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N.J.S.A. 46:8-21.1. We affirm the judgment in favor of the plaintiff and the dismissal of defendant's counterclaim.">
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(NOTE: The status of this decision is unpublished.)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4812-05T14812-05T1
CHASITY ALVARADO,
Plaintiff-Respondent,
v.
ESTRELLA PIEMONTESE,
Defendant-Appellant,
v.
JUAN VELASQUEZ,
Third Party Defendant.
Submitted December 13, 2006 - Decided January 9, 2007
Before Judges Fuentes and Baxter.
On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part,
Passaic County, PAS-DC-48-06.
Estrella Piemontese, appellant pro se.
Chasity Alvarado, respondent pro se.
PER CURIAM
Following a non-jury trial, defendant/landlord Estrella Piemontese appeals from a Special Civil Part judgment in the
sum of $2,782.50 against her for improperly withholding the plaintiff/tenant's security deposit. N.J.S.A. 46:8-21.1. We
affirm the judgment in favor of the plaintiff and the dismissal of defendant's counterclaim.
Plaintiff and defendant entered into a residential lease on October 26, 2005, which included a one year term to
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begin on October 31, 2005, and end on October 31, 2006. Rent was $795.00 per month, and plaintiff paid a security
deposit of $1,192.50.
Plaintiff testified that as soon as she moved into the apartment on October 27, 2005, she heard "an animal in the
ceiling scratching." She called defendant the next day to notify her that "there's something living in the ceiling."
During that conversation, plaintiff "told [defendant] these are not livable conditions . . . [a]nd . . . [she] wanted out of
that contract before it started and that [she] was leaving." According to plaintiff's testimony at trial, defendant
initially insisted that the conditions were livable, but agreed to re-let the apartment, accepting plaintiff's proposal
to deduct up to two weeks of rent while the apartment was vacant, and to return the balance. Plaintiff moved out
on October 29, 2005. Other than describing the animal in the ceiling, plaintiff did not elaborate further at trial.
Instead, she produced ten photographs depicting the conditions.
In her testimony, defendant denied that there was anything wrong with the apartment. She contended that plaintiff
had decided to move out because of a fight with her boyfriend and because plaintiff's large overstuffed furniture
could not fit through the doors of the apartment. Defendant also claimed that the photographs plaintiff introduced
into evidence did not depict the second floor apartment defendant had rented to plaintiff, but instead depicted
part of the third floor. Defendant also claimed that plaintiff had damaged the apartment by drilling a hole to the
third floor, by moving her furniture through doorways that were too narrow, and by leaving the windows open
when she moved out, thereby allowing rainwater to enter.
Defendant did not return any of the security deposit to plaintiff because of the damage she claimed plaintiff had
caused. Although the record is not entirely clear on this point, it appears that defendant did send plaintiff an
itemized list of those damages and the cost of repair. When plaintiff did not receive any of her security deposit back,
she filed suit against defendant demanding the return of the entire security deposit and the first month's rent, a
total of $1,987.50.
Defendant filed an answer and counterclaim, seeking rent for the balance of the lease, and repair costs of $1,905.
After applying the security deposit against that sum, the total sought by defendant was $9,458.
After hearing the testimony, the court rendered judgment in favor of plaintiff. The judge made these findings of
fact:
[T]he plaintiff went to take occupancy and found . . . deplorable conditions. It was not
livable in this condition. . .                                                                                                 . I do believe that the tenant was justified in leaving. . .
Security deposit was demanded and was not produced in accordance with the Security
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Deposit Law. . .                                                                                                              . I find a violation of the Security Deposit Act.
After making an allowance for two weeks rent while the apartment was vacant once plaintiff left, the court ordered
the return of $397.50, which was the remainder of the first month's rent. The judge then doubled the $1,192.50
security deposit, and entered judgment in favor of plaintiff in the amount of $2,782.50. The judge did not make any
explicit findings on defendant's counterclaim, nor did he dismiss it. This appeal followed. Defendant's motion for a
stay of judgment pending appeal was denied by the trial judge, and later by us.
On appeal, defendant argues that the judge committed reversible error by accepting plaintiff's testimony; by
finding that defendant violated the security deposit statute, N.J.S.A. 46:8-21.1; and by failing to enter judgment in
defendant's favor on her counterclaim. We disagree and affirm.
I.
As to defendant's claim that the judge erred when he
accepted as truthful plaintiff's testimony, we note that the trial judge was presented with starkly contrasting
descriptions of the conditions in the subject apartment. The judge heard the testimony of both parties, examined
the physical evidence that was introduced, including the photographs, the lease, and a letter from plaintiff to
defendant, and thereafter resolved the factual disputes in plaintiff's favor. On appeal, except in the rarest of
circumstances, we do not make our own findings of fact, nor do we make credibility determinations. Rova Farms
Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). The task of evaluating the conflicting contentions of
the parties and deciding whom to believe is the trial judge's responsibility. Ibid. We will not substitute our
assessment of the evidence for his, and indeed, we are obliged to accept his findings of fact as long as they could
reasonably have been made on the evidence before him. State v. Locurto, 157 N.J. 463, 471 (1999). We have
carefully considered the record and conclude that defendant has failed to demonstrate any reversible error in the
judge's findings of fact. We accordingly accept those findings.
We now turn to the judge's conclusion that defendant violated the statute governing the return of a tenant's
security deposit. That statute provides, in part, that the landlord is obligated to "return . . . the sum [paid for
security] plus the tenant's portion of the interest or earnings accumulated thereon, less any charges expended in
accordance with the terms of a . . . lease . . . to the tenant." N.J.S.A. 46:8-21.1. Further, if the landlord violates that
statute, "the court . . . shall award recovery of double the amount of said monies." Ibid. If the tenant has not violated
the lease or damaged the premises, the landlord is not entitled to withhold any portion of the security deposit.
Lorril Co. v. LaCorte, 352 N.J. Super. 433, 442 (App. Div. 2002).
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Here, the judge did not make specific findings that the tenant did not damage the premises. Instead, he concluded
that defendant's failure to return the security deposit to the plaintiff constituted a violation of N.J.S.A. 46:8-21.1. By
so doing, the judge implicitly rejected defendant's claim that plaintiff had damaged the walls or doorways with her
furniture and that she had allowed rainwater to enter through an open window. As we have noted, the trial judge's
findings of fact are entitled to our deference. Rova Farms, supra, 65 N.J. at 484. Defendant has presented no
meritorious argument that would cause us to disturb those findings. We accordingly accept the judge's conclusion
that defendant violated N.J.S.A. 46:8-21.1 when she withheld plaintiff's security deposit.
Defendant further claims that the judge's rejection of her counterclaim was error. Although it would have been
preferable for the judge to have explicitly stated his findings, his reasoning and ultimate conclusion concerning the
counterclaim can be discerned from his findings concerning plaintiff's complaint. A portion of the counterclaim
sought damages for the eleven months remaining on the lease. The judge found the conditions in the apartment
were "deplorable" at the time plaintiff took occupancy, and that plaintiff was justified in vacating the premises a
mere two days after moving in because the apartment "was not livable."
The judge's determination that a tenant is entitled to an abatement of rent if the conditions in the premises do not
satisfy minimum standards of habitability was correct. Marini v. Ireland, 56 N.J. 130, 144-46 (1970). Therefore,
because the judge found that the conditions in the apartment were so "deplorable" that plaintiff was justified in
moving out, it is beyond dispute that the judge would have also concluded that defendant would not be entitled
to collect rent for the remaining eleven months. The judge's findings on the complaint therefore constitute an
implicit rejection of the counterclaim for eleven months of unpaid rent. That result was sound in light of the judge's
finding that "[plaintiff] was justified in leaving."
The remaining portion of the counterclaim sought compensation for the damage done to the apartment. Here, too,
the judge's favorable ruling on the complaint is indicative of his analysis of the counterclaim. The same reasoning
that caused the judge to enter judgment against the defendant for having violated N.J.S.A. 46:8-21.1, namely that
plaintiff had not damaged the premises, would also have caused the court to reject the defendant's claim for
reimbursement due to any damage. Because the judge concluded that defendant should have returned the entire
security deposit, it would have been impossible for the judge to have also found that plaintiff damaged the
apartment. As we have noted, we will not disturb the judge's findings of fact where, as here, they are based on
competent evidence in the record. Rova Farms, supra, 65 N.J. at 484.
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Affirmed.
Defendant allowed plaintiff to move into the apartment a few days before the lease began.
(continued)
(continued)
8
A-4812-05T1
January 9, 2007
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