancy, which listed the monthly rent for a 

different apartment occupied by the superintendent, as $639.23. 

The trial resumed on April 23, 2018. Defense counsel asked the judge to 

allow defendant's witness, Ana Luna, to testify before plaintiff completed the 

presentation of its case because she was the Town's rent control secretary and 

had been in court all morning. Plaintiff's counsel initially objected, but 

withdrew the objection and the judge allowed defendant to call Luna. 

Luna testified that the RCB generally accepts a landlord's annual rent 

registration statement and the RCB does not review the statement unless 

requested to do so. She said the registration statements set forth the rent that 

the owner is collecting, and the annual increases that are permitted under the 

Town's rent control ordinance, which are based on the Consumer Price Index

(CPI). Luna noted that the 2016 registration statement for plaintiff's building
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reported that the monthly rent for defendant's apartment was $320, and the 

statement for 2017 reported that the new rent was $984.89. Luna stated that the 

2017 statement does not "show the appropriate rent" and a matter was pending 

before the RCB to determine what the rent should be. She noted that the RCB 

was scheduled to hear the matter on May 21, 2018.

Plaintiff's counsel was cross-examining Luna, when the judge questioned 

whether plaintiff could establish the rent that it could lawfully charge for 

defendant's apartment. Defendant's attorney thereafter moved to dismiss the 

complaint, arguing that plaintiff could not prevail on its action for possession of 

the leased premises. 

The judge pointed out that plaintiff had not completed the presentation of 

its case. The judge suggested that plaintiff's counsel speak with his client and 

consider accepting defendant's settlement offer of payment of an increased rent 

without prejudice, pending a decision by the RCB as to the amount of rent that

plaintiff could lawfully charge. Plaintiff's counsel advised the judge that his 

client would not accept the offer.

Thereafter, defendant's attorney renewed her application for dismissal of 

the complaint. The judge stated that he was exercising his authority under Rule 

611, and could curtail the matter in order "to avoid [the] needless consumption"
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of time. The judge noted that an application was pending before the RCB to 

determine whether plaintiff could charge defendant rent in the amount of 

$984.89 per month. The judge stated

This is a complaint for eviction based upon a failure to 

pay a rent increase and a refusal of reasonable changes 

in terms and conditions, a new lease – in essence, 

signing a new lease, failure to sign a lease with 

reasonable lease terms, one of which is agreeing to 

$984.89 rent increase.

There's been no determination by the West New

York [RCB] as to whether this landlord is, indeed, 

entitled to $984.89 rent. It appears, and the facts seem 

to be on the landlord's side[,] that there was a credit 

given to this defendant for his services as a 

super[intendent]. The problem, however, is that 

whoever owned this building before this present 

landlord, instead of putting the base rent on the form, 

listed the discounted rent as the base rent. And that now 

has to be corrected. [It is] not for the [c]ourt to 

determine what the rent is; the [c]ourt has to wait and 

give full deference to the West New York [RCB], 

[which] on May 21st, 2018, will be . . . having a hearing 

for [the] purpose of [reviewing] all the rents for this 

building.

[It is] not the [c]ourt's job to make that decision 

before the West New York [RCB] or to make that 

decision period. There are mechanisms in place to 

address what the rent should be. The parties can avail 

themselves of those administrative proceedings in the 

cities [before] the rent leveling boards if they ch[o]ose 

to. . . . [U]ntil [the] time these parties get a decision, 

the last legal rent in this case that has not been 
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challenged by anyone was $320 for apartment number 

[eleven].

So the complaint to evict [defendant] for failure 

to accept that rent has to be dismissed because the 

landlord has the burden to prove that the [$]984.89 is a 

legal rent and [the landlord cannot] do that today. [The 

landlord does not] have a determination from the 

[RCB]. The last time [the owner] had a legal rent was 

the [$]320 that had actually not been contested to by 

any party.

The judge added that he understood that ultimately plaintiff may be 

entitled to more than $320 per month in rent for defendant's apartment. The 

judge stated, however, that until the RCB hears the matter and makes a 

determination, plaintiff may not "move forward" with its action for possession 

of the premises.1 This appeal followed.

II. 

On appeal, plaintiff argues the trial court erred by vacating the consent 

judgment memorializing the agreement between the parties. Plaintiff contends 

defendant failed to show that the consent judgment was entered fraudulently or 

that vacation of the judgment was warranted due to compelling circumstances. 

 

1 According to defendant, the RCB considered the matter in October 2018, and 

determined that the rent that plaintiff could lawfully charge for the apartment 

was $299.73 per month. 
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Plaintiff also contends defendant failed to establish that he was unable to comply 

with the settlement terms.

"A consent judgment has been defined as an agreement of the parties 

under the sanction of the court as to what the decision shall be." Cmty. Realty 

Mgmt., Inc. v. Harris, 155 N.J. 212, 226 (1998) (quoting Stonehurst at Freehold 

v. Twp. Comm. of Freehold, 139 N.J Super. 311, 313 (Law Div. 1976)). A 

consent judgment is "both a contract and a judgment[;] it is not strictly a judicial 

decree, but rather in the nature of a contract entered into with the solemn 

sanction of the court." Ibid. (alteration in original) (quoting Stonehurst, 139 

N.J. Super. at 313). 

"[A] consent judgment may only be vacated in accordance with R[ule] 

4:50-1." Ibid. (quoting Stonehurst, 139 N.J. Super. at 313). Rule 4:50-1 

provides that:

[T]he court may relieve a party or the party's legal 

representative from a final judgment or order for the 

following reasons: (a) mistake, inadvertence, surprise, 

or excusable neglect; (b) newly discovered evidence 

which would probably alter the judgment or order and 

which by due diligence could not have been discovered 

in time for a new trial under R[ule] 4:49; (c) fraud 

(whether heretofore denominate intrinsic or extrinsic), 

misrepresentation, or other misconduct of an adverse 

party; (d) the judgment or order is void; (e) the 

judgment or order has been satisfied, released or 

discharged, or a prior judgment or order upon which it 
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is based has been reversed or otherwise vacated, or it is 

no longer equitable that the judgment or order should 

have prospective application; or (f) any other reason 

justifying relief from the operation of the judgment or 

order. 

"Courts should use Rule 4:50-1 sparingly, in exceptional situations; the 

Rule is designed to provide relief from judgments in situations in which, were it 

not applied, a grave injustice would occur." Hous. Auth. of Morristown v. Little, 

135 N.J. 274, 289 (1994). Moreover, a trial court's decision under Rule 4:50-1 

"warrants substantial deference, and should not be reversed unless it results in a 

clear abuse of discretion." US Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 

(2012) (citing DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 261 (2009); Little, 

135 N.J. 274, 283 (1994)). 

Here, the trial court did not cite Rule 4:50-1 when it vacated the consent 

judgment. Defendant argues, however, that Rule 4:50-1(a) and (e) authorized 

the court to set aside the judgment. 

Rule 4:50-1(a) "encompass[es] situations in which a party, through no 

fault of its own, has engaged in erroneous conduct or reached a mistaken 

judgment on a material point at issue in the litigation." DEG, 198 N.J. at 262. 

The Rule "is intended to provide relief from litigation errors 'that a party could 
11 A-4523-17T1

not have protected against.'" Id. at 263 (quoting Cashner v. Freedom Stores, 

Inc., 98 F.3d 572, 577 (10th Cir. 1996)). 

Rule 4:50-1(a) does not apply in these circumstances. Here, the parties 

entered into an agreement with the understanding that defendant could petition 

the RCB for a determination that the rent plaintiff intended to charge for his 

apartment was not authorized under the Town's rent control ordinance. It is 

undisputed that defendant attempted to file that petition, but the RCB refused to 

accept it. Defendant may have been mistaken in agreeing to seek review by the 

RCB, but this was a mistake he could have avoided by becoming familiar with 

the RCB's procedures. 

Relief from the consent judgment was, however, permitted under Rule

4:50-1(e). To afford relief under this subsection of the rule, there must be a

showing "of changed circumstances, and '[t]he party seeking relief bears the 

burden of proving that events occurred subsequent to the entry of a judgment 

that, absent the relief requested, will result in 'extreme' and 'unexpected' 

hardship.'" DEG, 198 N.J. at 265-66 (alteration in original) (quoting Little, 135 

N.J. at 285).

As noted previously, defendant entered into the settlement agreement with 

the understanding that he could apply to the RCB and obtain a determination as 
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to the amount of rent plaintiff could lawfully charge for the premises. Defendant 

attempted to comply with this requirement, but the RCB refused to accept his

petition. Defendant's inability to seek review by the RCB of the rent that 

plaintiff was lawfully permitted to charge for defendant's apartment was a 

"changed circumstance," which justified relief under Rule 4:50-1(e). 

Furthermore, failure to vacate the judgment would leave defendant with no 

recourse. He would either be required to pay the substantially higher rent or be 

removed from the leased premises. 

On appeal, plaintiff argues that defendant could have filed a complaint 

with the RCB asserting that he was being overcharged, and that the RCB's staff 

erred by refusing to accept the petition. However, the record shows that the 

RCB's staff refused to accept the complaint. Whether the RCB's staff did so in 

error is beside the point. Because the RCB's staff refused to accept defendant's 

petition, defendant could not comply with the consent judgment. 

We therefore reject plaintiff's contention that the trial court erred by 

vacating the consent judgment. 

III.

Plaintiff further argues that the trial court erred by dismissing its 

complaint because it had not finished Luna's cross-examination and it had not 
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completed the presentation of its case. Plaintiff argues that it was denied due 

process as a result of the court's premature dismissal of the complaint.

On appeal, plaintiff argues that in dismissing the complaint, the court 

failed to comply with Rule 4:37-2(b), which states that:

After having completed the presentation of the 

evidence on all matters other than the matter of 

damages (if that is an issue), the plaintiff shall so 

announce to the court, and thereupon the defendant, 

without waiving the right to offer evidence in the event 

the motion is not granted, may move for a dismissal of 

the action or of any claim on the ground that upon the 

facts and upon the law the plaintiff has shown no right 

to relief. Whether the action is tried with or without a 

jury, such motion shall be denied if the evidence, 

together with the legitimate inferences therefrom, could 

sustain a judgment in plaintiff's favor.

We apply this standard when reviewing a trial court's dismissal under the Rule. 

See Hitesman v. Bridgeway, Inc., 218 N.J. 8, 26 (2014) (citing Fox v. Millman, 

210 N.J. 401, 428 (2012)). 

As we have explained, during the presentation of plaintiff's case, 

defendant asked to present testimony from Luna, who had been waiting in court 

to testify. The judge exercised his authority under Rule 611(a), and allowed 

defendant to present testimony from Luna before plaintiff had completed the 

presentation of its case. Rule 611(a) provides that:
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The court shall exercise reasonable control over the 

mode and order of interrogating witnesses and 

presenting evidence so as to (1) make the interrogation 

and presentation effective for the ascertainment of the 

truth, (2) avoid needless consumption of time, and (3) 

protect witnesses from harassment or undue 

embarrassment. 

[N.J.R.E. 611(a).]

Thus, Rule 611(a) allowed the judge to hear Luna's testimony before 

plaintiff completed the presentation of its case, but the Rule did not authorize 

the court to dismiss plaintiff's complaint. See Peterson v. Peterson, 374 N.J. 

Super. 116, 125 (App. Div. 2005). The dismissal of a complaint during trial is 

governed by Rule 4:37-2. Here, the court erred by dismissing the complaint 

before plaintiff completed its cross-examination of Luna and before plaintiff 

completed the presentation of its case. See Perth Amboy Iron Works, Inc. v. 

Am. Home Assurance Co., 226 N.J. Super. 200, 215 (App. Div. 1988), aff'd o.b., 

118 N.J. 249 (1990).

We are nevertheless convinced the error was harmless. See R. 2:10-2. As 

stated previously, the annual registration statement for 2016 reported that the 

total rent for defendant's apartment was $320, and the statement that plaintiff 

filed for 2017 reported that the total rent had increased to $984.89. Luna 
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testified that annual increases are generally limited to the increase in the CPI, 

and the new rent reported for 2017 was not "the appropriate rent."

In cross-examining Luna, plaintiff's counsel apparently sought to establish 

that the rent reported for 2017 was lawful because defendant had been paying a 

discounted rent while he was serving as the building's superintendent. Plaintiff's 

counsel also may have been attempting to show that the rent for 2017 was lawful, 

based on the rent charged for the apartment before defendant began to reside 

there. Luna could not, however, provide any definitive interpretations of the 

Town's rent control ordinance, nor could she offer an opinion as to the amount 

of rent that plaintiff could lawfully charge for defendant's apartment. 

We note that ordinarily, a property owner in a municipality subject to rent 

control is not required to obtain the approval of a RCB every time the owner 

tenders a new lease to a tenant with an increase in rent. In this case, however, 

the annual registration statements for 2016 and 2017 showed an increase in rent 

for defendant's apartment, which exceeded the increase permitted under the 

Town's rent control ordinance. Furthermore, a matter was pending before the 

RCB, and it was expected to determine the rent that plaintiff could lawfully 

charge for defendant's apartment.
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The trial judge correctly found that, under these circumstances, there was 

an issue as to the lawful rent plaintiff could charge for defendant's apartment, 

and that the RCB should make that determination in the first instance, based on 

its interpretation and application of the Town's rent control ordinance. The

judge correctly decided that plaintiff should exhaust its administrative remedies

before the RCB before seeking to remove defendant from the premises. See

Brunetti v. Borough of New Milford, 68 N.J. 576, 588-91 (1975). 

Affirmed.