Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Berzito v. Gambino

Decided: March 5, 1971.

LILIAS BERZITO, PLAINTIFF,
v.
VINCENT GAMBINO, DEFENDANT



McKenzie, J.d.c.

Mckenzie

Presented to the court in this case is the question whether a tenant may recover from the landlord all or a portion of the rent paid in full during a period when the landlord had breached his warranty of habitability.

In June 1968 plaintiff rented from defendant the first-floor apartment at 608 Montgomery Street, Elizabeth, New Jersey. When the second-floor tenants moved out in September she requested permission from the landlord to move to that apartment, which had an extra room. Defendant agreed to rent the second floor to her for $35 a week, furnished. No lease was executed.

On June 18, 1970, following a trial for the summary dispossession of plaintiff on defendant's complaint for nonpayment of rent, this court found that the landlord had breached the warranty of habitability. The court thereupon

reduced the rent to $75 a month, retroactive to February 23, 1970, covering the period during which plaintiff had failed to pay rent.

Plaintiff now seeks to recover rent paid prior to February 23, 1970, alleging that the landlord's default in the performance of his obligation continued through the entire period of the tenancy and therefore he was not entitled to the rent monies previously paid in full. The landlord, on the other hand, counterclaims for the rent remitted by the court.

The initial question which arises is whether the findings of the court in the dispossess suit are res adjudicata in the present case. Since the prior proceeding was summary in nature, and afforded to the litigants no right of appeal on the merits, they are not bound by the prior ruling and are entitled to a full hearing on the matters raised. Academy Spires, Inc. v. Jones , 108 N.J. Super. 395 (Law Div. 1970); Van Vlaanderen Machine Co. v. Fox , 95 N.J.L. 40 (Sup. Ct. 1920).

Having heard the matter de novo , including additional evidence not presented in the summary proceeding, the findings of the court remain substantially the same. While the landlord attempted during trial to minimize the number and extent of defects in plaintiff's apartment, and attributed the problems largely to the habits and conduct of plaintiff and her children, the court finds that the premises were in fact substantially uninhabitable. Even an incomplete and undetailed enumeration of the conditions encountered by the tenant demonstrates this finding of the court: few screens, some ripped; no storm windows; missing windows boarded up; gaps in window panes, sash and door frames; no radiators in two of the four rooms; holes in floors and walls; falling plaster; bathtub resting on wooden blocks; inoperable electric fixtures; sewage backup in cellar, and infestation by roaches and rodents. As an example of how one problem aggravated another, the regulator for the oven, which was a main source of heat, had to be replaced, but the gas company

refused to do so until the roaches had been exterminated. In addition, the furniture with which the apartment was furnished was discarded by the tenant without objection from the landlord.

The court further finds that the efforts of the landlord to remedy these conditions were feeble and tardy, and then only made when prodded by the court and municipal authorities.

In Marini v. Ireland , 56 N.J. 130 (1970), a dispossess suit for nonpayment of rent, it was held that there is an implied covenant by a landlord that the demised premises shall be and remain free of latent defects in its vital facilities so as to be suitable for habitation. The question raised is whether this rule is to be applied in a suit on contract for the rent, as contrasted with a suit to evict the tenant summarily. While a distinction must be recognized between the two forms of relief, Marini and its predecessor, Reste Realty Corp. v. Cooper , 53 N.J. 444 (1969), clearly engraft onto the rental agreement a covenant by the landlord, a default in the performance of which will bar his claim for payment of the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.