September 10, 2013
BHARAT PATEL, Plaintiff-Appellant,
MARGARET RYAN, Defendant-Respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 13, 2013
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. SC-1456-12.
Bharat Patel, appellant pro se.
Respondent has not filed a brief.
Before Judges Lihotz and Guadagno.
Plaintiff-landlord Bharat Patel appeals from a July 20, 2012 Special Civil Part Order dismissing his complaint against defendant-tenant Margaret Ryan, seeking alleged unpaid rent, late and other claimed fees and costs, following a hearing, during which the judge concluded a dispute existed regarding the leasehold's habitability and the tenant had escrowed the rent and sought a hearing. We affirm.
Defendant leased the first floor apartment of plaintiff's two-unit Jersey City home. He filed an action alleging defendant failed to pay rent for the months of May and June 2012, totaling $2600. Defendant continued to occupy the premises. Plaintiff admitted he had filed an action for the unpaid rent in landlord-tenant court, which remained pending.
Plaintiff admitted defendant resumed possession of the premises without executing a lease, which ultimately was executed in November 2011. She paid the first month's rent of $1300 and a portion of the security deposit of $500, on October 23, 2011. Plaintiff asserted defendant agreed to satisfy the remaining $800 needed for the security deposit when she had the money. Plaintiff consulted the Hudson County Legal Referral Service, paying a $25 fee, and spoke to an attorney regarding his rights to collect the unpaid rent, paying the attorney $300. Finally, he had filing fees of $28 for the landlord-tenant matter and $22 for the small claims suit.
Defendant testified she paid the entire $1300 security deposit: $500 in October and $800 on November 25, 2011, when she signed the lease. Regarding the alleged unpaid rent, defendant explained she challenged the habitability of the premises and escrowed $2600 with the court because plaintiff failed to make necessary repairs. Specifically, she averred the oven is inoperable, she received notice of zoning violations, there are no smoke detectors, and the windows are nailed shut.
Upon confirming with plaintiff that the rent had been escrowed and that a Marini hearing was pending, the judge dismissed plaintiff's complaint. Further, regarding the security deposit, the judge found defendant's and her sister's testimony that the entire $1300 was paid credible and plaintiff's contrary assertions, not credible.
Plaintiff appealed from the order, arguing the judge's findings are against the weight of the evidence. Plaintiff suggests he always gave receipts to defendant for all cash payments, which included only $500 for security, not the $1300 found by the judge.
In our review, we must defer to the trial judge's factual findings supporting the legal conclusions, so long as "'there is sufficient credible evidence in the record to support the findings.'" Brunson v. Affinity Fed. Credit Union, 199 N.J. 381 397 (2009) (quoting State v Adams 194 N.J. 186 203 (2008)) We recognize the trial judge has had the "opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a 'feel of the case' that can never be realized by a review of the cold record" NJ Div of Youth & Family Servs v LL 201 N.J. 210 226 (2010) (internal quotation marks and citation omitted)) We "may not 'engage in an independent assessment of the evidence as if [we] were the court of first instance'" In re Taylor 158 N.J. 644 656 (1999) (quoting State v Locurto 157 N.J. 463 471 (1999))
Here the judge set forth her credibility determinations grounded on her consideration and assessment of the witnesses' testimony The judge specifically rejected plaintiff's assertion noting the lease executed in November 2011 states the security deposit was received and based on the accepted testimony of defendant and her witness The record supports these findings which we will not disturb