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Birch v. Levy

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 12, 2010

KEVIN T. BIRCH AND BIRCHWOOD, INC., PLAINTIFFS-RESPONDENTS,
v.
JEFF LEVY AND MIKE BROWN, DEFENDANTS-APPELLANTS.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Monmouth County, Docket No. DC-13179-05.

The opinion of the court was delivered by: Per Curium

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 1, 2010

Before Judges Rodríguez and Reisner.

This is the second time that we review this landlord-tenant case. The facts are fully set forth in our first opinion. Birch v. Levy, No. A-1110-07T1 (App. Div. Sept. 25, 2008).

Kevin Birch and Birchwood, Inc. (collectively "Landlord") sued Jeff Levy and Mike Brown (collectively "Tenants") in the Special Civil Part for non-payment of rent and damage to personal property. The judge entered a default judgment and later, a wage execution order.

Tenants moved successfully to vacate the default judgment. They answered and counterclaimed. On the trial date, Tenants appeared with their attorney, but Landlord failed to appear. The judge entered a judgment by default on the counterclaim and dismissed Landlord's complaint with prejudice. A levy was placed on Landlord's bank account. Landlord moved to vacate the judgment and levy. The judge denied the motion. Landlord moved for reconsideration and the judge denied that motion as well. On appeal, we reversed the judgment against the Landlord and remanded for a trial on the merits of the complaint and the counterclaim.

On remand, a different judge held a bench trial and found Landlord credible and concluded that there was an oral lease with Tenants. She found that Tenants had moved out owing rent and having damaged the apartment. The judge offset the amount Tenants owed by the amount of their security deposit.

On appeal from the remand, Tenants contend that Levy had no relationship with Landlord and that Landlord's "failure to comply with N.J.S.A. 46:8-21.1 precludes his defense of the counterclaim." We are not persuaded that a reversal is warranted.

The findings made by the trial judge are supported by the proofs. Therefore, we have no warrant to interfere. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). Credibility issues and the weight to be attached to testimony are issues for the trier of fact to determine. State v. Locurto, 157 N.J. 463, 470-71 (1999). Therefore, we reject the contention that Levy was not a Tenant.

We also reject the contention that the security deposit statute, N.J.S.A. 46:8-21.1, precludes Landlord's defense. Although the Landlord did not adequately notify Tenants as to the location of their security deposit, the judge properly applied the security deposit to the rent. That left nothing owed to Tenants. In fact, they still owed money to the Landlord. Tenants were not entitled to double damages pursuant to the security deposit law.

Lastly we reject a contention that the judge should not have reinstated the complaint. That issue is moot. On our first appeal, we adjudicated that issue in Landlord's favor. It is the law of the case. CFG Health Sys., LLC v. County of Essex, 411 N.J. Super. 378, 384 (App. Div.), certif. denied, ___ N.J. ___ (2010).

Affirmed.

20100812

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