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Berzito v. Gambino

Decided: June 2, 1972.

LILLIAS BERZITO, PLAINTIFF-RESPONDENT,
v.
VINCENT GAMBINO, DEFENDANT-APPELLANT



Collester, Mintz and Lynch.

Per Curiam

Defendant appeals from a judgment awarding plaintiff a rental rebate in the amount of $1,180. The judgment was subsequently amended to $973.75 by allowing defendant credit in the sum of $206.25 for rent due from plaintiff for the period August 27, 1970 to November 14, 1970.

Defendant owns a two-story brick dwelling consisting of two apartments in Elizabeth. In June 1968 plaintiff rented the first floor apartment. About September 1, 1968 the larger second floor furnished apartment became vacant. Plaintiff inspected it and orally agreed to rent same as furnished at a weekly rental of $35 with heat, hot water and gas supplied. She testified that defendant agreed to make the apartment "livable" and to make certain specific repairs, it having been left in a deplorable condition by the prior tenants.

The trial judge's opinion recites that plaintiff defaulted in the payment of the weekly rent as of February 23, 1970. On June 18, 1970, on a trial for summary dispossession of plaintiff

for non-payment of rent, the trial judge found that plaintiff-landlord (defendant in the present proceeding) had breached the warranty of habitability, and reduced the rental to $75 per month retroactive to February 23, 1970. Plaintiff and her three children finally vacated the premises on November 14, 1970.

Defendant testified that the apartment had been condemned and a "sticker" posted to this effect. Subsequently defendant rehabilitated the apartment. The premises were then reinspected by the building inspector in February 1968. The inspector removed the condemned notice, and apparently a certificate of occupancy was issued. The apartment was then rented to two sisters for about three months. They left it in a dirty condition but the furniture was still good. Defendant further testified that plaintiff rented the premises "as is" and that plaintiff extensively damaged the furniture and the premises.

In this proceeding the plaintiff-tenant seeks to recover a portion of the rent paid from October 1968 to February 23, 1970 on the theory that she never received what she had impliedly bargained for. Her complaint alleges that she had impliedly bargained for an apartment at a rental worth $35 weekly, but the fair rental value of what she received was only about $75 monthly. Defendant counterclaims for the amount of the rent remitted to plaintiff in the summary dispossession proceeding.

The trial court found that defendant promised plaintiff that he would make the premises "livable" and "agreed to make specific repairs." The trial court stated that the premises were in fact substantially uninhabitable. In support of this conclusion the trial court noted the following deficiencies:

However, the record indicates that all the furniture except for one chest of drawers was placed in the basement by plaintiff on an unspecified date. Defendant testified that he had purchased new furniture in February 1968, but "* * * it wasn't new anymore after she got through with it."

Accepting the finding of the trial court of an express agreement by defendant to render the premises "livable" and to make specific repairs, we note that plaintiff's major complaint was the roach infestation. She purchased cans of spray which she used unsuccessfully. Defendant testified he furnished extermination service from time to time. The sewage backups were apparently caused by foreign objects deposited in the house sewer line which was cleared by plumbers engaged by defendant, although according to plaintiff defendant was dilatory in removing the sewer remains from the basement. More importantly, we note that although plaintiff stated that she complained of the conditions to defendant, she lived in the apartment for one year before making any complaint to the municipal authorities. At that time she admits that defendant told her that she "had to get out" because she was costing him money.

The trial judge predicated his finding in favor of plaintiff on the ground that defendant violated an express covenant to make the premises livable and to make specific repairs rather than upon a violation of an implied warranty of habitability. Since there is sufficient credible evidence in the record to support this determination, we accept same. State v. Johnson , 42 N.J. 146 (1964); Greenfield v. Dusseault , 60 N.J. Super. 436 (App. Div. 1960), aff'd o.b. 33 N.J. 78 (1960).

A tenant's right to claim a constructive eviction will be lost if he does not vacate the ...


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