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Conklin v. Shanahan

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 8, 2007

EDITH CONKLIN, PLAINTIFF-APPELLANT,
v.
KEVIN P. SHANAHAN, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Hudson County, SC 000968-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 18, 2007

Before Judges Fuentes and Baxter.

Plaintiff Edith Conklin appeals from the May 6, 2005 order of the Special Civil Part denying her request for the return of her security deposit and her subsequent motion for reconsideration. We find no error, and affirm.

Plaintiff was a tenant on a yearly lease in an apartment located at 2271 Kennedy Boulevard, in Jersey City, owned by defendant Kevin P. Shanahan. The rent was $875 per month, and a security deposit of $1,275 was been paid on plaintiff's behalf by the Jersey City Housing Authority Section 8 Rental Assistance Program.*fn1

Plaintiff had resided in the apartment from September 1, 2001 until March 28, 2005. Although the record is extremely limited, we discern that plaintiff's entitlement to the Section 8 subsidy was terminated at some time considerably before she moved out. Whether that termination resulted from the conditions in the unit itself or from some other cause, we are unable to determine. After her rent subsidy was terminated, plaintiff continued to live in the apartment for eighteen months without paying rent. She never provided defendant with a written request for the return of the security deposit, nor did she ever provide defendant with an address to which he should send the security deposit once she moved out.

The judge concluded that those omissions by plaintiff, combined with her failure to pay any rent for eighteen months, voided her entitlement, under N.J.S.A. 46:8-21.1, to a return of her security deposit, whereupon he dismissed her complaint. Plaintiff filed a motion for reconsideration, which, on July 8, 2005, was denied by the trial judge, who ruled that "plaintiff seeks to reconsider a small claims trial, not a motion. The proper procedure is for plaintiff to appeal the trial court's decision." This appeal followed.

On appeal, plaintiff asserts that the cancellation of the rent subsidy payments previously paid to defendant by HUD was a result of defendant's own failure and neglect, and therefore, the judge's decision, which in effect penalized her for such non-payment, by HUD, was error. In support of that argument, plaintiff attaches to her brief numerous documents to bolster her contentions about such alleged "failure and neglect" by defendant. These documents were not part of the record below, and cannot be considered on appeal. Middle Dep't Inspection Agency v. Home Ins. Co., 154 N.J. Super. 49, 56 (App. Div. 1977), certif. denied, 76 N.J. 234 (1978). We, therefore, do not consider plaintiff's arguments about any alleged fault by defendant that may have contributed to the termination of the rent subsidy payments.

We now consider the judge's decision dismissing plaintiff's complaint in light of the record and applicable law. A landlord is required, within thirty days of the termination of a lease, to return to the tenant the security deposit, plus the accrued interest, "less any charges expended in accordance with the terms of . . . a lease . . . ." N.J.S.A. 46:8-21.1. The statute further provides that "any such deductions shall be itemized and the tenant . . . notified thereof . . . ." Ibid. Accordingly, the statute authorizes a landlord to deduct from the security deposit any sums due and owing as a result of unpaid rent. Ibid; See also Lorril Co. v. LaCorte, 352 N.J. Super. 433, 442 (App. Div. 2002). The statute further provides that if the court finds a landlord violated the statute by not sending the required itemization within thirty days or by not returning to the tenant any remaining portion of the security deposit, "the court . . . shall award recovery of double the amount of said moneys." N.J.S.A. 46:8-21.1.

The judge did not expressly consider defendant's failure to have provided plaintiff with the itemized statement required by the statute. The judge did, however, find that the unpaid rent exceeded the amount of the security deposit and that the plaintiff never provided defendant with an address to which he should send the itemized statement or any remaining portion of the security deposit. He also found plaintiff never provided defendant with notice that she was leaving. Under these circumstances, we find no error in the court's conclusion that plaintiff was not entitled to a return of the security deposit.

Affirmed.


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