PETER ROGERS v. MEZZINA FAMILY, L.L.C.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4604-05T54604-05T5

PETER ROGERS,

Plaintiff-Respondent,

v.

MEZZINA FAMILY, L.L.C.,

Defendant-Appellant,

and

HOBOKEN RENT LEVELING AND

STABILIZATION BOARD,

Defendant.

______________________________

 

Submitted October 1, 2007 - Decided October 19, 2007

Before Judges S.L. Reisner and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, L-3536-05.

Spector & Dimin, attorneys for appellant (William N. Dimin and Michelle Joy Munsat, on the brief).

Cathy C. Cardillo, attorney for respondent.

PER CURIAM

Defendant Mezzina Family, L.L.C. appeals from a March 30, 2006 trial court judgment awarding plaintiff Peter Rogers $140,294, plus counsel fees and costs, following the trial court's determination that defendant violated the Consumer Fraud Act (CFA or Act), N.J.S.A. 56:8-2, by charging rent in excess of that permitted under the local rent control ordinance. We affirm.

I

Defendant, a limited liability company operated by the Mezzina family, owns an eight-unit apartment building in Hoboken. On June 1, 1997, defendant rented an apartment to plaintiff at a rent of $700 per month. The first page of the lease referred to the landlord's right "to pass along to the tenant any increase in property taxes, water and sewerage charges [in] accordance with the Hoboken Rent Stabilization Board."

At some point after November 1, 2002, when the landlord increased his rent, Rogers sought a legal rent calculation from the Hoboken Rent Leveling and Stabilization Board. The Board's calculation, issued on February 10, 2005, indicated that defendant was significantly overcharging plaintiff. However, plaintiff filed a complaint in lieu of prerogative writs challenging the Board's calculation of a base rent of $437, contending that the base rent should be lower. The trial judge ultimately remanded that issue to the Board to recalculate the rent. On remand the Board determined that the correct base rent was $185, and defendant has not challenged that determination on this appeal. In fact, at oral argument, defendant's counsel conceded that the apartment was rent-controlled and that defendant overcharged plaintiff by some $46,656, in violation of the local rent control ordinance.

In addition to challenging the rent control board's decision, plaintiff's complaint alleged that defendant violated the CFA by charging excess rent contrary to the rent control ordinance. Defendant's answer denied that the Act applied to its property or to its relationship with plaintiff. On December 2, 2005, plaintiff filed a motion for summary judgment. In support of his motion, plaintiff filed a certification attaching the rent control board's calculations.

Defendant did not submit any certifications in response to the motion. Rather, defense counsel argued as a matter of law that defendant might be guilty of a "technical violation" of the rent control ordinance, but defendant had not committed an "affirmative act" so as to trigger strict liability under the Act. Counsel further argued that defendant had no intent to violate the law. The defense also contended plaintiff should be precluded from seeking relief for the years 1997 to 1999, because that time period was earlier than six years prior to the filing of the complaint. See N.J.S.A. 2A:14-1.

Relying on Wozniak v. Penella, 373 N.J. Super. 445 (App. Div. 2004), certif. denied, 183 N.J. 212 (2005), the trial judge concluded that defendant had committed an affirmative act by charging plaintiff excess rent in violation of the rent control ordinance, and therefore, plaintiff need not show that defendant intended to violate the CFA. She concluded that defendant violated the CFA and awarded plaintiff treble damages and counsel fees under the Act.

II

On this appeal, defendant raises the following points for our consideration:

POINT I: THE MOTION JUDGE ERRED AS A MATTER OF LAW IN GRANTING RESPONDENT'S MOTION FOR SUMMARY JUDGEMENT.

A. A Residential Landlord Who Is Not Engaged In The Business Of Renting Apartments Is Not Properly Subject To The New Jersey Consumer Fraud Act.

B. The Motion Judge Erred In Granting Summary Judgment, As The Charging Of Rent, Without Knowledge Of The Allowable Level, Constitutes An "Omission" Under The Consumer Fraud Act, Thus Requiring A Finding Of Intent.

POINT II: THE MOTION JUDGE ERRED AS A MATTER OF LAW IN FINDING THAT THE CONTROLLING STATUTE OF LIMITATIONS WAS EXTENDED BY OPERATION OF THE "DISCOVERY RULE."

We will not entertain defendant's initial contention, that the CFA "is not properly applied to a landlord, such as Appellant, who is not engaged in the business of renting apartments." Defendant did not raise this issue in opposition to the summary judgment motion and, perhaps as significantly, defendant did not submit any legally competent evidence to the trial court to support its contention that it was not in the business of renting apartments. However, if we considered the latter argument we would reject it because defendant is obviously in the business of collecting rent from the tenants in its building.

Defendant's principal argument on appeal is that we should decline to follow our previous decision in Wozniak v. Pennella, supra. The Wozniak decision cogently explained the basis in statute and case law for applying the CFA to a landlord who overcharges a tenant in violation of a local rent control ordinance. Wozniak, supra, 373 N.J. Super. at 456-58. We decline defendant's invitation to reconsider Wozniak; defendant's appellate arguments on this issue require no further discussion in a written opinion. R. 2:11-3(e)(1)(E).

Like the landlord in Wozniak, defendants admit they had been renting apartments in their building for many years. The undisputed record reflects that they were aware of the rent control ordinance and its application to this apartment. In fact, the lease they provided to plaintiff specifically indicated that the apartment was subject to the Hoboken rent control ordinance. And defendant applied for and received approval from the rent control board to pass through taxes and other surcharges to plaintiff. We conclude that Wozniak is entirely on point here and the trial judge correctly concluded that defendant's conduct violated the CFA. See Wozniak, supra, 373 N.J. Super. at 456.

As in Wozniak, we find no merit in defendant's contention that charging rent in violation of the rent control ordinance is not an affirmative act so as to trigger strict liability under the CFA. See ibid.; see also Cox v. Sears Roebuck & Co., 138 N.J. 2, 17 (1994)(under CFA, where defendant commits an affirmative act, plaintiff need not prove intent); Vagias v. Woodmont Properties, L.L.C., 384 N.J. Super. 129, 136 (App. Div. 2006)(realtor's statement to clients that a house was located in a particular section of town was an affirmative act, even if the realtor did not realize that her statement was inaccurate). Moreover, defendant produced no legally competent evidence to support its contention that its principals did not intend to violate the rent control ordinance.

We likewise find no merit in defendant's argument that the discovery rule should not apply to plaintiff's complaint. Contrary to defendant's contention, this is not a contract action. Therefore, defendant's reliance on County of Morris v. Fauver, 153 N.J. 80, 110 (1998), is misplaced. Defendant misrepresented to plaintiff that the allowable rent for his apartment was $700, an amount more than three times the actual legal rent. See Cohen v. De La Cruz, 191 B.R. 599, 604-05 (D.N.J. 1996), aff'd, 106 F.3d 52 (3d Cir. 1997), aff'd, 523 U.S. 213, 118 S. Ct. 1212, 140 L. Ed. 2d 341 (1998). Rogers' undisputed certification established that he did not have a reason to question the amount of rent he was paying, until defendant notified him that it was increasing the rent in November 2002, and he did not discover that the rent was at an illegally high level until after he filed his inquiry with the rent control board. We find no error in the trial judge's decision to apply the discovery rule to toll the six-year statute of limitations otherwise applicable to plaintiff's claim. See Lopez v. Swyer, 62 N.J. 267, 273 (1973); Knight v. Hoboken Rent Leveling & Stabilization Board, 332 N.J. Super. 547, 554 (App. Div. 2000)(holding doctrine of laches should not limit tenant's right to recoup excessive rent paid in violation of rent control ordinance).

Affirmed.

 

We note with disapproval multiple factual assertions in defendant's brief which are not supported by citations to any legally competent evidence in the record.

We granted plaintiff's motion to supplement the record with public documents indicating that defendant previously applied for and received permission from the rent board to pass through other surcharges in December 1997. Plaintiff argued that defendant refrained from passing these surcharges through to him in order to avoid possibly giving him a reason to question the rent he was being charged.

(continued)

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A-4604-05T5

October 19, 2007