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Labinowski v. Failla

May 14, 2010

LORRAINE LABINOWSKI, PLAINTIFF-APPELLANT,
v.
CHARLENE FAILLA AND 20 HALSEY AVENUE CORPORATION, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. DC-8663-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 13, 2010

Before Judges Parrillo and Ashrafi.

Plaintiff Lorraine Labinowski appeals from a judgment of the Special Civil Part awarding her damages of double her security deposit less an amount applied to unpaid rent, and denying her requests for treble damages under the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 to -20, and for attorneys' fees. We affirm.

The facts are not materially in dispute. Defendant Charlene Failla is the sole owner of defendant 20 Halsey Corp., Inc., which in turn owns an apartment building located in Haledon. Plaintiff rented an apartment in this building pursuant to an initial one-year written lease executed by plaintiff on June 1, 2006, commencing July 1, 2006, with monthly rent of $1000 and a security deposit of $900. A lease renewal letter was thereafter sent to plaintiff, increasing monthly rent to $1025, but was never signed nor returned by plaintiff, who nevertheless remained a tenant and paid the increased rent.

On April 7, 2008, plaintiff sent defendant a letter informing that she would not be renewing her "yearly lease" on June 1, 2008, and would be vacating the premises on May 29, 2008. Plaintiff also advised defendant in that letter that her daughter, Linda Avino, "will be available as my representative on this matter," and requested that the $900 security deposit be returned. Less than a month later, on May 2, 2008, Avino sent a letter to defendant as "a follow-up to my mother's letter[,]" correcting a mistake in the letter and acknowledging that the current lease expires on June 30, 2008, rather than May 31, 2008, as her mother had apparently believed. Consequently, Avino requested that the $900 security deposit be applied to plaintiff's rent for the month of June. Defendant complied with Avino's request.

Plaintiff vacated the premises on May 29, 2008, and had no further contact with defendant until weeks later when she called defendant inquiring about her security deposit. Plaintiff was informed in that conversation that she was not entitled to the security deposit and that it would not be returned. On November 11, 2008, plaintiff's counsel wrote defendant requesting a return of the $900 security deposit with interest within thirty days. In his November 14, 2008 response, defendant's counsel reiterated that as per Avino's request, plaintiff's security deposit had been applied to June's rent and that defendants were not liable for return of the $900. Meanwhile, defendant had re- let the apartment beginning mid-June.

Plaintiff sued defendants in the Special Civil Part, seeking double damages plus interest pursuant to the Security Deposit Act, N.J.S.A. 46:8-21.1; treble damages pursuant to N.J.S.A. 56:8-19; and attorney's fees. Following defendants' answer, the matter was tried before Judge Mahlon Fast on July 21, 2009. At the conclusion of evidence, the court, in a letter opinion of July 30, 2009, entered judgment against the corporate defendant in the amount of $802.13, denied plaintiff's request for attorney's fees, dismissed the consumer fraud count, and dismissed the complaint against the individual defendant. Judge Fast reasoned:

Although there is no signed written lease renewal, plaintiff's course of conduct supports the finding that she implicitly assented to a 1 year lease term. A year to year lease need not be in writing so long as there is a meeting of the minds with regards to the material terms. The credible evidence at trial supports the finding that plaintiff and defendant understood their agreement to be for 1 year with a rental amount of $1,025.00 per month. The plaintiff's confusion regarding the expiration date of the lease does not refute the finding that plaintiff and defendant conducted their affairs pursuant to a year-long lease.

As a result of the 1 year lease, which commenced July 1, 2007 and expired June 30, 2008, plaintiff was responsible for June rent even though she vacated the premises on May 29, 2008. Following the directive of plaintiff's daughter/representative, defendant was within its rights to apply plaintiff's $900.00 security deposit toward the rental amount due for June 2008.

....

In fact plaintiff had surrendered her lease, but would have been liable for June rent until defendant was able to re-let the apartment. The landlord, defendant, is required to make good faith efforts to relet the surrendered apartment in order to mitigate the amount due by plaintiff as a result of prematurely vacating the apartment.

The credible evidence deduced at trial demonstrated that defendant made a good faith effort to re-let plaintiff's apartment and in fact did re-let the apartment beginning mid June 2008. The court in Mitchell v. First Real Estate Equities, Inc., 287 N.J. Super. 546 (App. Div. 1996) stated that "the date of the re-letting determines the date of the 'termination' of the breached lease under N.J.S.A. 46:8-21.1." Defendant re-let the apartment... in mid June 2008, thus ...


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