LORI KURTZ v. DORIS APUZZO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0248-09T3A-0248-09T3

LORI KURTZ and ANTHONY TRAINOR,

Plaintiffs-Respondents,

v.

DORIS APUZZO,

Defendant-Appellant.

___________________________________________________

 

Submitted June 3, 2010 - Decided

Before Judges Kestin and Newman.

On appeal from the Superior Court

of New Jersey, Special Civil Part,

Middlesex County, Docket No.

SC-1796-09.

Doris Apuzzo, appellant pro se.

Respondents have not filed a brief.

PER CURIAM

Plaintiffs, Lori Kurtz and Anthony Trainor, filed a complaint in the Special Civil Part seeking $1,700 in damages, plus costs. Defendant, Doris Apuzzo, filed an answer along with a counterclaim seeking damages from a breach of a lease agreement. Following a trial, the court decided the matter in an oral opinion and entered judgment for plaintiffs in the amount of $1,700, plus $22 in costs.

Defendant appeals, arguing that the judgment should be reversed because the trial court: 1) deprived her of a fair opportunity to present her defense and advance her counterclaim; 2) did not admit the lease into evidence; and 3) "failed to advise [her] . . . of her right to cross-examine the testifying plaintiff." Defendant also argues that the trial court erred in "fail[ing] to enforce the written lease as agreed to by the parties [and] . . . in fail[ing] to rule on defendant's counterclaim."

Both parties appeared pro se before the trial court and are pro se on appeal. Plaintiffs attempted to state their position on the appeal in the form of a four-page letter addressed to the court, dated September 17, 2009, only three days after the notice of appeal was filed and three months before defendant's brief on appeal was filed, on December 18, 2009. Plaintiffs have filed no formal response to defendant's appellate brief. There is no indication on the face of any document before us that defendant received a copy of plaintiff's September 17 letter. Accordingly, we proceed in disposing of the appeal on the basis of defendant's brief alone.

The short trial involved the testimony of plaintiff Kurtz and defendant, each presenting her version of the events. The record discloses that there was no material dispute of fact; rather, the parties differed only on the meaning, effect, and legal consequences of the undisputed facts.

The parties both testified that they had entered into a six-month lease agreement commencing on July 15, 2009, for a three-bedroom single-family home at a monthly rental of $1,700. Upon receiving the key, plaintiff Kurtz testified, she went to the house to clean it before moving in, but there was no water. Two days later, after the water had been turned on, she reentered the home and discovered a roach infestation. Plaintiffs told defendant of the problem. Defendant said she was unaware of it, and she immediately arranged for exterminator services. Defendant testified that, a week later, she informed plaintiffs the house was ready. Plaintiffs went to the premises and, thereafter, told defendant they wished to terminate the lease because the infestation had not been remedied. Defendant returned the plaintiffs' $1,700 security deposit, but claimed a right to retain the first month's rent of $1,700 because the lease gave her fourteen days to address and correct any occupancy problem.

Following the testimony of both parties regarding their basic positions, the record reflects the following colloquy:

THE COURT: Okay. Ma'am, ma'am, I don't have to hear . . . any more . . . . I've heard cases very similar to this in this Court before and the law is very clear, there is absolutely no room to argue.

[DEFENDANT]: But you tell --

THE COURT: Okay. No, here's what the law is. When a tenant signs a lease, the tenant is entitled to what we call qui[et] enjoyment. That property has to be ready for a tenant to use and enjoy as their residence the same day that the lease provides they move in. In this case, there is no doubt, and I find that when the plaintiffs were ready to move in they found a significant number of roaches in the kitchen in the [daytime]. The defendant admits that she sent an exterminator and that after the exterminator left the plaintiffs did a walk through . . . on July 24th. And that they brought back two roaches which the defendant says were dying. So, there were two live roaches. Under those circumstances, for a family with children, it is clear that at that time the house was not habitable and they could not use it . . . as their residence as intended. Your --

[DEFENDANT]: Well, the company said that it would take a week --

THE COURT: Ma'am, ma'am, the standard is much different if they were living in the house and during the course of their tenancy they found roaches. The landlord would be given a reasonable opportunity to cure that problem and the tenants would have to live with it as long as it was cured within a reasonable amount of time.

[DEFENDANT]: According to our lease --

THE COURT: But -- no, no, ma'am, ma'am, the standard is different when a person is first taking possession. When there is an infestation of roaches, a prospective tenant has the right to reject the lease because the house is not habitable. And they did so, they were within their rights. The lease is invalid --

[DEFENDANT]: Well, why didn't they reject it the first day?

THE COURT: . . . [T]hey gave [sic] an opportunity to see what happened and they did a walk through and they found roaches still there. Therefore, I find that the plaintiffs were within their rights to reject the lease. The lease is invalid. And judgment is entered . . . for the plaintiffs in the amount of $1,700 for the one month rent plus costs.

Although, as a matter of form, it might have been better for the judge to have given the parties an opportunity to cross-examine each other, the lack of any dispute about essential facts leads us to conclude that the judge committed no error of substance or consequence in omitting to do so. Both parties had ample opportunity to place pertinent facts before the trial court. From our examination of the arguments advanced by defendant on appeal, we discern the existence of nothing additional that might have been disclosed on cross-examination and could have changed the result. Moreover, we have examined the lease, submitted by defendant in the appendix to her brief, and conclude that formally admitting it into evidence would have made no difference in the outcome. In the same vein, a formal presentation of the counterclaim for lease damages would not have changed the result, either.

Judge Gelade was correct in his application of the law to the facts presented. See Khoudary v. Salem County Bd. Of Social Servs., 260 N.J. Super. 79, 85 (App. Div. 1992) (holding where premises were uninhabitable and tenant had not yet taken occupancy, landlord "had no contractual basis on which to demand rent because he could not deliver lawful possession and quiet enjoyment of the premises"), appeal after remand, 281 N.J. Super. 571 (1995).

Accordingly, we affirm.

 

(continued)

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A-0248-09T3

July 15, 2010