A.S. DHODI v. HELEN INFANTE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3331-04T13331-04T1

A.S. DHODI,

Plaintiff-Appellant,

v.

HELEN INFANTE,

Defendant-Respondent.

_____________________________

 

Submitted: May 10, 2006 - Decided June 2, 2006

Before Judges Grall and King.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, DC-020283-04.

Wolfberg & Wolfberg, attorneys for appellant (Matthew Wolfberg, of counsel and on the brief).

Helen Infante, respondent, pro se.

PER CURIAM

This case involves a residential tenancy. This was a month-to-month tenancy of short duration. Plaintiff landlord sued in the Special Civil part for back rent and for damages to the apartment, demanding in excess of $14,000. The tenant counterclaimed for damages of $5,116, including damages for a refusal to return the security deposit. After hearing the testimony of the pro se litigants and defendant's witness, Natasha Montaleno, Judge Velasquez entered a judgment for the defendant in the amount of $2,724, essentially a resolution of a credibility dispute between the parties.

On this appeal the landlord plaintiff makes these assertions of error, which we recite exactly as presented to us:

POINT I - THE TRIAL COURT ABUSED ITS DISCRETION BY ALLOWING THE TRIAL TO PROCEED WHEN THE PLAINTIFF HAD NOT BEEN SERVED WITH THE DEFENDANT'S COUNTERCLAIM AND BY FAILING TO ALLOW THE REBUT AND/OR CROSS EXAMINE A WITNESS WHO TESTIFIED AGAINST HIM.

POINT II - THE TRIAL JUDGE'S FINDING THAT THE NOVEMBER RENT WAS PAID BY THE DEFENDANT AND THAT THE SECURITY DEPOSIT EXCEEDED ONE MONTH'S RENT WAS UNSUPPORTED BY THE CREDIBLE EVIDENCE.

POINT III - THE TENANT AS A HOLDOVER TENANT AFTER GIVING THE LANDLORD A NOTICE OF HER INTENTION TO QUIT THE PREMISES ON NOVEMBER 30, 2004 AND THEN ON DECEMBER 4, 2004, AND FAILING TO DO SO IS LIABLE TO THE PLAINTIFF FOR DOUBLE THE RENT FOR DECEMBER.

This was a spirited testimonial dispute. There was ample credible evidence to support the judge's fact finding in favor of the defendant tenant, whose testimony was corroborated in part by the prior tenant, Montaleno. Given our standard of review, we find no reason to disturb the Judge Velasquez's findings of fact based on the credibility of the parties. State v. Locurto, 157 N.J. 463, 474 (1998); Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974); R. 1:7-3.

These were the judge's well-supported findings on credibility.

THE COURT: I am not, I am not granting you any monies and I'm doing it frankly because after reviewing your testimony, I can't find you credible. I can't, I don't feel like the things that you've told me are accurate and truthful.

First of all you tell me that she comes in and that she signs this lease. In the first instance you give me one number, then you give me another number, then you tell me you gave her money back. Your stories are inconsistent and because they're inconsistent, it's hard for me to believe that you're telling me the truth.

She shows me receipts for over $3,000 which indicates that she gave you a month and a half rent. You tell me yes, she did give me a month and a half rent but I gave her $450 back.

MR. DHODI: Yes, sir.

THE COURT: But nowhere in any of these documents do you show a receipt or acknowledgement that monies were returned to her, except a notation on a photocopy of an apartment lease that says 921 - 9,021. I don't know what that means.

MR. DHODI: Oh, no, sir, it's a slash. After that is cents.

THE COURT: Court finds that under the circumstances the amount of money delivered or tendered to the plain -- to the def -- plaintiff was a month and a half rent. Well, not a month and a half rent, yeah, a month and a half rent which is 902 plus 451, three five -- $1,353. And the reason I find that amount is because Mr. Dhodi I find your testimony questionable, there's too many inconsistencies in what you've described to me in [y]our relationship with this tenant, and frankly I find Miss Infante to be telling me the truth. She provided me a copy of a moneygram as well as a copy of another receipt totaling thirty one thousand, 55 dollars (sic) which happens to be the amount that you initially told me was tendered as well, except that you now, you now tell me $450 was returned to her. I don't find that credible, I don't believe it, I don't accept it.

So, the Court finds that the security deposit in question is $1,353.

You also testified that you didn't know where she was but I take, I take your representation that you provided her with notice of your intent to withhold the security deposit by hand delivering that item. I'm going to accept that as --

(new tape put in)

THE COURT: -- but I can't give you credit for any of these monies.

First and foremost, I accept her testimony that the check that was delivered to you for the October rent was in fact delivered to you in a timely fashion. You apparently objected to the form of the check because it was not in her name. You lied to me about the fees involved, your bank fees are $8 for the, for the bounced check.

MR. DHODI: Sir, that's as per the lease, $50

THE COURT: Well I know it's for the lease, but it was only really $8 so I'm not going to give you anything for the late fees or charges since I find that the check was tendered to you appropriately. Because you didn't want to accept it because it was someone else's name is not the fault of the tenant. You are obligated to accept any form of, or any tender of lawful monies including checks.

So I'm not giving you anything for the October rent. The November rent while there is some issue and some problems with that, you said you had a witness?

MS. INFANTE: Yes, Your Honor.

*****

THE COURT: Sit down. I'm not allowing for any rental, I'm going to find that the defendant is credible on that issue as well as she did pay you the November rent.

As far as the December rent, you're not entitled to the December rent, you sent her a notice to quit, you advised her to vacate the premises, and I find that her testimony is truthful, that she did vacate the premises on the day indicated and the handing over of keys is of no consequence under these circumstances. Doesn't entail [sic] you or -- it doesn't mean that she has to pay any additional rent because she held over handing over keys to you. You are entitled to a reasonable expense for rental due and owing, I find that she is not under any obligation to pay you rent because as of October she owed you nothing on the fees or late fees or charges. November I find that she in fact did pay and I find that that because I find her testimony to credible and because the testimony of her witness who indicates that you also pursued a claim against her for similar items of damages.

So your credibility is in question throughout these proceedings.

December rent, there's no December rent due and owing. She moved pursuant to a Notice to Quit. I find that she did vacate the premises on November 30th and that in fact there was an agreement to hand over the keys shortly thereafter.

With respect to the other damages, obviously because of your admission that you made a claim for damages to this carpet in a prior complaint, I'm not going to allow anything for that carpet since there are allegations that the carpets were already in bad condition, poor condition. You're not entitled to reimbursement for same.

With respect to, to the cabinets, again I believe the plaintiff -- the defendant, I'm sorry, that those cabinets were damaged when she initiated her tenancy. Her witness has testified to that fact and in fact she's testified that you sought a lawsuit against her for reimbursement of damages to cabinets as well.

I also have a copy of a Notice of Abatement which was filed in October of '04 in which you were found to be in violation for several defect, defective conditions in these premises including the hallway, the kitchen, bathroom, living room, hallways and it does indicate clearly that the cabinets were in disrepair and needed to be either replaced or repaired.

So, I think that is an indication and corroborates the testimony of both of these witnesses that the condition of the premises were in inferior and defective condition even prior to the commencement of, of this, of this tenancy.

So, under the circumstances I find that you're not entitled to any reimbursement of these costs. I find further that you are in violation of the Security Deposit Act, that a security deposit was in fact tendered to you. Number one, you failed to give an itemized statement of the actual deductions but more importantly the Court has found that those deductions that you sought to make were not reasonable, were not justified under the circumstances.

Therefore, this Court finds that you have violated the statute in that you have wrongfully withheld the security deposit. I have found that the total amount of deposit was 1353, defendant is entitled on her counter claim for double the deposit which $2,076. Court will enter a judgment in favor of the defendant on her counter claim for a violation of the Security Deposit Act. The total sum due is $2,076 which is double the security deposit of $1,353.

We affirm based on Judge Velasquez's findings of fact and conclusions.

We see no abuse of discretion in allowing the matter to proceed at trial on the counterclaim. This objection was not raised on the day of trial. The defendant had at least a seventeen-day notice of the pendency of the counterclaim before the hearing on this matter. We sense no prejudice to plaintiff from the procedural course followed here. Finally, as to December's rent, the agreement in court in the prior proceeding supersedes the lease, as the judge implicitly concluded.

Affirmed.

 

(continued)

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A-3331-04T1

June 2, 2006