MICHAEL MANZO v. NICKO JELJENIC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0760-10T4

MICHAEL MANZO,

Plaintiff-Appellant/

Cross-Respondent,

v.

NICKO JELJENIC and LUCY

JELJENIC,

Defendants-Respondents/

Cross-Appellants.

_______________________________

October 11, 2011

Argued September 12, 2011 Decided

Before Judges Grall and Alvarez.

On appeal from Superior Court of New

Jersey, Law Division, Hudson County,

Docket No. L-5575-07.

Patrick S. Brannigan argued the cause

for appellant/cross-respondent (Connell

Foley LLP, attorneys; Anthony Romano, II,

of counsel; Mr. Brannigan, on the brief).

Mario M. Blanch argued the cause for

respondents/cross-appellants.

PER CURIAM

On November 13, 2007, plaintiff Michael Manzo filed a complaint alleging that the tenants of his commercial property, defendants Nicko and Lucy Jeljenic, breached their month-to-month lease, damaged the premises during the occupancy and left garbage, debris and abandoned equipment behind when he locked them out of the leasehold on November 6 or 7, 2001. The trial court dismissed the complaint on the ground that it was filed outside the applicable six-year limitations period, N.J.S.A. 2A:14-1.

Manzo appeals, contending that his claim for property damage did not accrue until he first realized the full extent of the property damage several weeks after the lockout. He presents no argument with respect to the dismissal of his claim for rent. Because the trial court properly determined that Manzo's cause of action for property damage accrued no later than November 7, 2001, we affirm.

The premises at issue consist of the first floor and basement of a building in Jersey City. The facts, viewed in the light most favorable to plaintiff, compel the conclusion that he was aware that the Jeljenics were damaging his property throughout their tenancy.

When Manzo acquired title to the property in 1996, Nicko Jeljenic and his partner were leasing the first floor and basement and using the premises to operate a bakery. Nicko and Manzo orally agreed to a month-to-month lease at the rate of $1200 per month. Although Nicko had given the business to his son, he still worked there and Lucy frequently paid the rent.

Between 1996 and September 2001, Manzo visited the premises on a regular basis. He observed and pointed out to his tenants and their employees problems such as mold growing in the refrigerator and water from the defrosting refrigerator lying in puddles on the floor of the bakery and dripping through the floor onto a beam in the basement. Furthermore, Manzo showed Nicko that water was not only dripping onto the beam from above, but also seeping through the beam onto the basement floor. Manzo also saw and complained about dough that had fallen through the floor of the bakery to the basement and old bread he found there. The trash Manzo saw in the basement also included coffee cups that had fallen through holes in the bakery floor, which he described as big as "two foot round." Because the Jeljenics ignored his complaints, the garbage continued to pile up.

Manzo was familiar with the building before he purchased it. During the period the Jeljenics rented the premises from the prior owner, Manzo had done repairs for them unclogging bathrooms, lubricating the chains that held the bakery's mixers and fixing the light and blower in the coal-fueled oven. He continued to make repairs of that sort, at the Jeljenics' request, after he acquired title to the building and while they were leasing it from him. On occasion, he even mixed the dough for the Jeljenics.

Based on his observations of the Jeljenics' bakery operation, Manzo explained how the obvious holes in the floor had developed. According to Manzo, the Jeljencis and their employees carelessly tossed burning embers, shaved from the coal to make the fire hotter into a barrel, positioned at the side of the oven. Those hot embers landed on and burnt holes in the floor.

In September 2001, Manzo sent the Jeljenics a notice to quit as of October 31, 2001, because they had not paid the full rent for September. As noted above, he locked the Jeljenics out of the building on November 6 or 7, 2001.

"Immediately" after the lockout, Manzo took steps to remediate the mold and fumigated to address a rodent infestation. Manzo did not try to rent the premises right away. He explained that he did not offer the premises for rent because he would have been embarrassed by its filth and state of disrepair. He did some work to restore the building himself, cutting out and replacing a burnt section of a beam and replacing other beams that were rotted from water and mold. But he treated the project as one on the "back burner."

In opposition to the Jeljenics' motion for summary judgment based on statute of limitations, Manzo first asserted that he did not "come to realize the full extent of the damage" to the premises until weeks after the November 6 or 7 lockout. He explained that he had not re-entered the building at the time of the lockout because he wanted to wait until he was confident that the Jeljenics were not going to return.

Judge O'Connor found that Manzo, a landlord who had been in the bakery and basement on a regular basis, was or should have been aware of the obvious damage to the premises at least before or around the date of the lockout, not weeks later when he re-entered and obtained an inspection report. We agree.

On appeal, Manzo argues that his awareness of the damage was a disputed factual issue that could not be resolved on a motion for summary judgment. As we understand the argument, his claim is that testimony was required. We disagree.

Whether based on tortious conduct or agreement, Manzo was required to commence this action for property damage within six years of the accrual of the cause of action. N.J.S.A. 2A:14-1. "Ordinarily, a cause of action accrues when any wrongful act or omission resulting in any injury, however slight, for which the law provides a remedy, occurs." Beauchamp v. Amedio, 164 N.J. 111, 116 (2000). By application of the equitable principles that support the discovery rule, "in an appropriate case a cause of action will be held not to accrue until the injured party discovers, or by an exercise of reasonable diligence and intelligence should have discovered that he may have a basis for an actionable claim." Lopez v. Swyer, 62 N.J. 267, 272 (1973). The trial court not the jury must determine whether the discovery rule applies. Ibid. Testimony is generally required "where credibility is significant," but where it is not, affidavits and depositions "may suffice." Id. at 275.

Testimony was not necessary here. Manzo acknowledged that while the Jeljenics were in possession of the premises, he regularly observed and complained about their practices and the damage it was causing to his building gaping holes burnt in the floor, beams rotting from water leaking through the first floor to the basement and trash piling up. His actual knowledge of these wrongful acts and omissions and the consequences, preclude his reliance on the discovery rule, which has been developed and is applied to avoid the inequity of denying a day in court to an injured person who is "unaware that he has a cause of action." Lopez, supra, 62 N.J. at 274. In light of what Manzo admittedly knew before the lockout date, his late-asserted protestation of ignorance about the extent of the damage is immaterial. Whether believed or not, ignorance of the full extent of the damage is not a basis for application of the discovery rule when the party knows that he has been injured and who caused the harm. Id. at 276 & n.4.

For the foregoing reasons, we affirm the dismissal of Manzo's complaint as time-barred. Given our disposition of the case, there is no reason to discuss Manzo's arguments about the Jeljenics' responsibility or to consider the Jeljenics' objection to the trial court's ruling on Manzo's expert report, offered as an alternative basis for a decision affirming the order of dismissal.

Affirmed.