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Chun v. Suh

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 16, 2010

SUN DO CHUN, PLAINTIFF-APPELLANT,
v.
SEUNG OH SUH, DEFENDANT-RESPONDENT.

On appeal from Superior Court, Law Division, Special Civil Part, Bergen County, Docket No. DC-1039-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 3, 2010

Before Judges Kestin and Newman.

Plaintiff Sun Do Chun appeals from an order denying his motion for reconsideration of the trial court's failure to double the amount of a security deposit pursuant to the authority of N.J.S.A. 46:8-21.1. We reverse.

Following a bench trial in the Special Civil Part, the trial court entered a judgment in favor of plaintiff, the tenant, for $950. That amount represented the balance of a $3,000 security deposit after a month's unpaid rent was deducted. Plaintiff moved for reconsideration, arguing that he was entitled to a double recovery under the statute for the failure to return the security deposit, plus interest, costs, and reasonable attorney's fees. In denying the motion for reconsideration, the trial judge relied on Lanzi v. North, 295 N.J. Super. 80 (App. Div. 1996), which, according to the trial court, did not require a doubling of the security deposit. In so concluding, the trial judge found that the landlord, defendant Seung Oh Suh's conduct was not contumacious and, therefore, no double recovery was warranted.

On appeal, plaintiff raises the following issues for our consideration:

POINT I

PLAINTIFF SHOULD HAVE BEEN AWARDED A DOUBLE RECOVERY OF THE SECURITY DEPOSIT WITH INTEREST, COSTS OF SUIT AND REASONABLE ATTORNEY'S FEE.

POINT II

DOUBLE AMOUNT OF THE TOTAL DEPOSIT SHOULD HAVE BEEN AWARDED TO PLAINTIFF DUE TO DEFENDANT'S COMPLETE DISREGARD OF THE ACT.

We are satisfied that the trial court was mistaken in not awarding a double recovery of the balance of the security deposit after deducting the unpaid rent from mid-September to mid-October under the month-to-month arrangement that the parties had made. This lease arrangement followed the expiration of a written lease agreement executed 2007 and was extended for another year but then reverted to a month-to-month tenancy in 2009. In Kang In Yi v. Re/Max Fortune Props., Inc., 338 N.J. Super. 534, 538 (App. Div.), certif. denied, 169 N.J. 610 (2001), we made it clear that the doubling of the unreturned security deposit was not a discretionary matter but was required. The doubling was the tenant's net entitlement after permissible deductions from the security deposit. We, however, disagreed with plaintiff's contention that the entire security deposit should have been doubled before any deductions were taken. Id. at 538-39.

Our decision in Kang In Yi was in keeping with the statutory provision embodied in N.J.S.A. 46:8-21.1. There, the Legislature provided that a landlord has a duty to return a deposited tenant's security or an itemized notice for any deductions within thirty days after the termination of the tenancy. By not complying, the court "shall award recovery of double the amount of said moneys, together with full costs of any action and, in the court's discretion, reasonable attorney's fees." Ibid. The language utilized by the Legislature imposes a mandatory recovery of double the amount of the security deposit with interest and costs. By not doubling the amount of the security deposit after taking the permissible deductions, the trial court erred.

We therefore reverse the order denying reconsideration and remand for entry of judgment for plaintiff, doubling the amount of the security deposit to $1,900, and for the trial court to calculate the amount of interest, costs, and, in the court's discretion, reasonable attorney's fees.

Reversed and remanded for further proceedings consistent with this opinion. Jurisdiction is not retained.

20100616

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