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Newark Portfolio Ii v. Deborah Deans and Deborah Montgomery


July 25, 2011


On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, Docket No. LT-2473-10.

Per curiam.


Submitted May 23, 2011

Before Judge A.A. Rodriguez and LeWinn.

Defendants, tenants in an apartment building owned by plaintiff, appeal from the April 28, 2010 order of the Special Civil Part granting plaintiff judgment of possession and ordering defendants to pay $280.15 in rent due. We affirm.

Defendants were tenants in their Newark apartment for twenty-eight years; their monthly rent had been $699 for a number of years. Plaintiff has owned the apartment building since November 2007. Plaintiff sent defendants notices of rent increase in 2008 and 2009. Defendants refused to pay the rent increases, claiming that only the rent control board had authority to increase their rent. Defendants also alleged that plaintiff had failed to make numerous repairs and had ignored their complaints about disruptive upstairs tenants.

On January 5, 2010, defendants sent a letter to plaintiff complaining of its failure to evict the upstairs tenants whom, they claimed, plaintiff had "deliberately place[d] in the apartment above [theirs] to do harm and to destroy [their] Peaceful Quiet Enjoyment and Tranquility . . . and Habitability Rights." Defendants also claimed plaintiff had failed to make repairs noted in an August 28, 2009 inspection report by the rent control board, as further justification for their non-payment of rent.

Plaintiff filed a complaint for non-payment of rent, claiming defendants had failed to pay rent since the previous September, and seeking $3962.35 in back rent plus costs.*fn1 The judge held a trial on April 28, 2010. Plaintiff's representative, Mark Weider, testified that the rent increases were "in accordance" with the rent control board's guidelines. Regarding the upstairs tenants, a husband and wife with two young children, Weider testified he had met with them and "they seem[ed] like perfectly good normal people[,]" but they agreed to relocate when they could find a place appropriate for their family. He noted that defendants had previously made similar complaints about another tenant.

Weider testified that he received an inspection report noting the need to make certain repairs of defendants' apartment. Plaintiff "did many of the repairs that [they] were able to do on the exterior . . . ." However, "when it came to trying to schedule a time and to coordinate making repairs to the interior of [defendants'] apartment, [they were] really not cooperating with management to allow [them] to get that done." Defendants would not "giv[e them] access[,]" even as of the date of trial. Plaintiff sent defendants notices by certified mail of their efforts to schedule repairs inside their apartment; these notices were returned "unclaimed."

Deans testified that defendants did not pay the rent increases because the notices were not served on the anniversary date of their lease. She also described incidents with the upstairs tenants, including one in which the wife "scream[ed]" at her and then "lunged . . . and grabbed [her] by [the] neck, slamming [her] against the wall." She added that they are "bombarded with . . . noise" every day and night.

Regarding the issue of repairs, Deans testified that Weider told her that they "wouldn't be able to stay in [the apartment] while they would do the repairs." She agreed to move out, but the repairs were never made.

Evelyn O'Neil, a relative of defendants, testified on their behalf, stating that when she visited them, she would constantly hear a great deal of noise coming from the upstairs apartment, "like . . . jumping[,] . . . a hammer beating[,] . . . playing basketball . . . ."

At the conclusion of the testimony, the judge rendered a decision from the bench. He noted, initially, his familiarity with the parties, having previously sent them to mediation to attempt to resolve habitability issues.

With respect to the rent increase notices, the judge found that those notices "would have become effective as within the anniversary date of" defendants' lease; he further found that the notices satisfied the requirement of providing "sufficient time for the parties to adjust their affairs, . . . by permitting a notice to quit to be effective on the next ensuing anniversary date o[f] the tenancy."

On the issue of repairs, the judge found that plaintiff "undertook[] reasonable, commercial means in order to gain access to undertake the repairs to which they were obligated." Plaintiff sent defendants notices by certified mail and defendants "didn't go the [their] mailbox[,]" as evidenced by the fact that the letters were returned marked "unclaimed." The judge had before him certified mail receipts addressed to defendants at their residence. The judge stated that he "will not abate rent where access is not allowed."

Regarding the upstairs tenants, the judge noted that, aside from O'Neil's testimony, defendants' only evidence of a problem was an incident report Deans had filed, which the judge found "self-serving." The judge further noted that defendants had not subpoenaed the investigating officer to testify at trial. Moreover, the judge found that defendants' "actions may have precipitated the actions of the other tenant. . . . . [T]here's no . . . complaint of any other tenant . . . . [N]o other tenants . . . came to testify." Therefore, the judge was "satisfied to enter a judgment of possession" and require payment of $280.15 in back rent.

On appeal, defendants contend that the judge erred in failing to apply the principles of Marini v. Ireland, 56 N.J. 130 (1970) "against" plaintiff. There, the Court held "that equitable as well as legal defenses asserting . . . absolution from payment [of rent] in whole or in part are available to a tenant in a dispossess action and must be considered by the court." Id. at 140.

Having reviewed defendants' contention in light of the record, we are satisfied that it is "without sufficient merit to warrant discussion in a written opinion . . . ." R. 2:11-3(e)(1)(E). Judge Ned M. Rosenberg properly applied Marini's principles to this case and we affirm substantially for the reasons stated in his decision from the bench; we are satisfied that the judge's decision is "based on findings of fact which are adequately supported by [the] evidence . . . ." R. 2:11-3(e)(1)(A)


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