Wednesday, June 22, 2011
The subsequent discussion makes it clear that this was not an objection to defense counsel's plan to make a motion for dismissal at the close of Allen's case. The discussion was about the scope of defense counsel's cross-examination. On defense counsel's representation that he would not question Allen about the contract if there was a stipulation as to her signature because the question was a legal one, Allen's attorney agreed to the stipulation. He then moved on to discuss other outstanding pre-trial issues. When defense counsel moved for a directed verdict at the close of Allen's case, there was no objection.
Under these circumstances, we reject Allen's claim that the defense was inadequately pled or waived. It is clear that the parties' understood that in pleading assumption of risk as an affirmative defense, defendant gave effective notice of its intention to rely on the contract's exculpatory clauses. Allen's arguments to the contrary are without sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).
Tuesday, June 21, 2011
We also conclude that the agreement to arbitrate contractual claims, while sufficiently clear when read alone, is not at all clear when the agreement is read as a whole. The contract does not articulate or explain the relationship between the clause addressing alternate dispute resolution under the New Home Warranty Act and the arbitration clause. Read together, these provisions are so confusing that they "confound any clear understanding of the parties' undertaking" with respect to resolution of disputes. See Rockel v. Cherry Hill Dodge, 368 N.J. Super. 577, 583 (App. Div.), certif. denied, 181 N.J. 545 (2004).Accordingly, we conclude that it was error to compel arbitration of the contractual and negligence claims as well.
Notice of the intended action is essential to the landlord obtaining a judgment of possession. First, a notice to cease must be sent providing a tenant with notice of the offending conduct and an opportunity to alter that conduct. RWB Newton Assocs. v. Gunn, 224 N.J. Super. 704, 709-10 (App. Div. 1988). Second, if the tenant does not cease the late payments, a notice to quit is mailed informing the tenant that the tenancy has been terminated and explaining the basis of the termination, thereby requiring the tenant to vacate the premises. See Carteret Props. v. Variety Donuts, Inc., 49 N.J. 116, 123 (1967). The Notice to Quit must "specify in detail the cause of the termination of the tenancy."N.J.S.A. 2A:18-61.2.
Accordingly, a landlord's failure to comply with the notice requirements negates the salutary purpose of the Act, precluding entry of judgment in favor of the landlord. Paige, supra, 346 N.J. Super. at 383-84. Because the Act "does not specify any limit on the number of months that must pass before the Notice to Cease becomes ineffective or must be reissued, nor does it state how many late payments of rent constitute 'habitual' late payment of rent under the statute[,]" the Court has instructed judges to apply "a flexible[,]" rather than a strict, time period so that a determination that the tenant's conduct is "habitual" becomes "a function of time and circumstances." A.P. Dev. Corp. v. Band, 113N.J. 485, 495-96 (1988).
Wednesday, June 1, 2011
defendant-landlord had a duty to the lessee of a single-family
dwelling to maintain the furnace and to inspect periodically for
defects in order to prevent a hazardous condition leading to a
fire and the lessee's death. Although the lease was for the
entirety of the premises, the controlling law is that expressed
in Restatement (Second) of Torts § 358, rather than the holdings
of Patton v. Texas Co., 13 N.J. Super. 42 (App. Div.), certif.
denied, 7 N.J. 348 (1951), and Szeles v. Vena, 321 N.J. Super.
601 (App. Div.), certif. denied, 162 N.J. 129 (1999).
N.J.S.A. 34:15-8, the fellow-servant provision of the Workers' Compensation Act, N.J.S.A. 34:15-1 to -128, bars a third-party tortfeasor's action against the co-worker seeking indemnification and contribution.