JOSEPH LUNA v. HEDY J. SALVIO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3084-11T1

JOSEPH LUNA,

Plaintiff-Respondent,

v.

HEDY J. SALVIO,

Defendant-Appellant.

__________________________________

December 17, 2012

Submitted December 11, 2012 - Decided

Before Judges Yannotti and Harris.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Bergen County, Docket No. SC-170-12.

Hedy J. Salvio, appellant pro se.

Joseph Luna, respondent pro se.

PER CURIAM

Defendant Hedy J. Salvio appeals from the January 23, 2012 judgment in favor of plaintiff Joseph Luna following a bench trial in the Small Claims Division of the Special Civil Part. We affirm.

I.

We derive the facts from the pleadings, trial testimony, and exhibits. Salvio is the owner of a two-family dwelling located in Wallington. On October 28, 2010, Luna and Vanessa Diaz1 executed a "Twelve Months Rental Agreement" (the lease) with Salvio for the rear first-floor, one-bedroom apartment at the premises together with "an assigned section of [the basement] for [s]torage." By its terms, the lease commenced on November 1, 2010, and would automatically renew (with a monthly rent increase of $25) one year later, unless terminated by either party "by giving to the other party not less than two full month's notice in writing."

The lease required the payment of rent of $875 per month and called for a security deposit of $1312.50, which was paid by Luna. Additionally, pursuant to a separate "Pet Agreement," Luna posted a $400 "Pets Fee" deposit with Salvio, which permitted two dogs to live in the apartment.2 The "Pet Agreement" provided that the deposit "will be returned to the Tenants within 30 days after they have proved that they no longer keep this [sic] pets or when they vacate the apartment."

In August 2011, Luna advised Salvio that he was having difficulty paying the rent and inquired about terminating the lease. Before Luna could follow-up, Hurricane Irene struck New Jersey on August 28, 2011, causing significant flooding that damaged the first-floor apartment, the basement, and its contents.

On September 5, 2011, Luna sent a letter to Salvio, which stated, among other things, that he "intended to vacate the premises on or before . . . [October 31, 2011]." The letter further described the impact of Hurricane Irene:

Because of the natural disaster of Hurricane Irene that occurred on [August 28, 2011,] I could no longer live on the premises. The flooding caused the destruction of all my belongings and left the apartment in an unsuitable condition to live in. I have cleaned the apartment and have removed my personal belongings and [will] turn in my keys on or before [September 15, 2011].

Lastly, Luna wrote, "I would appreciate the return of my security deposit within [thirty] days after I have vacated my apartment." He provided a forwarding address for the return of the funds.

Luna testified that during September 2011, he could not live at the premises. He was, however, "going back in there just to rid [his] property out of the [premises]." He testified further that

[i]t did smell. You know, the wood floors were warped. The sheetrock was also warped. It was falling apart. The cabinets there [had] water in them.

Salvio portrayed the premises differently. She contended that the storm damage was minimal, but she responded to the aftermath of Hurricane Irene by immediately engaging a contractor to restore the premises, which took several days to complete.

On November 21, 2011, Salvio wrote a letter to Luna, which explained that, after applying the security and pet deposits, Luna owed Salvio $425.61. A summary of Salvio's calculation is the following:

Two Months Unpaid Rent: $1750.00

Late Fee: $50.00

Window Shades and Door Stoppers: $60.00

Hole-in-Wall Repair: $35.00

Dog Damage: $250.00

Total Debits: $2145.00

Security Deposit: $1312.50

Interest: $6.89

Pet Deposit: $400.00

Total Credits: $1719.39

Amount Due Salvio: $425.61

Luna did not remit the amount claimed by Salvio, and instead filed the small claims complaint on December 6, 2011. In his pleading, Luna sought $3000 in damages because

I was forced to leave my residence due to Hurricane Irene and the flooding of my apartment, but my landlord wanted me to continue to pay rent for the months in which I wasn't going to stay because of property damage.

[I] was told that no major restoration of the apartment was to take place and I simply couldn't afford to reside and put myself at risk by remaining in a contaminated, mold infested apartment especially after I had lost more than half of my belongings. I only had [two] more months to my lease, but had to opt out early [due] to the damage and was never handed my security back even after sending my landlord a letter asking [for] it through certified mail. I was homeless, lost a week of work, and had to surrender my dog on top of dealing with my landlord hass[le]ing me to continue paying rent after the apartment was tarnished. She owes me $400 in pet fee agreement and $1312.50 in security deposit.

At trial, Luna, Salvio, and Diaz testified. Additional testimony was provided by William Marino, Jr., a contractor hired by Salvio, and Cindy Salvio, a resident of the premises' other dwelling (and Salvio's daughter). The trial judge heard differing accounts about the extent of the damage to the premises, the quantity of water that entered the premises, and the restoration efforts undertaken after Hurricane Irene left the area. The judge also learned that the premises had previously been flooded by severe weather events. Documents and photographs were admitted into evidence, which were all considered by the trial judge before he rendered judgment.

The judge discounted the testimony of Salvio and her daughter concerning the supposed inconsequential amount of water that entered Luna's apartment. The judge relied upon photographs in evidence to discern "a debris line from flood water . . . that's nine inches up in the room." Additionally, the judge did not believe Salvio's statement that she had disclosed the existence of prior flooding to Luna. The judge stated,

[s]o I cannot accept Mrs. Salvio's testimony about certain things[,] including[,] ["]I disclosed this place could flood.["] I don't believe that was disclosed. I think if that was disclosed to [Luna], [the tenants] might not have rented the apartment and [they] certainly would [not] have put all of [their] stuff in the basement. All of [their] stuff is trash now.

Now, when you have a failure to disclos[e] something as important [as] that at the inception of the contract, that makes the contract voidable at the other party's option and [Luna] voided the contract. [Luna] said [the tenants didn't] want to be involved in this lease anymore because of the flooding.

Based upon this conclusion, the judge then calculated the debits and credits between Luna and Salvio. In summary, he found the following:

Dog Damage: $350.00

Total Debits: $350.00

Security Deposit: $1312.50

Interest: $6.89

Balance of Pet Deposit: $50.00

Total Credits: $1369.393

Doubling of Total Credits: $2738.78

Accordingly, judgment in the amount of $2738.78 was entered in favor of Luna. This appeal followed.

II.

Our review of the factual findings made by the trial judge in a non-jury trial is quite limited. Estate of Ostlund v. Ostlund, 391 N.J. Super. 390, 400 (App. Div. 2007). "'[W]e do not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence.'" Mountain Hill, L.L.C. v. Township of Middletown, 399 N.J. Super. 486, 498 (App. Div. 2008) (quoting State v. Barone, 147 N.J. 599, 615 (1997)). In general, the judge's factual "findings . . . should not be disturbed unless they are so wholly insupportable as to result in a denial of justice[.]" Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974).

[Reilly v. Weiss, 406 N.J. Super. 71, 77 (App. Div. 2009).]

Guided by these principles, we discern no basis to intervene in this matter.

Salvio presents no persuasive arguments4 that the trial judge abused his discretion in determining that Salvio's material misrepresentation her failure to disclose the potential for flooding of the premises made the lease voidable when Hurricane Irene rendered the apartment uninhabitable and destroyed most of Luna's belongings. Additionally, Salvio points to no sound principles that would impel us to disturb the factual conclusions of the trial judge, which were reached after a full exploration of the evidence and cogently explained on the record.

Affirmed.

1 In the midst of trial, the trial judge sua sponte amended the complaint to add Diaz as a party-plaintiff after learning that she had paid half of the monies that Luna was seeking to recover from Salvio. Salvio never objected because Salvio stated, "[y]es, she's on that lease." For ease of reference, we will refer to both tenant-plaintiffs as Luna, except where necessary for clarity.

2 We observe that the aggregate deposit here exceeded one and one-half times the monthly rent, contrary to the Security Deposit Act, N.J.S.A. 46:8-19 to -26. See Reilly v. Weiss, 406 N.J. Super. 71, 78-79 (App. Div. 2009); Chatterjee v. Iero, 380 N.J. Super. 46, 54 (Law Div. 2005).

3 The trial judge made an arithmetical error in the amount of fifty cents. He found "$1312.50, $50, and $6.69, that is $1369.89 that the plaintiff was entitled to get back from the defendant." However, when the judge doubled the total, he reached the correct mathematical amount of $2738.78.

4 Salvio's reference to N.J.S.A. 46:8-50, requiring landlords to notify tenants of flood zone locations in certain circumstances, is inapposite. The trial judge did not base his decision on this statute when he determined that Luna had a right to void the lease.