VITO CUCCURULLO, JR v. SCOTT LYSENKO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2910-10T3

VITO CUCCURULLO, JR. and

JESSICA L. FOX,

Plaintiffs-Respondents,

v.

SCOTT and LISA LYSENKO,

Defendants-Appellants.

________________________________________________________________

October 25, 2011

Submitted October 4, 2011 - Decided

Before Judges Carchman and Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Warren County, Docket No. SC-000023-11.

Scott and Lisa Lysenko, appellants pro se.

Vito Cuccurullo, Jr. and Jessica L. Fox,

respondents pro se.

PER CURIAM

Defendants Scott Lysenko and Lisa Lysenko appeal from a judgment of the Special Civil Part ordering the return of a security deposit to their former tenants, plaintiffs Vito Cuccurullo, Jr. and Jessica L. Fox. Following a trial, Judge Amy O'Connor determined that defendants had improperly withheld $510.88 from the security deposit, and consistent with the provisions of N.J.S.A. 46:8-21.1, the judge doubled1 the amount and entered judgment in favor of plaintiffs for $1021.76 together with costs of the action. We affirm.

The facts adduced at trial are simply stated. In March 2006, plaintiff Jessica Fox entered into a lease agreement with defendants for the rental of a duplex apartment at 310 Pennsylvania Avenue, Phillipsburg. At the time, Fox tendered to defendants a security deposit of $1382.61. Thereafter, Fox's boyfriend, Cuccurullo, moved into the apartment, and both plaintiffs executed a new lease dated April 1, 2009.

Plaintiffs gave notice to terminate the lease on October 7, 2010. On October 31, 2010, defendants conducted a "walkthrough" to inspect plaintiffs' apartment. Following the inspection, on November 1, 2010, defendants e-mailed plaintiffs about claims for damages. The claimed damages included a broken stove handle, a dirty stove, a one-and-a-half-inch-deep hole in the area from which the tenants had removed an above-ground swimming pool, holes in two doors and stained floors. According to defendants, "Other than that, everything else looked fine." On November 17, 2010 defendants, by regular mail, sent Fox a letter, which plaintiffs received on November 19, 2010, itemizing the damages defendants withheld from the security deposit. Included in the itemization were the following charges: $500.00 (early termination fee); $145.40 (stove handle replacement part); $30.00 (labor - clean stove top); $30.00 (labor - clean hood); $28.00 (stove drip bowls); $12.10 (six- inch stove trim rings); $24.96 (eight-inch stove trim rings); $42.92 (six-inch surface burners); $53.26 (eight-inch surface burners); $226.33 (pro-rated sewer bill); $26.73 (grass seed for swimming pool hole); and $310.00 (door replacements). These items amounted to $1429.70, and because the security deposit amounted to $1382.61, defendants claimed plaintiffs owed a balance of $47.09.

At trial, plaintiffs challenged the itemized damage claims other than the $145.40 for the stove handle, which they had agreed to replace, and the pro-rated sewer bill for $226.33. Plaintiffs claimed that defendants had attempted to merge language from a different lease, which lease contained an early termination provision that was not included in Fox's original 2006 lease; Cuccurullo conceded that he did not read the new lease but assumed that it did not include an early termination fee. He then discussed the other itemized damages, asserting that the plaintiffs cleaned the apartment thoroughly, including the stove. He claimed that the stove was simply old and that any damages were "normal wear and tear." He also noted that the initial security deposit included a $100.00 fee used for cleaning prior to Fox's occupancy in 2006.

Cuccurullo claimed that plaintiffs had also remedied the other items listed by defendants. He noted that he had ordered $174.00 worth of dirt, refilled the hole in the yard and applied grass seed. He also stated that he had filled the door holes with wood filler, sanded them and polished them with Old English. Cuccurullo stained the doors, and he claimed that when he saw that the new stain did not match the older stain, he offered to re-stain the doors, but defendants told him he did not need to do so. Plaintiffs' claims as to the clean condition of the apartment at the end of the occupancy were corroborated by Nancy Stone, who was present when plaintiffs vacated the apartment.

As to defendants' claims, Lisa Lysenko noted that the termination fee was included in the new lease. She also observed that although the stove was between fifteen and twenty years old, she "[didn't] care if the stove was 30 years old, [it] still worked." As for the stove burners, defendant stated, "They're shot. I mean they were not cared for. I don't know. I don't know why they would rust. I have an electric stove and my burners are not rusty."

The judge inquired as to defendants' failure to observe the various damaged items during their inspection of the property. Defendants conceded that these problems should have been observed. "[T]here were lights on in the kitchen. As a matter of fact, there's a picture of the fan and the light, how filthy the fan was. And we were honestly, I don t know how we missed it." Defendant also stated that she used a settlement charge guideline issued by the Landlord Protection Agency to estimate charges for her labor involved in cleaning the stove. As to the remaining damages, defendants stated that although plaintiffs filled the swimming pool hole with dirt they failed to properly seed it, and that although plaintiffs attempted to fix the holes in the doors, the work was not to defendants' satisfaction.

In her decision, Judge O'Connor concluded that plaintiffs were required to pay the $500.00 early termination fee, reasoning that plaintiffs' failure to read the lease was not a defense. As to the stove, the judge determined that the problems, including the rust and grease, were normal "wear and tear," and the plaintiffs were not held responsible. Finally, the judge concluded that as to the holes in the wall, "if there were holes the size of a fist or a foot in the two doors that the landlord should have seen them or would have seen them during that walk-through on the last day. I'm not going to make the tenants pay for that." The court also agreed with plaintiffs that defendants wrongfully charged plaintiffs for the grass seed.

The judge concluded that defendants wrongfully withheld $510.88. Applying N.J.S.A. 46:8-21.1, she doubled the amount defendants owed plaintiffs to $1021.76. Defendants appeal.

The thrust of defendants' arguments on appeal is that the judge's findings and conclusions were in error, and defendants properly deducted the various claimed amounts. In essence, they challenge the fact-finding of the trial judge. In assessing their various claims, we set forth the standard of review, which ultimately is dispositive of the issues on appeal.

Our review of the factual findings of a trial judge sitting without a jury is limited. Reilly v. Weiss, 406 N.J. Super. 71, 77 (App. Div. 2009). The judge's factual findings are "binding on appeal when supported by adequate, substantial, credible evidence" and should not be disturbed unless they are so insupportable as to result in a denial of justice. Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)).

The Security Deposit Act (SDA), N.J.S.A. 46:8-19 to -26, was enacted to protect tenants from overreaching landlords who require security deposits and then divert them to their own use. Gibson v. 1013 N. Broad Assocs., 172 N.J. Super. 191, 194 (App. Div. 1980); Jaremback v. Butler Ridge Apartments, 166 N.J. Super. 84, 87 (App. Div. 1979).

In pertinent part, N.J.S.A. 46:8-21.1 provides:

Within 30 days after the termination of the tenant's lease . . . the owner . . . shall return by personal delivery, registered or certified mail the sum so deposited plus the tenant's portion of the interest or earnings accumulated thereon, less any charges expended in accordance with the terms of [the] . . . lease . . . to the tenant . . . . [A]ny such deductions shall be itemized and the tenant . . . notified thereof by personal delivery, registered or certified mail.

. . . .

In any action by a tenant . . . for the return of moneys due under this section, the court upon finding for the tenant . . . shall award recovery of double the amount of said moneys, together with full costs of any action and, in the court's discretion, reasonable attorneys' fees.

"The 'moneys' referred to represent the net amount due to the tenant for the security deposit and interest 'less any charges expended [by the landlord] in accordance with the terms' of the lease." Jaremback, supra, 166 N.J. Super. at 87. Moreover, "[a] court may not withhold the statutorily mandated doubling of a wrongfully retained security deposit based on its view that the landlord's violation . . . was de minimus or other equitable considerations." Hale v. Farrakhan, 390 N.J. Super. 335, 343 (App. Div. 2007).

Defendants challenge the judge's findings as to the condition of the stove, grass seed and doors. The judge's findings were based on observations of various photographs, testimony and documentary evidence. From this evidence, she made factual findings, based on credibility determinations and her consideration of the evidence presented. Her findings were clear and precise, and we find no basis upon which to intervene or disturb her factual determinations. In sum, we find no merit in defendants' appeal.

A

1 N.J.S.A. 46:8-21.1 provides in relevant part: "In any action by a tenant . . . for the return of monies due under this section, the court upon finding for the tenant . . . shall award recovery of double the amount of said monies, together with full costs of any action and, in the court's discretion, reasonable attorney's fees."