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Saracino v. Capital Properties Associates Inc.

Decided: May 1, 1958.


Goldmann, Freund and Conford. The opinion of the court was delivered by Freund, J.A.D.


[50 NJSuper Page 83] Carmela Saracino, a monthly tenant occupying an apartment in a multi-family dwelling house at No. 238 Day Avenue, Cliffside Park, New Jersey, owned by the defendant, was injured by the fall of the kitchen ceiling in her apartment. She recovered a verdict from a jury in the Bergen County Court for $2,500, based upon

the claim of negligence of the defendant in failing to repair the ceiling after the defect had been frequently called to its attention and it had agreed to repair it. Defendant appeals from the consequent judgment, arguing that it was not under any duty to repair and that the court erred in denying its motions for a judgment of dismissal and for a new trial.

Plaintiff has been a month-to-month tenant in the premises since December 1950, the rent being payable on the first day of the month. The plaintiff testified that she had complained to the prior owner of the premises for a "long time" and that the ceiling was in its deteriorating condition for about "two or three months" before December 1, 1954, when the defendant became the owner and landlord. On that day the defendant's agent called on the plaintiff for the rent. She testified that she called his attention to the ceiling which was wet, cracked and peeling, and that he promised and agreed to repair it and repeated this promise when he called for the rent the following months. Notwithstanding these promises, the ceiling was not repaired by the defendant until after the accident on February 10, 1955. On that day, half of the kitchen ceiling fell upon plaintiff's head and the doctor who responded to a call found her upon the floor.

In its answer and at the trial defendant denied that it was under a duty or had agreed to repair the ceiling, denied negligence, and asserted that plaintiff was contributorily negligent and had assumed the risk. The pretrial order states that "Ownership and control of premises by defendant are admitted * * *." However, it is not clear whether this refers to the fact that the defendant was merely the title owner maintaining the entire premises, or whether it refers to direct control over the plaintiff's apartment.

Irving Kapp, the agent who collected the rent from the plaintiff on behalf of the defendant and who was also an officer and director of the defendant corporation, testified that the first time that he learned of anything concerning the ceiling was on February 10, the date that the accident

happened. He did say, however, that he had been in the kitchen prior to that day but did not see the condition as testified to by the plaintiff.

The record does not disclose the number of families who occupy the premises. The complaint states that plaintiff occupies apartment No. 7 on the first floor. Plaintiff testified to an inspection of her apartment by an inspector from the Bureau of Tenement House Supervision; and the defendant called as a witness Charles B. Rooney, an inspector, who testified that on September 28, 1954 he made an inspection of various apartments in connection with the sale of the property. He stated "There are three apartments in the basement and there are four apartments on the second floor." Counsel for the plaintiff asserted at the oral argument that the building housing the plaintiff's apartment was a structure that came within the provisions of the Tenement House Act, and this was not controverted by counsel for the defendant. R.S. 55:1-24.

At the trial the question of liability was predicated upon whether or not there was a promise to the plaintiff to repair the ceiling made by the agent of the defendant when the latter took over active management of the premises and whether that promise was integrated in the tenancy agreement of the parties. This involved a question of fact -- whether the conversation had actually taken place; and also a question of law -- whether the defendant's promise was binding and laid the foundation for an action in tort for its breach.

Quite apart from the obligation of a landlord to repair leased premises pursuant to a covenant to repair, our Supreme Court in Michaels v. Brookchester, Inc. , 26 N.J. 379, decided on March 31, 1958, has deliberately stated, by considered dictum , that pursuant to the Tenement House Act, R.S. 55:1-1 et seq. , a landlord is under an obligation to maintain in good repair "all the parts" (R.S. 55:7-1) of any structure falling within the purview of that statute, breach of which through the injury of a tenant will give rise to an action for the damages sustained. In the Michaels

case, supra , "all parts" was taken to include a kitchen cabinet. A ceiling is much more a part of the building and we are satisfied that the statute required the defendant to maintain it in good repair. Thus the landlord was always under a legal obligation to maintain plaintiff's premises, irrespective of any contractual obligation, and accordingly became liable for the injuries to the plaintiff if it was proved that the failure to repair was negligence. Since the issue of negligence was in fact submitted to the jury, that is, whether the defendant had notice of the condition of the ceiling and a reasonable time had been afforded to the defendant to ...

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