On appeal from the Superior Court of New Jersey, Law Division, Hudson County, L-3536-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 1, 2007
Before Judges S.L. Reisner and Baxter.
Defendant Mezzina Family, L.L.C. appeals from a March 30, 2006 trial court judgment awarding plaintiff Peter Rogers $140,294, plus counsel fees and costs, following the trial court's determination that defendant violated the Consumer Fraud Act (CFA or Act), N.J.S.A. 56:8-2, by charging rent in excess of that permitted under the local rent control ordinance. We affirm.
Defendant, a limited liability company operated by the Mezzina family, owns an eight-unit apartment building in Hoboken. On June 1, 1997, defendant rented an apartment to plaintiff at a rent of $700 per month. The first page of the lease referred to the landlord's right "to pass along to the tenant any increase in property taxes, water and sewerage charges [in] accordance with the Hoboken Rent Stabilization Board."
At some point after November 1, 2002, when the landlord increased his rent, Rogers sought a legal rent calculation from the Hoboken Rent Leveling and Stabilization Board. The Board's calculation, issued on February 10, 2005, indicated that defendant was significantly overcharging plaintiff. However, plaintiff filed a complaint in lieu of prerogative writs challenging the Board's calculation of a base rent of $437, contending that the base rent should be lower. The trial judge ultimately remanded that issue to the Board to recalculate the rent. On remand the Board determined that the correct base rent was $185, and defendant has not challenged that determination on this appeal. In fact, at oral argument, defendant's counsel conceded that the apartment was rent-controlled and that defendant overcharged plaintiff by some $46,656, in violation of the local rent control ordinance.
In addition to challenging the rent control board's decision, plaintiff's complaint alleged that defendant violated the CFA by charging excess rent contrary to the rent control ordinance. Defendant's answer denied that the Act applied to its property or to its relationship with plaintiff. On December 2, 2005, plaintiff filed a motion for summary judgment. In support of his motion, plaintiff filed a certification attaching the rent control board's calculations.
Defendant did not submit any certifications in response to the motion. Rather, defense counsel argued as a matter of law that defendant might be guilty of a "technical violation" of the rent control ordinance, but defendant had not committed an "affirmative act" so as to trigger strict liability under the Act. Counsel further argued that defendant had no intent to violate the law. The defense also contended plaintiff should be precluded from seeking relief for the years 1997 to 1999, because that time period was earlier than six years prior to the filing of the complaint. See N.J.S.A. 2A:14-1.
Relying on Wozniak v. Penella, 373 N.J. Super. 445 (App. Div. 2004), certif. denied, 183 N.J. 212 (2005), the trial judge concluded that defendant had committed an affirmative act by charging plaintiff excess rent in violation of the rent control ordinance, and therefore, plaintiff need not show that defendant intended to violate the CFA. She concluded that defendant violated the CFA and awarded plaintiff treble damages and counsel fees under the Act.
On this appeal, defendant raises the following points for our consideration:
POINT I: THE MOTION JUDGE ERRED AS A MATTER OF LAW IN GRANTING RESPONDENT'S MOTION ...