STEPHANIE TAYLOR v. TERRY SILVA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5126-09T3

STEPHANIE TAYLOR,

Plaintiff-Respondent,

v.

TERRY SILVA,

Defendant-Appellant.

__________________________________

Submitted May 3, 2011 Decided May 13, 2011

Before Judges Graves and Waugh.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. SC-00604-10.

Terry Silva, appellant pro se.

Respondent has not filed a brief.

PER CURIAM

Defendant Terry Silva appeals from the judgment of the Special Civil Part in favor of plaintiff Stephanie Taylor. We affirm.

Silva is the owner of rental property located on North Sacramento Avenue in Ventnor, in which Taylor rented an apartment. Taylor's lease, however, was with Kira Management, Inc. (Kira), which is apparently a real estate management company of which Silva is a minority owner.

The lease between Kira and Taylor ran from April 1, 2009 through March 31, 2010, although Taylor moved in shortly before April 1. The lease required a security deposit in the amount of $1600, which Taylor paid. She vacated the apartment by February 1, 2010, apparently because of problems with the heat.

On March 18, 2010, Taylor commenced an action in the Special Civil Part for the return of her security deposit. She named Silva, rather than Kira, as the defendant because she had dealt with Silva in renting the apartment.

The matter was tried on April 23, 2010, before Judge Carol E. Higbee. Silva's application for an adjournment due to the absence of a subpoenaed witness was denied. Silva also argued that she was not a proper defendant because she was not a party to the lease. Both Taylor and Silva testified at the trial. The judge reserved decision.

In a written decision dated May 21, 2010, Judge Higbee made findings of fact and conclusions of law. She found that Taylor was entitled to a fifty percent rent reduction for November and December 2009, as a result of which she determined that there was no rent due at the time the apartment was vacated. She further found that Taylor was responsible for some damages, specifically (1) $175 for damage to the deck, (2) $250 for trash removal, (3) $275 for a broken door, and (4) $275 because the locks had to be changed. She found that Silva had failed to prove that Taylor was responsible for (1) certain citations issued by Ventnor or (2) damage to a screen door.

Based upon her findings, Judge Higbee found that $975 in damages should be credited against the $1650 security deposit, leaving a balance due to Taylor of $675. Because the deposit, minus deductions, had been wrongfully withheld, the judge doubled the amount and awarded court costs pursuant to N.J.S.A. 46:8-21.1. This appeal followed.

On appeal, Silva argues that she is not a proper defendant, that the judge erred in denying her request for an adjournment, and that the judge failed to assess the landlord's damages properly. We disagree.

The grant or denial of an adjournment request rests within the discretion of the trial judge. Abtrax Pharm., Inc. v. Elkins-Sinn, Inc., 139 N.J.499, 513 (1995) (quoting Allegro v. Afton Vill. Corp., 9 N.J.156, 161 (1952)). We do "not interfere unless it appears an injustice has been done." Allegro, supra, 9 N.J.at 161. We see no abuse of discretion in the judge's denial of an adjournment request because a utility company failed to respond to Silva's subpoena.

"The general rule is that [factual] findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). Our review of the judge's legal conclusions is plenary. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

The judge correctly determined that Silva, as the owner of the property, was a proper defendant. N.J.S.A. 46:8-21.1 provides that "the owner or lessee" is responsible for the return of the security deposit. Silva testified that she was the owner of the building, which testimony established that she was a proper defendant.

Judge Higbee's factual determinations concerning the issues of unpaid rent and damages were fully supported by the record. She heard and evaluated the testimony of the witnesses. We will not overturn her findings.

Affirmed.