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Donna M. Vitiello, Crest Management, L.L.C., and Dovan Management v. Jose Marques and 70 Burroughs

May 15, 2012


On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. DC-16067-10.

Per curiam.


Argued November 15, 2011

Before Judges Reisner and Hayden.

In this commercial lease case, plaintiffs Donna Vitiello, Crest Management, L.L.C., and Dovan Management Group, L.L.C., appeal from a January 28, 2011 Law Division Order, which awarded defendants Jose Marques and 70 Burroughs, L.L.C., unpaid back rent and attorneys fees and denied plaintiffs' claim for return of the security deposit. We affirm.

We glean the following from the record. In November 2006, Vitiello, as the principal of Crest Management, L.L.C, later known as Dovan Management Group L.L.C., and Marques, as the principal of 70 Burroughs L.L.C., executed a commercial lease agreement. In the lease, Crest rented office space in a building owned by 70 Burroughs L.L.C. for a term of three years from January 1, 2007 through December 31, 2009. Vitiello, an experienced property manager, planned to use the office space for Crest's residential property management business.

Under the terms of the lease, which was drafted by Marques, the tenant agreed to be responsible for repairing the floors, windows, doors, ceilings, and fixtures, while the landlord was responsible for repairing the roof, outside walls, structural parts of the building, and parking lot. The lease agreement further provided that, if the tenant vacated the premises during the term of the lease, it would be liable for the remaining rent payments. The lease also stipulated that if Crest defaulted on the lease, it was liable to pay "all costs, damages and expenses (including reasonable attorney fees and expenses) suffered by Landlord by reason of Tenant's defaults."

Vitiello and Marques do not agree on the events which preceded this action. According to Vitiello, in late 2007, the building's boiler began to experience problems that interfered with the functioning of electricity and computers and caused the work area to remain exceptionally cold. She also contended that cracks around the windows allowed cold air to seep through the leased premises during the winter and bugs and dust to enter during the summer.

Vitiello stated that she withheld rent for the month of December 2007 because of her dissatisfaction with the office conditions and because of the extra expense from using electric heaters to bring the office to a tolerable temperature. Vitiello alleged that in 2008, after three months of freezing cold, the landlord repaired the heating system. However, she claimed the intolerable cold persisted because, although Marques had promised to replace all the windows, he did not. She also reported a mouse problem, but, she conceded, the problem was a "one shot deal" fixed the same day she complained about it. In addition, she stated that a leak had caused a problem in the women's bathroom.

In contrast, Marques contested Vitiello's accusations and denied that he did not attempt to remedy problems on the leased premises. First, he produced a receipt showing that he replaced thirty feet of baseboard radiators in plaintiffs' office on December 3, 2007, which he claimed solved the heating problem. Marques also submitted that in mid-December 2007, he fixed the electrical circuit breaker in response to Vitiello's complaints, resolving the electricity problem. Marques denied telling Vitiello that he would replace the windows. *fn1

In June 2009, Vitiello sent a letter to defendants complaining about the continued uninhabitable conditions of the office space due to the excessive cold in the winter, the dirt and bugs during the summer, and the recent plumbing issue with the women's toilet. When she received no indication that the landlord would fix the problems, she vacated the premises at the end of August 2009, claiming a constructive eviction.

After the landlord failed to return the security deposit, plaintiffs filed a complaint in Small Claims Court on October 22, 2009. Defendant refused to terminate the lease and counterclaimed for damages based on non-payment of rent, late fees, and attorneys fees. Because the counterclaims exceeded the jurisdictional amount for Small Claims Court, the matter was transferred to the Special Civil Part on February 1, 2010.

Following a two-day trial, Judge Cronin issued an oral decision on November 5, 2010. He found that Vitiello was not candid, gave inconsistent testimony, and was evasive in answering certain questions, which cast doubt on her credibility.

The judge concluded that a constructive eviction had not occurred because the lease clearly specified that the tenant was responsible for repairs inside the building, including windows. The judge pointed out that the lease contained an integration clause that rendered it the entire agreement between the parties. Thus, the judge found that as the lease exempted the landlord from repairs to ...

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