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Joseph Cohn and Veronica Finkelstein v. Lorraine Hinger and Gina Voiro

December 29, 2011


On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. SC-2950-10.

Per curiam.


Submitted December 7, 2011

Before Judges Fuentes and Harris.

This appeal involves the disposition of a demand for a rent abatement in connection with a residential lease. Plaintiffs were tenants, renting the first floor and unfinished basement of defendants' duplex in Westmont. Plaintiffs never missed a rent payment. Around Thanksgiving 2009, the premises suffered water infiltration and mold growth in the basement, where plaintiffs had laundered their clothing and stored some of their belongings. Plaintiffs moved their belongings upstairs to the living and dining rooms, and the condition was repaired four months later. A few months after that, in mid-2010, defendants sought to sell the duplex to a third party. During a routine inspection of the premises in anticipation of sale, it was serendipitously discovered that the premises lacked ground fault circuit interrupter (GFI) outlets, carbon monoxide sensor devices, and asbestos was present in the basement. After defendants sold the premises, plaintiffs sued for damages occasioned by what they described as breaches of the implied warranty of habitability and the parties' lease. After a trial in the Small Claims Section, the Law Division dismissed the complaint, finding "no evidence of any damages which flow as a result of the property not being safe or sanitary." We affirm.


We derive the facts from the record that was presented to the trial judge. According to plaintiffs, defendants informed them at the lease signing in September 2008 that "there is a window on one end of the basement that . . . leaked water in" and that "some water sometimes seeps into that corner of that basement and the sump pump takes care of it in a few days." Defendants assert, however, that they "never said that the basement only got a little bit of water in the corner," but rather that "[i]t has always been a wet basement."

Plaintiff Joseph Cohn indicated that in late November 2009, "[w]ater was seeping in through the foundation of the basement" following a period of "pretty heavy" rainfall in the area. Plaintiffs contacted defendants about the seepage and "asked them to take care of it," to which defendants responded that they would wait to see if the issue resolved itself within "a few days." When the condition did not subside, defendants began contacting professional waterproofing companies to repair the problem. Defendants hired a waterproofer to assess the situation in late December 2009, and actual repairs commenced in early February 2010. The waterproofing was completed in late March 2010.

Subsequently, defendants decided to sell the property. During the pre-sale home inspection, it was determined that the duplex lacked carbon monoxide detectors and did not have GFI outlets in the kitchen, bathroom, and basement. The inspection also revealed the presence of "openly exposed asbestos" in the basement. All of the conditions were remediated by defendants by mid-June 2010. Plaintiffs were not obliged to vacate the premises for any of the repairs and they paid their full rent due. Plaintiffs continued to live in the duplex after it was sold.

Plaintiffs filed a complaint against defendants in the Small Claims Section, Camden Vicinage, on November 24, 2010, specifically alleging a breach of the implied warranty of habitability and breach of contract. A one-day bench trial was held on December 15, 2010. At trial, Cohn was plaintiffs' only witness. He contended that as a result of the four months it took to complete the basement repairs, he and co-plaintiff Veronica Finkelstein suffered "massive amounts of inconvenience." They were unable to utilize the basement for storage, and they needed to "wear galoshes to go down there every day" to use the washer and dryer. Cohn testified that "incredible amounts of mold" were present as a result of the seepage, and presented the court with photographs of the basement from that time period.

In addition, Cohn asserted that he and Finkelstein suffered inconvenience because they were required to remove all of their belongings from the basement and had to keep their personalty upstairs for at least one week following the repair while the concrete cured. Plaintiffs also moved their belongings out of the basement and into the living and dining rooms during the asbestos removal. Finally, Cohn urged that he and Finkelstein were "exposed to unsafe conditions throughout" their tenancy as a result of the water infiltration, lack of carbon monoxide detectors, uninstalled GFI outlets, and the presence of asbestos in the basement.

Cohn testified that he and Finkelstein did not move out of the apartment or stay at a hotel at any time during this period. He further confirmed that they resided in the duplex even at the time of trial. Plaintiffs stated in their complaint that they "never missed or were late in remitting their rental payments to [d]efendants in full," and that "[i]n total, [they] paid [d]efendants $24,990" in rent." When questioned by the court as to why they "didn't . . . just stop paying the rent, put it into a court escrow, and go into the landlord and tenant court" over their asserted issues, Cohn responded:

Because when you do that, and putting the money in escrow, habitability issues and abatements are not assigned. They're really -- they're really kind of an art. And it's a different value in terms of what you're entitled to and what you're not.

[B]ut there's a strategic reason. And the reason why . . . is because at the end, when you decide whatever it is that we're entitled to back, and whatever that number is, if I put it in escrow it comes in a judgment on the record against me for that amount. Now, sure, that comes out of an escrow account, but that affects my credit, something that I shouldn't have to expose to do it. That's an unfortunate -- you know, it's, you know, built into the system when you go through that route. Instead we chose to pay it in full, discuss the issues with [defendants] in good faith, try to work something out over the course of that year. And when that didn't work, we chose to bring our action to small claims, which is also allowed as a procedure. So, that's what we chose to do because that was more sound to us.

At the close of all of the testimony,*fn1 the court issued an oral decision from the bench, dismissing plaintiffs' complaint in full. The court set forth its reasons, in relevant part, as follows:

Now, I've listened very carefully today to the issues raised by the plaintiff. And, quite honestly, the plaintiff . . . seems to me that he is doing more argument over the definition of habitability than the actual damages which may have occurred regarding the lack of habitability. That's what I've heard today over and over again.

Habitability to me means that the property is not in a way that the tenant can have the normal enjoyment that the law requires a tenant to have, the enjoyment of the property. That's the purpose of me defining habitability. If I find that habitability has been breached, if the legal definition of habitability has not occurred and it has become uninhabitable, obviously, I'm going to find that there may be a cause to give some credit of rent to the tenant.

What have I heard today? I have heard the tenant/plaintiff argue the legal definition of habitability. He has argued to me that as a result of some flooding problems that he was inconvenienced, but the rent was paid, nevertheless, every month.

And an argument could be made, I'm not making that argument, but an argument could be made by the landlord that if the tenant was so inconvenienced, why did he pay the rent every ...

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