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Romero v. Trusky

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 20, 2008

NOEL V. ROMERO, PLAINTIFF-RESPONDENT,
v.
DIANA TRUSKY, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey Law Division, Monmouth County, Docket No. SC-1066-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 6, 2008

Before Judges Coburn and Grall.

Defendant Diane Trusky appeals from a final judgment in the amount of $2150 entered in favor of plaintiff Noel V. Romero after a trial in the Small Claims Division of the Special Civil Part. On appeal, Trusky argues that the judgment is not supported by the evidence.

Defendant retained plaintiff, a professional painter, to do work on three buildings. This dispute arises under the contract for the work on the last of the three jobs.

Under the contract, defendant agreed to pay plaintiff $10,600 to paint the rear porch, including the floor, front door, walls, ceiling, pillars, railings and an area of the front porch. Plaintiff received a deposit of $2600 and additional payments in the amount of $5050. Because the gutters on the roof of the porch leaked and were to be replaced, plaintiff did not finish the work on the pillars. The value of the work not done was $800. Thus, plaintiff sought $2150.

Defendant claimed that the $2150 balance was withheld because the paint applied to the railings was "bubbling" and work had to be done to correct the problem. The cedar railings were installed and primed by a different contractor, Mr. Butler, before plaintiff painted them. After the railing work was completed, defendant's business manager noticed the "bubbling" and arranged to meet with plaintiff, the railing contractor and a representative of the manufacturer of the paint. Plaintiff did not attend. According to Mr. Butler, the problem was caused by moisture that started at the primer level. Butler's "theory" was that the primed wood was wet with dew when the paint was applied. Butler testified that he stripped off the paint but later admitted that one of plaintiff's employees did the stripping work. Butler also admitted that he had recommended plaintiff for another job on the basis of the work he had done on defendant's porch.

The trial court concluded that defendant failed to establish entitlement to an offset based on plaintiff's poor performance of the work and that plaintiff was entitled to receive the $2150 balance due for the work he had performed under the contract.

The factual findings of a judge made in a non-jury case are not disturbed unless "they are so wholly insupportable as to result in a denial of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974) (internal quotations omitted). Because the findings in this case are adequately supported by the evidence set forth above, we affirm.

R. 2:11-3(e)(1)(A).

20080520

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