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Sierchio v. 772 Broad Street Inc.

Decided: November 6, 1987.

DIANE E. SIERCHIO, PLAINTIFF,
v.
772 BROAD STREET, INC., DEFENDANT



Fast, J.s.c.

Fast

This is a formal opinion of a decision given from the bench. This opinion coordinates the concepts of Berzito v. Gambino, 63 N.J. 460 (1973) with Glynn v. Park Tower Apartments, Inc., 213 N.J. Super. 357 (App.Div.1986). The issue is whether the court has jurisdiction to determine claims of overpayment of rent based on alleged defective conditions in an apartment where the tenancy is subject to certain rent-control ordinances. The combination of circumstances involved here requires a holding that this court is without jurisdiction in this action. I have found no other case reported in New Jersey on point. [In reading this opinion, it must be remembered that it does not concern a tenant's claim for a set-off where the rent has not been paid and the landlord is suing for summary possession -- the usual "Marini" type case.]

This civil action is one of four filed by four tenants at a multi-family complex owned by defendant. These four tenants all claimed a breach of the covenant of habitability by virtue of a lack of air conditioning for virtually the entire summer of 1987, a period for which their rent had already been paid. The lack of air conditioning has been held to have been a matter of habitability, in the appropriate case. Park Hill Terrace Assoc. v. Glennon, 146 N.J. Super. 271, 277 (App.Div.1977). Since the rent had been paid for those months, Berzito, supra, would have required an affirmative action, initiated by the tenant (rather than as an offset in a suit for non-payment by the landlord. C.F. Seabrook Co. v. Beck, 174 N.J. Super. 577 (App.Div.1980)). The measure of damages in such an

action has been held to be the difference between the rent paid and the reasonable value of the tenancy without the air conditioning; i.e., the tenant need have paid the reasonable, or fair rental, value only. Id. at 595-596.

In fact, these tenants did commence these actions as suggested by Berzito. However, their apartment is in Nutley, and Nutley has an ordinance creating a rent-leveling board. Therefore, the tenants also filed applications with that board, for the same redress, i.e., for reimbursement for the difference between the amount paid and the value received. When the matter came before that board, it yielded the matters to the jurisdiction that it assumed that this court had. It was polite, but in error.

The Nutley ordinances provide as follows, as material to this decision:

Sec. 180-8. Powers of Board.

A. The rent Leveling Board shall have and exercise the powers necessary and appropriate to carry out and execute the purpose of this chapter, including but not limited to the following:

(5) To assist in the settlement of problems or general complaints that arise out of the landlord and tenant relationship.

B. The Board shall give both landlord and tenants reasonable opportunity to be heard before making any determination.

Sec. 180-9. Continuance of standards of service and maintenance.

During the term of this chapter, the landlord shall continue the same standards of service and maintenance and shall provide the same . . . equipment as he provided . ...


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