On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Middlesex County, Docket No. SC-1419-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...