On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Bergen County, Docket No. DC-027073-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 10, 2008
Before Judges Parrillo and Messano.
Defendant Benjamin Sparano appeals from the judgment in favor of plaintiff Rosa Lucas that followed a non-jury trial in the Special Civil Part. We have considered the arguments raised by the parties in their briefs in light of the record and applicable legal standards. We affirm.
On October 29, 2007, plaintiff filed her complaint alleging Sparano had wrongfully withheld her security deposit in violation of N.J.S.A. 46:8-21.1. She sought double the amount of the deposit, $6000, plus attorney's fees and costs. Sparano filed an answer, counterclaim, and third-party complaint on November 19, 2007. He denied receiving any monies from plaintiff.
Instead, he alleged that the four third-party defendants, Jeff Palmer, Timothy Lucas, Luis Martinez and Joseph Spiegel (collectively, defendants), had each deposited $750 as security for their rental of Sparano's apartment at 5 Burnside Place, Wayne. Sparano further claimed that plaintiff and defendants violated various provisions of the lease and damaged the property, necessitating the cost and expense of repairs. He also alleged that plaintiff and defendants failed to give proper notice of their intention not to renew the lease at the conclusion of its one-year term. Sparano sought retention of the $3000 security deposit, an additional $1950 in damages, and $4000 "for [the] loss of two months['] rent" as of the date of the filing.
The Special Civil Part Clerk's Office forwarded notice to Sparano that his pleading had been mailed, and that unless otherwise notified, default would enter on his claims on January 7, 2008. On December 4, counsel for plaintiff notified the Clerk's office that he would not be representing defendants because he anticipated calling them as witnesses in his case. He asked the clerk to enter "a general denial" to Sparano's counterclaim on behalf of plaintiff.*fn1 A copy was mailed to Sparano.
On January 8, 2008, the case was listed for trial. Plaintiff appeared with counsel; Sparano appeared pro se. Three of the four defendants were present, without counsel, as witnesses for plaintiff. The calendar judge forwarded the case to Judge Menelaos Toskos for trial. We have not been provided with the transcript of what, if anything, transpired before the calendar judge, however, there is nothing in the record to reflect that Sparano requested an adjournment at that time.
Judge Toskos commenced the trial. Sparano immediately interrupted, claiming Martinez, "one of the most important witnesses," was not present, and that he wanted "to have him here." Judge Toskos, indicating that Sparano could have subpoenaed witnesses for trial, but had not, pressed ahead with the trial. Sparano again interrupted, noting plaintiff's counsel had not "filed any answer . . . or anything" in response to the counterclaim. He told the judge he "should have an automatic default." Plaintiff's counsel showed Sparano the letter he filed with the clerk, and the trial proceeded.
Plaintiff testified she entered into a lease for the apartment with Sparano in early September of 2006. Her son was attending William Paterson University in Wayne and was going to share the unit with other students. The lease ran from September 2, 2006 through August 31, 2007 at a monthly rent of $2000 and required a security deposit in the amount of $3000. Plaintiff further testified that she paid the $3000 security deposit with a personal check made out to cash, a copy of which she presented at trial. She noted that the check was given to the realtor. During one of his frequent interruptions of the testimony, Sparano denied ever seeing the check prior to trial, claiming instead that the security was paid in equal cash payments of $750 by each of the defendants. Plaintiff testified that during the lease term, she sent defendant a check for her son's portion of the monthly rent.
Three of the defendants testified on plaintiff's behalf. Her son, Tim Lucas, testified that he gave the realtor a check given to him by his mother as a security deposit on the unit in early September 2006. Lucas testified that he lived in the unit with the three other defendants, and that when they vacated in August 2007, Sparano inspected the unit and said it was fine. Lucas claimed that the only time Sparano contacted him or his fellow tenants was to collect the rent and that he would sometimes appear at the unit unannounced. Lucas testified that no other people lived in the unit, and that he and the others paid all outstanding utility bills prior to vacating the unit. They left the apartment in good condition.
Jeffrey Palmer testified that he moved in the apartment on September 3, 2006 and that he never tendered any money for a security deposit. Palmer testified that shortly after moving in, he discovered a leak in the bathroom plumbing which had caused damage to the shower tiles and caulking. Palmer further claimed that Sparano had to replace the toilet during the second week of the tenancy because it would not flush. Palmer corroborated Lucas's testimony that all utility bills were paid, the apartment was left in good condition, and that Sparano had not lodged any complaints with them.
Joseph Spiegel testified that his father signed the lease on his behalf. He confirmed that he too did not contribute to the security deposit and corroborated ...