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NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2851-05T12851-05T1
RACHEL AFFORDABLE HOUSING,
Plaintiff-Appellant,
v.
ROBERT DELUCA,
Defendant-Respondent.
Argued: December 6, 2006 - Decided May 22, 2007
Before Judges A. A. RodrÃguez and Sabatino.
On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Morris
County, LT-817-05.
Mark A. Rothberg argued the cause for appellant (Wilf & Silverman, attorneys; Joseph D.
Feudale and Mr. Rothberg, on the brief).
Gerald R. Brennan argued the cause for respondent (Legal Services of Northwest Jersey,
Inc., attorneys; Mr. Brennan, on
the brief).
PER CURIAM
In this landlord/tenant dispute, Rachel Affordable Housing (plaintiff), appeals from the denial of its request for a
judgment of possession for the premises occupied by its long-time tenant Robert DeLuca (defendant). We affirm.
The pertinent facts are as follows. Plaintiff sent a notice terminating defendant's tenancy at Rachel Gardens
as of March 19, 2005. When defendant refused to vacate the premises, plaintiff sued for possession in the Special
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Civil Part. That litigation concluded with a settlement. On May 17, 2005, represented by counsel, the parties
stipulated that after October 17, 2005, a judgment of possession would be entered in favor of plaintiff, if after a
hearing the court found a breach of the stipulation conditions. The terms of the stipulation are:
1. This matter shall be carried for five (5) months to October 17, 2005;
2. In the event the Defendant complies with the conditions of the Stipulation, this
matter shall be Dismissed.
3. Defendant hereby agrees to the following:
a. Defendant shall have no contact whatsoever, including written or verbal
communication, with the following persons, family or children: Georgette
Grasso, Lois Schreiner, Michelle Schmidt, Victor Montigo, Jeanne Fichera, and
Mary Ann Lynn in the rental office.
b. Defendant shall not work on cars, bicycles, or any other machinery on the
grounds. All bicycles must be kept in designated bike racks or in the Defendant's
apartment (As per rule 16 of Lease [Agreement] rules).
c. Defendant shall not be allowed to keep outside storage of any type on the
grounds, balconies, hallways, etc.
d. Defendant shall not keep unregistered vehicles on the grounds, and
registered vehicles are to be limited to two (2) inspected vehicles with a current
registration, a copy of which is to be provided to the rental office.
e. Defendant will not rev his car engine(s) to annoy neighbors.
f. Defendant is not permitted to flash his car lights or beep his horn on the
grounds to annoy neighbors.
g. Defendant shall not be permitted to bang on his ceiling.
h. Defendant shall not play loud music (per lease rule 21).
i. [Deleted by the parties.]
j. Defendant shall only be permitted to pull into parking spaces head on. No
backing into parking spaces.
k. All calls regarding issues relating to Rachel Gardens are to be directed in
writing through attorneys only, other than maintenance issues, which may be
directed to the maintenance staff.
l. Bikes must be kept on a bike rack when not in use (as per "b" above).
m. Defendant may not keep more than two (2) vehicles on the complex grounds,
which vehicles must be registered with the rental office (as per "d" above).
n. Defendant shall not park his vehicle next to neighbor Grasso's vehicle, and
shall utilize the building's handicapped parking space if available in front of his
apartment.
o. Defendant may not engage in any harassing or intimidating behavior to
another Tenant in the apartment complex.
4. In the event Defendant breaches this Agreement by violating any of the above listed
agreed to terms, the Plaintiff, upon serving Defendant's counsel with written notice
listing the alleged breach, may request an evidentiary hearing with the Court. If it is
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determined by the Court that the Defendant breached the terms of this Agreement,
the Plaintiff shall receive a Judgment of Possession against the Defendant, and regain
possession of the Defendant's apartment. The Defendant shall have the right to defend
and contest at the hearing.
5. The Defendant shall immediately withdraw any pending actions and/or complaints
filed against the Plaintiff Landlord to date without prejudice. Plaintiff waives any
applicable statute of limitations. Defendant's counsel shall provide Plaintiff's counsel
written confirmation of said withdrawal.
Eventually, plaintiff alleged that defendant repeatedly violated the terms of the stipulation and requested an
evidentiary hearing in order to terminate the tenancy. Judge David Rand conducted an extensive evidentiary
hearing. He heard testimony from three plaintiff witnesses: Mary Ann Lynn, Rachel Garden's manager; Sam Smilov,
the head maintenance person; and Georgette Grasso, a former tenant whose apartment was next to defendant's.
The judge also heard from three defense witnesses: defendant, Montville Township Lieutenant Charles Helmstetter,
and Anthony LaRusso, D.C. The judge also reviewed photographs taken by Smilov or Grasso, as well as other
exhibits.
Smilov has the use of an apartment at Rachel Gardens, as part of his employment. He testified about an
interaction on September 26, 2005, between defendant and himself. According to Smilov, on that day, he was
taking photographs of defendant's El Camino. This was done in the presence of and at the direction of, plaintiff's
counsel. Smilov testified that defendant threatened to shoot him. Defendant denied making any threats. The judge
found that even if the events occurred, it was not a breach of paragraph 3o of the stipulation because Smilov was
not a tenant.
At the conclusion of the evidentiary hearing, the judge found that defendant had not violated the terms of
the stipulation. In relevant part, the judge made the following findings:
To say that [defendant] is eccentric perhaps would be an understatement. He is
eccentric. But I don't mean that in a negative sense. I mean that he is -- obviously has
issues. He's disabled entirely. He admits to being H.I.V. positive. And he owns rather odd
and, I will say, unusual vehicles. That's among many eccentric - eccentricities. And I only
say that in the sense that, if there is such a thing as a "norm" of behavior, which I doubt
there is, [defendant] probably deviates from that norm . . .
The judge commented on the credibility of plaintiff's witness Grasso. The judge found:
Certainly Ms. Grasso is motivated to have an animus against [defendant]. They were
engaged in [an] ongoing Municipal Court battle, each obviously disliking the other
intensely. Indeed, Ms. Grasso said she couldn't stand [defendant] to such an extent that
she gave up her own apartment and left on August 19, 2005, hardly reflecting
objectively on her part.
Should I use such evidence as evidence to evict a person who's lived in an apartment
for over 12 years? I don't think so. Could the Plaintiff had secured better copies, perhaps
properties of the photos? Easily.
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The judge also expressed doubts about the reliability of the photographs presented by plaintiff, most of which were
taken by Grasso. The judge expressed his view that "digital photography especially is easily manipulated." The
judge made this finding:
But I must say the quality of the Plaintiff's evidence in this case reflects poorly on the
points in which the Plaintiff seeks to make.
Digital photography frequently allows date stamps, time stamps down to the minute,
easily replicated when one looks at the properties of a digital graphics file. A picture file
is nothing more than a series of digital X's and O's, 1's and 0's. Just like any other file,
you can determine the properties of the file when the photograph was taken.
I have no original photographs. I have horrific, inadequate, black and white
photocopies. Why I don't have the originals and why I don't have the properties of the
photographs; i.e., the files -- the digital files which would show when the photograph
was taken, its resolution and other items, I don't know. Is it significant? Perhaps.
In one respect, I can see a clear and problematic aspect of it. P-2, for example, which is
allegedly was taken -- was a photo taken by Ms. Grasso, I assume, with a digital camera
on May 30th, 2005 to parked the El Camino right next to Ms. Grasso's Bonneville -- by
the way, the picture is abysmally bad -- at least shows proximately two-thirds of the
hood area, driver's quarter panel of the El Camino.
But if one looks at later photographs taken the latter part of June into early July, more
particularly P-8D, one show -- one sees the [El Camino] with an entirely different
colored hood. This is anomaly is not explained. This gives rise to the Court's concern as
to the credibility of the May 30th, '05 photograph.
The judge also chastised plaintiff's counsel for being too involved in the gathering of
evidence in the case.
Finally, the judge concluded:
I find that, therefore, on all of these issues, -- and I'll go right down the
list -- every single one of them, there's a failure of proof: 3B, C, D, J, L, M, N and O. No
proof. It's more likely so than not so. Either there's lack of proof or that the proof
submitted is suspect.
In addition to dismissing the complaint for possession, the judge ordered that defendant be permitted to
remain in the apartment on the condition that he remove his 1976 El Camino from the premises. Plaintiff was
ordered to install a bicycle rack across from defendant's apartment.
On appeal, plaintiff argued that the trial court erred by: (1) its factual determination that defendant did not breach
the stipulation; and (2) discrediting the photographs presented by plaintiff. We are not persuaded.
These are essentially challenges to the fact-finding process. We have a limited scope of review of the facts
found by the trier of fact. Rova Farms Resort, Inc. v. Investors Insurance Co., 65 N.J. 474, 483-84 (1974). "[T]he
findings on which [a judgment] is based should not be disturbed unless they are so wholly insupportable as to
result in a denial of justice and that the appellate court should exercise its original fact finding jurisdiction sparingly
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and in none but a clear case where there is no doubt about the matter." Ibid. (citing Greenfield v. Dusseault, 60 N.J.
Super. 436, 444 (App. Div.), aff'd o.b., 33 N.J. 78 (1960)). We will only decide whether the findings made could have
been reasonably reached on "sufficient" or "substantial" credible evidence present in the record, considering the
proofs as a whole. State v. Locurto, 157 N.J. 463, 470-71 (1999). We must give "due regard" to the ability of the
factfinder to judge credibility. Ibid. This is so because the trial judge had an opportunity to assess the witnesses'
credibility through hearing and seeing the witnesses giving testimony. Ibid. The same standard applies to
demonstrative evidence. See State v. Scherzer, 301 N.J. Super. 363, 434 (App. Div.), certif. denied, 151 N.J. 466 (1997)
(finding that on review deference is given to the trial judge's credibility findings in admitting demonstrative
evidence).
Here, the judge found a lack of proof with regard to several allegations, including: that defendant worked on cars
on the premises; or that the El Camino had not been registered by defendant; or that defendant had parked by
backing up. The judge stated with specificity his problem with the lack of credibility of the proffered photographs
and witnesses' testimony. From our careful review of the record, we conclude that the judge's findings are
supported by adequate and credible evidence. R. 2:11-3(e)(1)(A). We, therefore, have no warrant to intervene.
Plaintiff also challenges the judge's interpretation of paragraph four of the stipulation by requiring that
notice be provided to defendant in a reasonable fashion. Specifically, plaintiff argues that the judge wrongly revised
the terms of the agreement and required a notice after every alleged breach. However, that is not the judge's ruling.
Rather, the judge found that plaintiff failed to provide reasonable notice after some alleged breaches and instead,
waited until five days before the elapse of the stipulated period to allege over twenty breaches, occurring months
before.
The judge interpreted the stipulation as containing the implied covenant of good faith and fair dealing.
"Every contract in New Jersey contains an implied covenant of good faith and fair dealing." Wade v. Kessler Inst., 343
N.J. Super. 338, 345 (2001); Palisades Properties, Inc. v. Brunetti, 44 N.J. 117, 130 (1965) (quoting 5 Samuel Williston,
Williston on Contracts § 670, 159-60 (3d ed. 1961)). The judge found that plaintiff's conduct violated that covenant.
Furthermore, this criticism by the judge was not the basis for his decision. The judge found that plaintiff
failed to meet its burden of proof.
Finally, plaintiff challenges the ruling that Smilov, the head of maintenance, was not a "tenant" as referred to
in paragraph 3o of the stipulation. The judge determined that Smilov was an agent and not a tenant. Therefore, the
interaction between Smilov and plaintiff on September 26, 2005 was not a breach of paragraph 3o of the
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stipulation.
We agree with this interpretation. Here, the language of paragraph 3o of the stipulation refers exclusively to
"tenants." We also note that paragraph 3k expressly permits plaintiff to interact with the maintenance staff. The
Supreme Court has held that when issues arise with regard to the validity of an agreement between landlord and
tenant, the tenant rather than the landlord should be favored. Cmty. Realty Mgmt., 155 N.J. 212, 226 (1998);
Carteret Properties v. Variety Donuts, Inc., 49 N.J. 116, 127 (1967). Therefore, paragraph 3o must be construed in
favor of defendant.
Affirmed.
(continued)
(continued)
11
A-2851-05T1
May 22, 2007
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