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Dong v. Sacks


April 28, 2009


On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Bergen County, No. SC-1818-08.

Per curiam.


Submitted March 10, 2009

Before Judges Wefing and LeWinn.

Defendant appeals from a judgment entered in plaintiff's favor for $2680 plus costs following a bench trial in the Small Claims Division of Special Civil Part. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Plaintiff lives on the sixteenth floor of a high-rise apartment building located in Fort Lee. Defendant lives above plaintiff, on the twentieth floor. Plaintiff returned from a business trip to find that her apartment had suffered water damage. She called the superintendent and was told that a leak had developed in defendant's apartment and that several other apartments in the building had been damaged as well. She testified that the doorman of the building also told her that the leak had started in defendant's apartment while she was away. She said she had called defendant, who came to inspect the apartment and promised to reimburse her for the cost of repair. She testified that it cost her $2680 to repair the damage. When defendant refused to make her whole, she filed her complaint.

Defendant denied that he had promised to pay to repair plaintiff's apartment. He said that when he left his apartment in the morning, everything was in order in his apartment and that the toilet was functioning properly. He testified that when he returned in the evening, he was told that there had been a leak in his apartment that had damaged other units in the building.

A friend of defendant's also testified. She said that she had accompanied defendant to inspect plaintiff's apartment, which she agreed had been damaged. She said that defendant had not promised to pay to repair the damage but had said that if he were responsible, he would pay.

The trial court decided the matter on the basis of credibility, rejecting large portions of defendant's testimony. The trial court specifically rejected defendant's contention that when he left his apartment that morning, there was no problem with the toilet. It described as "equivocal" defendant's statement that he could not recall if he had experienced problems with the toilet. It viewed defendant's assertion that he could not recall offering to pay plaintiff for her damage through the same critical lens. Those credibility assessments are binding upon us on appeal. State v. Locurto, 157 N.J. 463, 470-71 (1999).

The essence of defendant's argument is his complaint that the trial court erred in admitting untrustworthy hearsay evidence. Hearsay evidence is admissible, however, in the Small Claims Section of the Special Civil Part. Penbara v. Straczynsky, 347 N.J. Super. 155, 162 (App. Div. 2002); N.J.R.E. 101(a)(2). The trial court properly treated plaintiff's hearsay testimony about the source of the leak as trustworthy; indeed, it was corroborated by defendant's own testimony, when he said that he was advised by the building staff that there had been a leak in his apartment which damaged several other units in the building. He did not go on to dispute the accuracy of what he had been told.

Defendant argues that the trial court applied a strict liability standard in finding him liable and cites Siddons v. Cook, 382 N.J. Super. 1 (App. Div. 2005), to support his position that strict liability is inapplicable. We disagree with defendant's characterization of the trial court's conclusions. In Siddons, we held that one condominium owner was not strictly liable to an adjoining condominium owner whose unit suffered extensive water damage from a broken dishwasher hose in the first unit. Id. at 13. We went on, however, to note that the first unit owner did owe a duty of care to the adjoining owner. Ibid. If defendant did leave his apartment in the morning with his toilet not functioning properly and did not make arrangements to have it attended to, an inference of negligence would be permissible.

The judgment under review is affirmed.


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