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Nicole Bonanno v. Ramone Wembley and Yirosha Wembley


August 2, 2011


On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Middlesex County, Docket No. SC-1419-09.

Per curiam.


Submitted April 5, 2011

Before Judges Payne and Hayden.

Plaintiff Nicole Bonanno appeals the judgment entered in the Small Claims section of the Special Civil Part, dismissing her complaint for back rent and entering judgment against her on a counterclaim for return of a security deposit. Based upon a thorough review of the record below, we affirm.

Plaintiff filed a complaint against defendants Ramone and Yirosha Wembley on June 16, 2009, seeking reimbursement for unpaid rent and for damages to the apartment. At the hearing scheduled on July 14, 2009, defendant Yirosha Wembley, who lived out of state, appeared by telephone. At defendant's request the trial judge adjourned the hearing in order for her to file a counterclaim for return of the security deposit. On the next scheduled date, August 18, 2009, defendants had not yet filed a counterclaim. The trial judge again adjourned the matter at defendants' request to allow the filing.

On September 8, 2009, the matter was again scheduled to be heard. Defendant Yirosha Wembley again appeared by telephone and stated that she had tried to file the counterclaim but the papers were returned to her. At first, judge said he would only hear plaintiff's complaint. After hearing testimony on that complaint, the judge decided to allow the counterclaim for the security deposit to be heard "in the interest justice."

Plaintiff rented an apartment to defendants in November 2008. The lease provided that the rental would be a month-to-month tenancy. Defendants gave plaintiff a $2,250 security deposit and agreed to pay $1,500 per month rent.

The lease included a provision on eviction, which stated,

If the Tenant does not pay rent within five (5) business days after it is due, the Tenant may be evicted. The Landlord may also evict the Tenant if the Tenant does not comply with all the terms of this Lease and for all other causes allowed by law.

The lease also contained a provision which stated that "[n]o dogs, cats, or other animals are allowed in this Apartment without the Landlord's written consent."

In March 2009, plaintiff became aware that defendants had a dog in their apartment. Plaintiff testified that she sent a letter to defendants on March 10, 2009, stating, . . . I am sorry to inform you that you either have to get rid of the dog or let us know that you intend to move by March 31, 2009. If you choose to keep the dog, we will give you a thirty day written notice by April 1, 2009 and you will have to vacate the apartment by April 30, 2009.

Plaintiff was unable to provide any proof that she mailed the letter. Plaintiff testified that she wrote another letter on April 1, 2009, informing defendants that "we will not be renewing your lease for the month of May due to the fact that you have broken the lease by getting a pet. You must vacate the apartment by April 30, 2009."

Defendant Yirosha Wembley testified the defendants only received a handwritten note informing them that they must vacate the premises by April 30, 2009, because of the violation of the no-pet policy. She denied receiving the March 10, 2009, letter that plaintiff claimed she sent. Defendant testified that because plaintiff told them to leave the apartment, they moved on April 5, 2009.

On April 8, 2009, plaintiff filed a complaint for eviction against defendants on the grounds that they had violated their lease due to keeping a pet and for non-payment of rent for April 2009. Judgment for eviction was entered after default on April 29, 2009.

Plaintiff provided the judge with the letter she had sent to defendants in April 2009, with an accounting of expenses set off against the security deposit.*fn1 Plaintiff testified that defendants "trashed" the apartment, leaving it extremely dirty with holes in the walls. She submitted photos to the judge that she said showed the damages. Plaintiff showed the judge bills for carpet cleaning, wall repairs, house cleaning, and new locks.

By contrast, defendant soundly denied plaintiff's claims. Defendant testified that she had not damaged the walls or left an excessively dirty house. She stated that, following plaintiff's husband's instructions, she had left the keys in the mailbox so there was no need to immediately change the locks.

After hearing the testimony, the judge held,

The . . . plaintiff gave the defendant 30 day[s] notice, there's a notice in writing . . . dated April 1, 2009, . . . this is not a legal notice. This is a notice for breach of the lease and the landlord has to send a letter, a notice to cease, and give the tenant reasonable time to get rid of the pet and then a notice to quit. This is neither of those and even if it were a notice to quit, it is not 30 day's notice, it is 29 day's notice. It is totally unlawful. . . . if you're seeking to deduct money there's no April rent because she left in the beginning of April because she was told to leave.

You threw a tenant out with absolutely no notice . . . .

I credit the tenant because this landlord has totally ignored its responsibilities under the lease and the security deposit law.

The judge explained how he calculated the amount due to defendants.

[D]educations are $190.46 and the carpet had to be especially cleaned. $100 for the cleaning above and beyond . . . what a landlord would normally have to do. And $200 for repair and spackling. The total is $490.46 leaves a balance of $1,762.34.

The trial judge then entered an order dismissing plaintiff's complaint for the April rent and damages and awarded defendants $1,762.34 security deposit on the counterclaim. Plaintiff appeals this order, requesting the rent due for the month of April and dismissal of the security deposit complaint.

Our review of the factual findings made by a trial judge in a non-jury case is quite limited. Estate of Ostlund v. Ostlund, 391 N.J. Super. 390, 400 (App. Div. 2007). It is not our task to "weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence." Mountain Hill, L.L.C. v. Township of Middletown, 399 N.J. Super. 486, 498 (App. Div. 2008). Generally, a judge's factual findings "should not be disturbed unless they are so wholly insupportable as to result in a denial of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974) (internal quotations and citations omitted).

In this case the trial judge made a credibility determination that defendant was truthful. We will not substitute our assessment of the evidence for his, as we are obligated to accept his findings of facts as long as they could reasonably have been made on the record before him. State v. Locurto, 157 N.J. 463, 471 (1999). We have carefully examined the record and conclude that defendant has failed to demonstrate any error in the judge's findings of fact. Accordingly, we accept those facts.

The Anti-Eviction Act, N.J.S.A. 2A:18-61.1 to -61.21 comprehensively regulates the grounds and procedures for evicting a tenant. Unless the landlord demonstrates compliance with these statutory provisions, a judgment for possession may not be entered. N.J.S.A. 2A:18-61.3. Under N.J.S.A. 2A:18-61.1(d) a landlord may move to evict a tenant who has "after written notice to cease," continued to "substantially violate or breach any of the landlord's rules and regulations governing said premises."

Four statutory preconditions must be satisfied before a landlord can file to evict the tenant. Ashley Court Enters. v. Whittaker, 249 N.J. Super. 552, 557 (App. Div. 1991). The preconditions are (1) that the lease provision be violated; (2) that the landlord give notice to cease the violation; (3) that the tenant continued to violate the rules and regulations; and finally, (4) that the landlord give the tenant one month notice of termination before filing suit. Ibid. (citing RWB Newton Assocs. v. Gunn, 224 N.J. Super. 704, 709 (App. Div. 1988)).

Here, the trial judge credited defendant's testimony that she did not receive the March 10 letter, which plaintiff alleged she sent. As a result, the judge found that notice to cease and to terminate was only provided to defendants in the April 1, 2009, letter. Therefore, there was not adequate notice under N.J.S.A. 2A:18-61.2(b).

Further, the judge determined that plaintiff illegally terminated the lease by noticing defendants to leave by April 30, 2011 without giving notice and an opportunity to cease the lease violation. Consequently, the judge found that no rent was owed to plaintiff for April as defendants had vacated the premises at her request. We are satisfied that the trial judge correctly found that plaintiff did not comply with the notice requirements of the statute and improperly terminated the lease. We agree with the conclusion of the trial judge that under these circumstances defendants did not owe April rent.

Plaintiff also argues that the counterclaim under the Security Deposit Act (SDA) should be dismissed as it should not have been allowed at the trial. We must reject this argument.

This action was brought in the Small Claims section of the Special Civil Part. We have often recognized the "inherent and express authority of a judge hearing a case in the Small Claims section to recognize defenses to the claim asserted in the complaint and in appropriate cases to fashion a counterclaim." Reilly v. Weiss, 406 N.J. Super. 71, 85 (App. Div. 2009) (internal quotations and citations omitted). Specifically, we have noted that in the landlord-tenant situation, especially in an action by the landlord for damages to the apartment, we can "envision scant prejudice to the landlord if the trial judge converts a defense that some or all of the expenses charged by the landlord against the security deposit are unfounded to a counterclaim for all or part of the wrongfully withheld security deposit." MD Assocs. v. Alvarado, supra, 302 N.J. Super. at 587. We conclude that in this case similar reasoning permits a like result.

The record established that plaintiff was seeking damages for the alleged "trashing" of the apartment by defendants. Plaintiff brought to court documentation for the expenses for repairs and pictures to show the condition of the apartment. Additionally, defendants had stated they were going to file a counterclaim, thereby indicating their disagreement with plaintiff's accounting of the security deposit funds. Plaintiff's claim that she was unprepared to address the issue of damages concerning the security deposit claim is unpersuasive. We are unable to see any prejudice to plaintiff from having the same evidence concerning the extent of damage to the apartment considered both for plaintiff's complaint and defendants' counterclaim.

The Security Deposit Act, N.J.S.A. 46:8-19 to -26 "establishes the landlord's obligations in unmistakable and definite terms, and clearly provides a mandatory remedy for default." In Yi v. Re/Max Fortune Props. Inc., 338 N.J. Super. 534, 538 (App. Div.), certif. denied, 169 N.J. 610 (2001). Specifically, the SDA provides that the landlord is obligated to return the security plus interest less any reasonable damages and costs to the tenant. N.J.S.A. 46:8-21.1.

We are satisfied that allowing the counterclaim for the security deposit to proceed at the trial was in the interest of justice. Requiring the counterclaim to be filed and heard on another day, after the testimony had been heard and findings made, would have been impractical and unwise from the standpoint of judicial economy. Reilly v. Weiss, supra, 406, N.J. Super. at 84.

Here the trial judge rejected plaintiff's claims of extensive damage to the apartment, reduced the amount claimed to what he deemed reasonable damages, and then deducted the damages from the security deposit.*fn2 Plaintiff has presented no meritorious argument attacking the judge's factual findings or calculation of the security deposit amount wrongfully withheld. Hence, under the circumstances of this case, we reject plaintiff's contentions that the counterclaim should not have been heard and the court should not have entered judgment for defendants.


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