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Marusiak v. McCall

September 7, 2010

JESSICA MARUSIAK, PLAINTIFF-RESPONDENT,
v.
PETER MCCALL, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. SC-445-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 31, 2010

Before Judges LeWinn and J.N. Harris.

Defendant Peter McCall appeals from the October 19, 2009 order of the Special Civil Part, entering judgment in favor of plaintiff, Jessica Marusiak, in the amount of $3391 plus costs. We affirm.

The factual background pertinent to this decision may be summarized as follows. On April 21, 2009, plaintiff entered into a one-year lease of an apartment owned by defendant, in Ringoes, New Jersey.*fn1 Plaintiff lived in this apartment with her then two-year-old daughter.

In early August 2009, plaintiff "was rearranging [her] daughter['s] room and . . . started finding mold everywhere. It was black, green, gray. It was creeping up her bookcase, it was on the bottom of all the furniture, it was on her toys. [She] later found it inside of [her] couch. It was just everywhere." As a result, plaintiff discarded "a lot" of her daughter's toys and books and her shoes.

On August 8, 2009, plaintiff notified defendant about her "concerns with the mold." Defendant came to the apartment, observed the mold and then provided plaintiff with a dehumidifier for the apartment. Plaintiff testified that the dehumidifier "was filling up . . . two gallons a night." Defendant "agreed to install air conditioning . . . [b]ut when he wasn't at home, the air conditioning wasn't on."

Defendant obtained a laboratory report on the mold condition in plaintiff's apartment. That report, dated August 14, 2009, concluded that "[u]nusal [m]old [c]ondition(s)" existed in the apartment, and that the "mold identified in th[e] report is often associated with excess moisture and can be a problem in indoor environments at high levels." Plaintiff thereafter researched some of the molds identified in the report on the Internet, and determined that several of those molds were particularly harmful.

Plaintiff explained that she did research "on the Internet" about the mold because she "really liked [her] apartment, and if it was something that seemed harmless[,]" she was willing to stay. However, her research revealed "several pages that classified most of the molds found . . . as toxic, dangerous. One of them said it was the second most dangerous to black mold."

Plaintiff thereupon notified defendant that she would "probably be leaving . . . right away[,]" as she was concerned about her young daughter's health, adding that she had "been feeling quite sick for some time [herself]." She stated that "the place smelled really bad, so . . . everything just started to make sense that it was about the mold."

Plaintiff notified defendant that she vacated the apartment on August 18, 2009. She demanded return of her security deposit in the amount of $1800; however, defendant refused to remit that amount. Therefore, on September 16, 2009, plaintiff filed a complaint in the Special Civil Part seeking $3600 representing double the amount of her security deposit pursuant to N.J.S.A. 46:8-21.1.*fn2

On October 9, 2009, defendant filed a counterclaim seeking damages in the amount of $2942.16, based on claims that plaintiff violated the terms of the lease by keeping a cat in her apartment which damaged carpets that had to be cleaned, and that defendant had to make various repairs to the apartment for conditions caused by plaintiff's negligence.

At trial, plaintiff pointed out that section 8.2 of the lease provided: "If in any event . . . damage suffered to the [p]remises result[s] in that the [p]remises is not suitable for the purpose for which it has been leased, it shall constitute a ground for the [t]enant or the [l]andlord to cancel this [l]ease." She testified that defendant had sent her a check in the amount of $1800, representing her security deposit but without ...


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