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Reilly v. Weiss

March 24, 2009


On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, Docket No. SC-1384-08.

The opinion of the court was delivered by: Messano, J.A.D.



Submitted December 17, 2008

Before Judges Parrillo, Lihotz and Messano.

Plaintiffs Kelly Reilly and Kayla Scheckel appeal from the May 15, 2008 order of the Special Civil Part entering judgment in their favor in the amount of $375.14. They contend that the judge 1) "misapplied" the Security Deposit Act, N.J.S.A. 46:8-19 to -26 (the SDA); and 2) erred in concluding their landlord, defendant Marc Weiss, had met "his burden of proof" regarding the costs of repairs required as a result of damage caused by plaintiffs to the leased premises. We have considered these arguments in light of the record and applicable legal standards. We affirm in part, reverse in part, and remand for the entry of a modified judgment in favor of plaintiffs.


Plaintiffs filed their complaint in the Special Civil Part Small Claims Division seeking $5000 in damages, alleging they paid defendant $3562.50 as a security deposit pursuant to a written lease for the second-floor apartment located at 280 Claremont Avenue, Montclair.*fn1 Plaintiffs claimed that they vacated the premises on January 3, 2008, that more than thirty days had elapsed, and that defendant had not returned their deposit. Although plaintiff's claim, if successful, would have exceeded $5000, they submitted the dispute to the limited jurisdiction of the Small Claims Division by waiving any possible excess recovery.*fn2

Represented by counsel, both plaintiffs testified at trial, identifying the lease for the apartment, which commenced on August 1, 2007, at a monthly rent of $1425, and terminated on July 31, 2008. Although the lease prohibited the keeping of pets, the parties initialed a handwritten modification permitting "[two] cats [to] be kept unless an issue arises." Plaintiffs testified they tendered $3562.50 as a security deposit, "a month and a half [of rent] plus a pet deposit, an extra month." Problems arose between plaintiffs and defendant, and plaintiffs moved out of the premises, by mutual consent, on January 31, 2008, never receiving any of their deposit monies from defendant.

Defendant appeared pro se and testified that on February 28, 2008, he corresponded with plaintiffs' attorney. The letter indicated that plaintiffs had not "provided a forwarding address upon departure to send their [r]ent [s]security [d]eposit reconciliation to." Attached to the letter were various bills and estimates from contractors and Public Service Electric & Gas Co. indicating utility expenses left unpaid by plaintiffs, and repair costs occasioned by plaintiffs' damage to the property.

In short, defendant claimed that the entirety of plaintiffs' security deposit, which had accrued interest and was now $3577.56, was insufficient to defer the combined costs for the expenses and repairs. Defendant claimed plaintiffs owed him $58.39.

Defendant testified using photographs 1) depicting stains on the floors caused by plaintiffs or their pets which required the apartment to be re-carpeted; and 2) showing damage caused by plaintiffs' smoking in the apartment--something prohibited by the lease--requiring it to be re-painted. He testified that plaintiffs also broke a storm window that needed to be replaced. Defendant acknowledged that the actual costs for the painting was $245.96 less than the amount contained in his February 28 letter. On rebuttal, plaintiffs again testified and claimed they had not caused any of the damages of which defendant complained.

The judge determined that plaintiffs had caused the broken storm window, "smoke damage," and damage to the carpets. Noting that the calculations contained in defendant's February 28 itemization letter needed to be redone "due to the overestimate of the amount that it would cost to paint," the judge concluded that in fact defendant had "wrongfully withheld" $187.57 of plaintiffs security deposit. Pursuant to the SDA, she doubled that amount and entered judgment in plaintiffs' favor for $375.14.

Plaintiffs' counsel objected. She argued that pursuant to Chatterjee v. Iero, 380 N.J. Super. 46 (Law Div. 2005), it was unlawful for defendant to have "subdivided" the security deposit required from plaintiffs, i.e., "calling one month['s] [amount] a pet deposit and one and a half times the monthly rent [a] security deposit." She argued that "[defendant was] holding two and a half times the monthly rent, when the [SDA] only allows for one and a half times the monthly rent." Plaintiffs claimed that while the SDA permits any security in excess of the statutory limit to be applied to a tenant's monthly rental ...

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