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Top Quality Realty, LLC and Emad Nairooz v. Joseph Cupo


February 17, 2012


On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Hudson County, Docket No. DC-30829-09.

Per curiam.


Submitted May 18, 2011

Before Judges R. B. Coleman and Lihotz.

Defendants Joseph Cupo, Assunta Cupo, and Josephine Cupo appeal from a Special Civil Part judgment awarding plaintiffs, Top Quality Realty, LLC and Emad Nairooz, $1,399.99 as the net of their security deposit, provided pursuant to the terms of a commercial lease. We affirm.

On June 28, 2005, plaintiffs signed a three-year agreement with an additional two-year option, leasing the first floor in defendants' commercial building to operate a real estate office. Plaintiffs provided a $2,200 security deposit. Following expiration of the lease in June 2008, plaintiffs did not exercise the option but remained in the premises, paying the increased rent stated in the lease for the period of July 2008 to June 2009.

Plaintiffs vacated the premises sometime between May 31, 2009 and June 30, 2009.*fn1 The date plaintiffs left and whether they had provided proper notice was disputed. On July 3, 2009, defendants mailed a letter to plaintiffs asserting plaintiffs "vacated the premises without proper notice." The letter advised that plaintiffs' security deposit would be retained to satisfy the rent due for June 2009 and defendants also demanded an additional $628, consisting of $100 additional outstanding rent for June 2009 and $528 in attorneys' fees and costs related to a tenancy action commenced by defendants that was dismissed on June 22, 2009. The letter also demanded payment for damages discovered upon inspection of the premises, including $800 to replace a water heater and a demand to replace a broken safety glass window pane, reinstallation of an internal office door, and "numerous nails/nail holes . . . beyond normal wear and tear," later established as $653.*fn2

Plaintiffs did not respond to the letter. On November 23, 2009, they initiated this action seeking return of the security deposit and related damages stemming from defendants' "frivolous [tenancy] action[.]"

Defendants answered and counterclaimed for damages consisting of $2,300 outstanding rent for June 2009; $100 late fee for nonpayment of rent; $802.61 for replacement of the water heater; $652.82 for replacement of safety glass and reinstallation of an internal office door; $1,978.17 for plaintiffs' share of the water bill from July 2006 to June 2009; $1,280.67 for plaintiffs' proportionate share of real estate taxes from third quarter 2007 through second quarter 2009; $628 in legal fees for the tenancy action; and $750 representing the costs of suit for the Special Civil Part action.

Trial was held over two days. Nairooz testified for plaintiffs and Joseph Cupo testified for defendants. The parties also presented additional fact witnesses and introduced documentary evidence.

Nairooz testified he sent a letter, dated March 31, 2009, informing defendants of the intention to vacate the premises "effective June 1, 2009." He maintained he hand-delivered the letter to the second floor of the building, which was defendants' business address according to the lease and where he paid the monthly rent. Nairooz additionally sent a copy of the letter by certified mail.*fn3 The certified letter was received on April 1, but returned to plaintiffs.

Nairooz stated he made arrangements to deliver the keys to Joseph Cupo at the second floor office on Sunday, May 31, 2009, but Cupo never arrived. He called Cupo the next day and offered to deliver the keys, but they were refused. Nairooz then sent the keys to the office through his attorney; however, they were refused. The keys were next sent to the second floor office via Federal Express, but the envelope was returned unopened. Finally, when defendants filed a tenancy action for nonpayment of rent claiming plaintiffs were still on the premises, Nairooz surrendered the keys to defendants during the June 22, 2009 hearing. When the trial judge called the case, it was dismissed.

Marsel Mankabadi, who assisted Nairooz for two days to clean the premises, accompanied him during the attempt to surrender the keys on May 31, 2009. Madian Hernandez, plaintiff's counsel's employee, explained her efforts to deliver the keys personally and by Federal Express. Nairooz introduced the March 31 letter, the Federal Express receipts, and the order dismissing the tenancy action.

Joseph Cupo denied he received plaintiffs' written request to vacate the premises, admitting only that he had a conversation with Nairooz in the second floor office, at which time he was told plaintiffs would leave the premises "on or before June 30, 2009." Cupo denied his business address was the second floor office and insisted Nairooz never called to surrender the keys. He introduced correspondence he sent to plaintiffs to show his address was something other than the premises and asserted the rental checks were sent to this alternate address.

Cupo discussed his attempts to collect the rent after May 31, 2009, stating he was required to engage his son to file the summary dispossess action. He also stated plaintiffs called him to pick up the rent check or mailed it to his home and never paid their portion of the water bill throughout the tenancy, despite being asked "[m]aybe a couple of times." Cupo admitted he never sent a written demand because Nairooz verbally assured he would pay the water charges. As to the real estate taxes, no assessment was sought for 2006 and defendants notified plaintiffs in writing of their proportionate share of the 2007 increase for the first two quarters, which was paid. Thereafter, no written requests for payment were made. Finally, he related the damage to the leasehold to include replacement of the ten-to-twelve-year-old water heater and the glass window pane. Cupo introduced photographs of the premises illustrating its condition upon plaintiffs' surrender, along with various bills for taxes, repairs, and attorney's fees.

Following trial, the judge issued her written opinion accompanied by a judgment in favor of plaintiffs. Apparently crediting Nairooz's testimony, the trial judge found plaintiffs had done "everything in [their] power to effectuate [n]notice [of the] inten[t] to vacate the premises as of June 1 . . . [and] effectuated [the] intent to vacate the premises as of June 1, 2009." Concluding plaintiffs properly terminated the lease, the court noted "defendants' withholding of [plaintiffs'] security deposit was unlawful."*fn4 The trial judge determined the lease

clearly listed the second floor as the business address for defendants, rejected Cupo's assertion he had informed plaintiffs of an alternate address, and concluded Cupo actually attempted to "avoid[] service" of plaintiffs' intention to vacate.

The court dismissed the demands in defendants' counterclaim except for the $800 due to replace the water heater. The trial judge noted plaintiffs never repaired, replaced or notified defendants when the unit failed, they merely turned it off. The judgment awarded plaintiffs $1,399.99, dismissed the remainder of their cross-claim, and dismissed defendants' counterclaim. Defendants' appeal ensued.

Defendants argue the court erred in finding sufficient service of plaintiffs' notice to terminate the lease on March 31, 2009; in determining plaintiffs vacated the premises prior to June 1, 2009; in denying defendants' damage claim for the broken window pane; and in denying the claim for satisfaction of plaintiffs' share of real estate taxes, water bills and defendants' attorney fees. We disagree, determining the trial judge's factual findings are supported by the evidence presented during trial, and we conclude defendants' claims lack sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(1)(E). We add these brief comments.

In our review of non-jury trials, "'[w]e do not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence.'" Mountain Hill, L.L.C. v. Twp. of Middletown, 399 N.J. Super. 486, 498 (App. Div. 2008) (alteration in original) (quoting State v. Barone, 147 N.J. 599, 615 (1997)), certif. denied, 199 N.J. 129 (2009). In this case, many of the findings resulted from credibility determinations, to which we defer. See Jastram v. Kruse, 197 N.J. 216, 230 (2008) (stating appellate courts "must afford 'due deference' to the trial court's 'feel of the case,' with regard to the assessment of intangibles, such as witness credibility" (quoting Feldman v. Lederle Labs., 97 N.J. 429, 463 (1984))). Further, the trial judge's findings regarding plaintiffs' provision of notice to vacate and defendants' actions to attempt to avoid its receipt are well supported by the testamentary and documentary evidence in the record, warranting that we uphold all conclusions.

Defendants' contention that plaintiffs' notice was defective because it may have been sent solely by certified mail, not certified and registered mail as required by the lease, is a technical argument the law will not support. The intent of the parties, evidenced by the certified and registered mail provision of the lease, sought "to insure the delivery of the notice, and to settle any dispute that might arise between the parties as to whether or not the notice was duly received." 243 So. Harrison St. Corp. v. Ogust, 113 N.J. Super. 74, 78 (Cty. Ct. 1971) (internal quotation marks omitted).

After considering the record as a whole, the trial judge reached her conclusions by accepting plaintiffs' proofs and rejecting those submitted by defendants. The credibility findings, along with the court's other determinations based upon the documentary evidence, including defendants' failure to obtain an estimate for the broken window pane and defendants' delay in notifying plaintiffs of the damage, are reasonably made and properly grounded "on sufficient credible evidence present in the record." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (internal quotation marks omitted). That the trial judge rejected conflicting evidence is not a basis for reversal.


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