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Jacobsen v. Iavarone

July 27, 2009

ROBERT JACOBSEN AND CAROL JACOBSEN, PLAINTIFFS-APPELLANTS,
v.
DOMINIC IAVARONE, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Ocean County, Docket No. L-31910-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 6, 2009

Before Judges Rodríguez and Payne.

Plaintiffs Robert Jacobsen and Carol Jacobsen appeal from the August 27, 2007 judgment, following a bench trial, in favor of defendant Dominic Iavarone. We affirm.

These are the salient facts. The Jacobsens purchased real and personal property from Iavarone for $616,000. After the closing, the Jacobsens became aware of various defects. The problems were not remedied to the Jacobsens satisfaction.

Therefore, the Jacobsens sued Iavarone for breach of contract.*fn1 Iavarone counterclaimed seeking release of $5,500 being held in escrow in connection with a dock.

There was a bench trial before Judge Joseph Foster. Two witnesses testified: Robert Jacobsen and Iavarone. Jacobsen testified that: the roof leaked, causing a six to nine square foot area in the dining room ceiling to collapse; the living room ceiling became stained and dripped onto the furniture; the basement flooded; an air conditioning unit malfunctioned; the heating unit needed replacement; the refrigerator was switched; the ski lifts attached to the dock did not work; the spa was nonfunctional; and a well turned out to be nonexistent.

According to Iavarone, the roof was eight years old and remained under warranty. At the time of the closing, it did not leak.

The judge made the following findings of fact:

First of all the Court found the testimony of Mr. Iavarone to be entirety [sic] credible and reliable. He was not at all defensive. He appeared to this Court to be entirely matter of fact, forthright and truthful in recounting the condition of this home when the premises were sold. The Court finds his testimony as to the replacement of this roof as recently as 1997 to be entirely credible and reliable. The Court accepts that testimony as true and accepts his testimony that if there were any problems at all with the roof, it might have been an isolated leak, nothing more than that . . . and the Court accepts his testimony that he was [not] aware of any condition of the roof which would require a full replacement at the time of closing.

He also testified that the air-conditioning system was in working order when the premises were sold or when the title was transferred as was the heating system and the Court finds his testimony to be entirely credible and reliable. He didn't appear to this Court to be in any way making excuses, hedging or that he was in any way defensive. He responded to questions put to him in a timely matter of fact and forthright manner. It may be that the plaintiffs have a quarrel with the efficiency of this system, but the Court is satisfied based on Mr. Iavarone's testimony that the air-conditioning and heating systems were in good working order at the time of closing.

The Court furthermore accepts Mr. Iavarone's testimony that the refrigerators were not switched. I found his testimony as to the history of the refrigerators to be credible and reliable and reject any claim that the refrigerators were switched.

I find that his testimony with respect to these davits, the davits which were referred to as Ski-Doos to be entirely credible and reliable and the Court rejects any claim that they were not operating, in operating condition at the time of closing and finds his testimony as to the need just for a recharging or replacement of batteries to be plausible and reliable. The same is true with respect to the spa and the Court found his testimony, his explanation as to the history of this well and his explanation that the local municipal utilities authority would not have this well recorded as an operating well to be plausible, credible and reliable. The fact that ...


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