CLEO EDWARDS v. MT. PISGAH REALTY, LLC

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2720-04T52720-04T5

CLEO EDWARDS,

Plaintiff-Respondent,

v.

MT. PISGAH REALTY, LLC,

Defendant/Appellant.

_____________________________

 

Argued November 9, 2005 - Decided

Before Judges Hoens and Seltzer.

On appeal from a Final Judgment in

the Superior Court of New Jersey,

Law Division, Hudson County,

SC-2447-04.

Roberta L. Tarkan, attorney for appellant.

Respondent Edwards did not file a brief.

PER CURIAM

This is an appeal by defendant-landlord, Mt. Pisgah Realty, LLC, from a Small Claims verdict in favor of plaintiff-tenant, Cleo Edwards, on her claim for reimbursement of an overpayment of rent. Plaintiff has not participated in this appeal. We correct the amount of the judgment to reflect the testimony of plaintiff, specifically accepted by the trial judge, as to the amount she had given to defendant, and we affirm.

Plaintiff was a tenant in property owned or managed by defendant. The apartment rented by plaintiff was located in Jersey City and was subject to the Rent Control Ordinance enacted by that municipality. That Ordinance limited plaintiff's monthly rent to $331.49. The security deposit that defendant could lawfully retain was limited to 150 per cent of the rent, N.J.S.A. 46:8-21.2, or $497.24.

Plaintiff moved into the apartment on March 1, 2005. The dispute centered around plaintiff's rental payment for the months of March, April, May, and June, as well as her payment of the security deposit. In response to the judge's questioning, she testified as to the payments she had given to defendant:

THE COURT: And did you leave a security deposit?

MS. EDWARDS: Yes.

THE COURT: How much?

MS. EDWARDS: 775.

THE COURT: And that was a security deposit?

MS. EDWARDS: Yes. One --

THE COURT: What was the monthly rent?

MS. EDWARDS: The same, 775.

THE COURT: 775 a month rent.

MS. EDWARDS: Yeah.

THE COURT: Okay. And when you moved in, did you give him the security and the rent?

MS. EDWARDS: Yes

THE COURT: Okay. Now --

MS. EDWARDS: And -- can I --

THE COURT: One second.

MS. EDWARDS: Okay.

THE COURT: Did You -- did you pay March's rent?

MS. EDWARDS: Yes.

THE COURT: April's?

MS. EDWARDS: Yes.

THE COURT: May?

MS. EDWARDS: Yes.

THE COURT: June?

MS. EDWARDS: Yes.

. . .

THE COURT: Okay, wait a second. So you paid four months at 775.

MS. EDWARDS: And the security. Um-hum.

THE COURT: Okay. So you paid March, April, May, and June. So you paid four months at 775. Okay.

Plaintiff also testified that, as a result of a "mistake", she had given defendant an additional $25 toward the security deposit.

On this testimony, plaintiff paid to defendant $3,900 (four months rent at $775 plus a $775 security deposit and additional payment of $25 for the security deposit). At the same time, the defendant was permitted to collect only $1,823.20 (four months rent at $331.49 plus a security deposit of $497.24). Plaintiff was entitled, on her testimony, to $2,076.80 representing the difference between what she paid and what she should have paid. Defendant denied liability, asserting that plaintiff had given defendant only a portion of the money she had claimed to have paid. The trial judge resolved the credibility dispute in favor of the plaintiff, finding that she had given all of the money to defendant as she had testified and rejecting defendant's claim that only a portion of the money had been received. Those factual findings are supported by substantial credible evidence in the record and may not be disturbed on appeal. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974).

Nevertheless, the judge entered judgment against defendant in the amount of $2,826.80. It appears that the judge obtained this amount by recognizing a payment of rent of $775 for each of four months and a payment of $1,500 as a security deposit but without counting the $25 additional security deposit made by "mistake." So far as we can determine from this record, the error occurred when the judge was examining plaintiff's proofs of payments. He summarized plaintiff's testimony: "According to the testimony of the plaintiff, she paid rent for four months at 775 and left a $1500 security deposit." In fact, as we have described, plaintiff's testimony was that she had made four rental payments of $775 and left a security deposit in the amount of $775 and another deposit of $25 or $800. There is no evidential support for any other finding.

 
In light of our analysis of the record respecting the proofs about the sums plaintiff actually paid, we deem it appropriate to exercise our original jurisdiction, see R. 2:10-5, and find as a matter of fact that the amount by which plaintiff overpaid defendant was $2,076.80. We therefore direct that the judgment previously entered in plaintiff's favor be corrected to reflect judgment in favor of plaintiff and against defendant in the amount of $2,076.80 and we affirm the judgment as modified.

Affirmed as modified.

(continued)

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5

A-2720-04T5

November 22, 2005