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Catherine Fofana v. Robert Leather

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 28, 2012

CATHERINE FOFANA, PLAINTIFF-RESPONDENT,
v.
ROBERT LEATHER, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Camden County, Docket No. DC-4643-11.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 19, 2012

Before Judges Fisher and Grall.

Plaintiff Catherine Fofana filed a complaint in the Special Civil Part seeking an order compelling her landlord, defendant Robert Leather, to return her $1500 security deposit. Defendant filed a counterclaim asserting that plaintiff owed him $4585, $3500 for past-due rent and $150 for late fees, court costs and over $700 for damage to the leased premises. Following a trial to the court, Judge Laskin awarded one-half of the deposit to plaintiff and the other half to defendant. Defendant appeals, arguing that the judge should have held plaintiff responsible for all of the damage he alleged and not returned any of her deposit. Plaintiff did not participate in this appeal.

Plaintiff and her adult daughter, Nicole Hoffman, signed a lease agreeing to rent defendant's townhouse for a term beginning on May 23, 2009 and ending on June 30, 2010. The security deposit was $1500 and the monthly rent was $1000. At the end of the lease, plaintiff and Nicole continued to reside in the dwelling on a month-to-month basis. In October 2010, plaintiff gave defendant notice that she intended to vacate the premises in December by making a notation on the rent checks for October and November. Plaintiff and Nicole took a lease for another residence that commenced in December 2010.

The date of plaintiff's departure from the townhouse was in dispute, and the facts were murky because another of plaintiff's daughters, Michele, stayed behind. Consequently, plaintiff and Nicole visited Michele and plaintiff kept the utilities in her name.

Indeed, this dispute actually involves Michele's continued occupancy of the premises after plaintiff and Nicole left. Michele remained with her boyfriend, her five children and a dog. According to plaintiff, defendant knew Michele and her family would live in the townhouse after plaintiff left, and he told them he would rent the townhouse to Michele. Although defendant did not directly acknowledge such an agreement, he admitted telling Michele he would prepare a lease if she came up with the money. That was never done, however.

By defendant's account, Michele never paid him a "dime."

In February 2011, defendant obtained an order evicting plaintiff and Nicole. In March, the order was executed and Michele left.

In support of his counterclaim for property damage, defendant testified that he had to replace the washer and dryer he installed before plaintiff took occupancy and a second washer and dryer he provided thereafter. He claimed that the tenants damaged the appliances but conceded that the damage could have been caused after plaintiff and Nicole vacated the premises. According to defendant, the carpeting and flooring were also damaged, and the smoke and carbon monoxide detectors and a fire extinguisher were missing. Nicole admitted that some of the damage to the carpet occurred while she and plaintiff were living in the townhouse.

On that evidence, Judge Laskin determined that it was appropriate to award each party one-half of the $1500 deposit. He found that there was damage to the townhouse, but he also found that the parties' mutual failure to memorialize their agreements and inability to establish with any certainty the date on which plaintiff vacated precluded him from determining who was living where and when.

On this record, we cannot conclude Judge Laskin erred or abused his discretion. Defendant did not establish that plaintiff remained in the townhouse beyond the end of November 2010, or when the damage, other than the damage to the carpet, was done. Defendant's share of the deposit, $750, is $50 more than the estimated $700 amount for property damage stated in his complaint. We affirm because the judgment is based on findings that are adequately supported by the record. R. 2:11-3(e)(1)(A).

Affirmed.

20120628

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