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Kuther v. Zaklama

April 20, 2010

DAVID KUTHER AND TRACI KUTHER, PLAINTIFFS-RESPONDENTS,
v.
JOHN ZAKLAMA AND COFFEE PLACE, LLC, DEFENDANTS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-334-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 24, 2010

Before Judges Stern, Sabatino and J. N. Harris.

Defendants, John Zaklama and Coffee Place, LLC, appeal a final judgment in the sum of $165,721.79, plus interest and costs, in the Law Division following a bench trial to adjudicate a complaint brought by David and Traci Kuther ("plaintiffs") for negligence. We affirm.

I.

In their original complaint, plaintiffs alleged that Zaklama*fn1 negligently maintained his brownstone house on Garden Street in Hoboken. Plaintiffs asserted that, as a result of Zaklama's negligence, their own brownstone house--which was next door--was damaged by water seeping through a shared wall.

Each house on the block apparently was built with a single cast-iron drainage pipe for all effluvia generated from the house. Additionally, the roof on both houses contained a "Yankee drain," which was described in the record as "simply a gutter with a trough" that leads to the same pipe. The pipes that serviced each house ran along each building's south side. Thus, the pipe that serviced plaintiffs' house ran along the side opposite Zaklama's building, while the pipe that serviced Zaklama's house ran along the wall adjoining plaintiffs' house.

Plaintiffs purchased their four-bedroom, nineteenth-century brownstone in 2002 for $915,000. Prior to their purchase, the home had been almost completely renovated to its original condition by the previous owners. Shortly after purchasing the home, plaintiffs hired a contractor who specialized in restoring historic homes to complete the renovations.

In October 2005, plaintiffs began to observe water damage spreading on the north wall of their property, the wall adjoining defendants' property. Plaintiffs hired a number of "plumbers and experts to come in and try to decipher what was wrong." The plumbing contractors whom plaintiffs hired told them that the damage was coming from defendants' drainage pipes. Plaintiffs paid these contractors $1,011.15 to conduct tests on both their plumbing line and defendants' plumbing line. Plaintiffs also obtained two expert opinions about the condition of their roof, both of whom determined that the roof was not the source of the water damage.

After they "saw the potential mold" on their property, plaintiffs called in the Hoboken Board of Health. The Board inspected plaintiffs' house and the next-door premises at the Zaklama property as well. The Board subsequently cited Zaklama for the unsanitary conditions there, a determination that he challenged in the municipal court. Plaintiffs approached Zaklama to request that he remediate the water seepage, but he refused to do so, claiming that his appeal of the Board of Health's citations in municipal court would determine who was truly at fault for the water damage.

In March 2006, Dr. Zaklama, who is described in the record as the property manager for Zaklama's premises, represented to plaintiffs that he had made the necessary repairs to stop any water seepage through the common wall into their premises at the Kuther property. As a result, plaintiffs hired a contractor to scrape the damaged plaster from the wall, replaster and repaint. Plaintiffs were charged a net sum of $1,125 for that particular work.*fn2

Almost immediately, the water damage substantially worsened on that same wall. The paint began to bubble, then it flaked and peeled off the wall. According to plaintiffs, some paint chips fell onto the staircase, where plaintiffs' infant son and their two dogs allegedly attempted to ingest them.

In September 2006, after plaintiffs became unable to tolerate the smell of mold and the perceived health hazard to their pets and children, they left the house. They temporarily moved all four family members and their two dogs into a 500 square foot, one-bedroom apartment in Queens, New York, which they then shared with Mr. Kuther's parents. Plaintiffs stayed in the Queens apartment through May 2007, when they temporarily moved into a two-bedroom apartment in Manhattan.

In September 2006, plaintiffs were served with a criminal summons by Zaklama to appear in municipal court on charges of harassment in violation of N.J.S.A. 2C:33-4b. Mrs. Kuther alleges that this charge stemmed from an incident on September 19, 2006, when she was outside of the house and speaking to a Hoboken police officer and city councilman about the unlicensed contractors that Zaklama allegedly had hired to repair the roof at the Zaklama property.

The municipal harassment case was adjourned multiple times-- because Zaklama failed to appear as the complaining witness--until October 25, 2006, when it was finally dismissed by the municipal prosecutor. Plaintiffs' counsel invoiced Mrs. Kuther $6,278.39 for appearing in connection with that matter.*fn3

Plaintiffs commenced the instant action by filing a verified complaint against Zaklama in the Law Division on January 19, 2007. At the same time, they brought an order to show cause seeking immediate injunctive relief to remediate the water seepage. After hearing oral argument on the application, the trial judge issued orders on March 13, 2007 and April 30, 2007, requiring Zaklama to abate the nuisance and make repairs to his building.

Two months later, after Zaklama had failed to comply adequately with either of the court's orders, the trial judge issued a bench warrant for his arrest. The judge stayed execution of this warrant multiple times through June, July, August, and September 2007 upon receiving periodic updates by Zaklama on his progress toward full compliance with the court's March and April 2007 orders. At some point in October 2007, the repairs were made to Zaklama's building and were inspected by Hoboken officials. Apparently, the arrest warrant for Zaklama was then vacated.*fn4

In his answer to the complaint, Zaklama denied liability. After the court-ordered repairs were completed, plaintiffs moved for reimbursement of the $36,560 in counsel fees that they had been charged in securing Zaklama's remediation and compliance. Zaklama opposed the fee application. After hearing oral argument and reviewing in detail the itemized affidavit of services presented by plaintiffs' counsel, the trial court awarded plaintiffs counsel fees in the reduced sum of $11,640. The court subtracted from that amount the $1,000 in counsel fees that it had previously awarded and which had already been paid to plaintiffs, yielding a net balance due of $10,640.

After the leaks from Zaklama's house were remediated in October 2007, plaintiffs awaited an estimate for repairs from a contractor of Zaklama's choosing. In February 2008, after no such estimate from Zaklama was forthcoming, plaintiffs solicited their own estimates for the work. Plaintiffs obtained two such estimates: one for $31,000 from Artistic Renovations, Inc. ("Artistic Renovations") and another for $32,500 from Birch Tree Builders, LLC. Plaintiffs accepted the bid from Artistic Renovations, because it was $1,500 lower, and also because they were familiar with the quality of that firm's work from when it performed renovations on their home in 2003.

Artistic Renovations completed the repair work--remediating the water damage and repairing plaintiffs' stairway--in May 2008 to plaintiffs' satisfaction. It charged plaintiffs the bid price of $31,000 for the job, which they subsequently paid.

Plaintiffs moved for summary judgment against Zaklama on all counts. Zaklama opposed the motion and cross-moved for summary judgment on the basis of a settlement that he alleged he had entered into with plaintiffs. After considering the parties' contentions, the trial judge granted plaintiffs' motion in part and denied Zaklama's cross-motion in full on May 23, 2008. Specifically, the judge stated in his bench ruling:

I've already determined, after several days of testimony, that [Zaklama] maintained the nuisance, which I ordered [him] to abate the water damage to [plaintiffs'] property, resulting from the tension drain, I think it was called, on the roof, and various plumbing problems, as to which I heard testimony from at least two of the tenants in the building.

There [were] days of testimony. I heard from numerous witnesses, including [Zaklama]. I saw videotape, et cetera. So there is no material issue of fact, with respect to the infiltration of water from the Zaklama property, onto the wall that was -- that they virtually shared in common.

They were separate walls, but the south wall was right next to the north wall. There's no question that the water seeped from the Zaklama property onto the wall of the Kuther property, and that's, in fact, what caused the ...


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