JESSICA MARUSIAK v. PETER McCALL
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1529-09T3
JESSICA MARUSIAK,
Plaintiff-Respondent,
v.
PETER McCALL,
Defendant-Appellant.
__________________________
Submitted August 31, 2010 - Decided September 7, 2010
Before Judges LeWinn and J.N. Harris.
On appeal from the Superior Court of New
Jersey, Law Division, Hunterdon County,
Docket No. SC-445-09.
Peter McCall, appellant pro se.
Jessica Marusiak, respondent pro se.
PER CURIAM
Defendant Peter McCall appeals from the October 19, 2009
order of the Special Civil Part, entering judgment in favor of
plaintiff, Jessica Marusiak, in the amount of $3391 plus costs.
We affirm.
The factual background pertinent to this decision may be
summarized as follows. On April 21, 2009, plaintiff entered
into a one-year lease of an apartment owned by defendant, in
Ringoes, New Jersey.1 Plaintiff lived in this apartment with her
then two-year-old daughter.
In early August 2009, plaintiff "was rearranging [her]
daughter['s] room and . . . started finding mold everywhere. It
was black, green, gray. It was creeping up her bookcase, it was
on the bottom of all the furniture, it was on her toys. [She]
later found it inside of [her] couch. It was just everywhere."
As a result, plaintiff discarded "a lot" of her daughter's toys
and books and her shoes.
On August 8, 2009, plaintiff notified defendant about her
"concerns with the mold." Defendant came to the apartment,
observed the mold and then provided plaintiff with a
dehumidifier for the apartment. Plaintiff testified that the
dehumidifier "was filling up . . . two gallons a night."
Defendant "agreed to install air conditioning . . . [b]ut when
he wasn't at home, the air conditioning wasn't on."
Defendant obtained a laboratory report on the mold
condition in plaintiff's apartment. That report, dated August
14, 2009, concluded that "[u]nusal [m]old [c]ondition(s)"
existed in the apartment, and that the "mold identified in th[e]
1
This lease was a renewal of a one-year lease for the apartment
from April 2008 to April 2009.
A-1529-09T3
2
report is often associated with excess moisture and can be a
problem in indoor environments at high levels." Plaintiff
thereafter researched some of the molds identified in the report
on the Internet, and determined that several of those molds were
particularly harmful.
Plaintiff explained that she did research "on the Internet"
about the mold because she "really liked [her] apartment, and if
it was something that seemed harmless[,]" she was willing to
stay. However, her research revealed "several pages that
classified most of the molds found . . . as toxic, dangerous.
One of them said it was the second most dangerous to black
mold."
Plaintiff thereupon notified defendant that she would
"probably be leaving . . . right away[,]" as she was concerned
about her young daughter's health, adding that she had "been
feeling quite sick for some time [herself]." She stated that
"the place smelled really bad, so . . . everything just started
to make sense that it was about the mold."
Plaintiff notified defendant that she vacated the apartment
on August 18, 2009. She demanded return of her security deposit
in the amount of $1800; however, defendant refused to remit that
amount. Therefore, on September 16, 2009, plaintiff filed a
complaint in the Special Civil Part seeking $3600 representing
A-1529-09T3
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double the amount of her security deposit pursuant to N.J.S.A.
46:8-21.1.2
On October 9, 2009, defendant filed a counterclaim seeking
damages in the amount of $2942.16, based on claims that
plaintiff violated the terms of the lease by keeping a cat in
her apartment which damaged carpets that had to be cleaned, and
that defendant had to make various repairs to the apartment for
conditions caused by plaintiff's negligence.
At trial, plaintiff pointed out that section 8.2 of the
lease provided: "If in any event . . . damage suffered to the
[p]remises result[s] in that the [p]remises is not suitable for
the purpose for which it has been leased, it shall constitute a
ground for the [t]enant or the [l]andlord to cancel this
[l]ease." She testified that defendant had sent her a check in
the amount of $1800, representing her security deposit but
without interest. Defendant, however, subsequently stopped
payment on that check after plaintiff filed her complaint.
Defendant testified that he was "not disputing" what
plaintiff said, and that he "was notified there was mold[,]" but
2 N.J.S.A. 46:8-21.1 provides, in pertinent part that "[i]n any
action by a tenant . . . for the return of [a security deposit],
the court upon finding for the tenant . . . shall award recovery
of double the amount of said moneys, together with full costs of
any action . . . ."
A-1529-09T3
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concluded that it was just "moisture in the air. So the fix for
it was dehumidifiers," which he furnished to plaintiff.
When plaintiff informed defendant that she was moving out,
he advised her that he "would need 30 days notice because this
is after the fact that the mold situation came up." Plaintiff
moved out of the apartment on the following weekend, while
defendant was away.
Defendant sent plaintiff an email stating that "the
refrigerator . . . wasn't clean, [and] there was . . . some
[s]heetrock pulled off the wall." He acknowledged that he did
not state the specific amount of damages he claimed for those
conditions; however he "[l]ater . . . added that, once [he]
found that [he] was being taken to court for double the
security."
Defendant testified to further damage he noticed to a shed
on the property, but acknowledged that he could not say the
plaintiff caused that damage, just that he discovered it after
she moved out "so [he] added that in [his] counterclaim."
Plaintiff claimed that she "cleaned that place from top to
bottom[,] . . . and ha[d] no knowledge" of the claimed damage to
the shed on the property.
At the conclusion of the testimony, the trial judge
rendered his decision from the bench, stating:
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This is a case that basically involves
whether there is a ground[] for a claim of
constructive eviction. . . . [W]hen a
tenant sees defects in a property, the
tenant has an entitlement to either declare
a constructive eviction and move out and/or
. . . repair and deduct, or withhold rent
....
This particular tenant opted to
exercise the first of those options. And
. . . there doesn't seem to be any dispute
that there was a mold condition here, that
it was serious and it needed to be
addressed.
The judge declined to find that plaintiff had broken the
lease by failing to give defendant thirty days' notice, adding:
"It seems . . . there was permission to leave by then. . . .
[T]here was an acknowledgment that [plaintiff] w[as] justified
in leaving. The only change was [that plaintiff] filed suit,
which [defendant] didn't like."
The judge further found that defendant's claimed damages
"should have been the subject of a proper notice if they were
significant, not first appearing on the counterclaim."
Therefore, the judge did not "attach to them much credibility."
The judge did credit defendant $150 "for cleaning the
refrigerator, which may have occurred." The judge then
calculated the amount of interest due and entered judgment on
behalf of plaintiff as noted.
A-1529-09T3
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On appeal, defendant contends that plaintiff vacated her
apartment with no notice, in violation of the lease, and that he
should have been allowed to make repairs within thirty days
before plaintiff vacated the premises.
Having reviewed these contentions in light of the record,
we are convinced they are without merit. We affirm
substantially for the reasons stated by Judge Peter A. Buchsbaum
in his decision rendered from the bench. R. 2:11-3(e)(1)(A).
The undisputed evidence established that four months into
the lease term, plaintiff discovered serious mold conditions
throughout the apartment that had not only damaged her personal
belongings, including her young daughter's toys and books, but
had caused plaintiff herself to feel sick. The laboratory
report obtained by defendant confirmed not only the existence of
mold but the potential risks. Defendant's remediation efforts,
namely two dehumidifiers and an air conditioning system that was
inoperative when he was away from the premises, did nothing to
address the problem.
The gravamen of defendant's argument is that plaintiff is
Therefore, she cannot state
"not an 'expert' in the mold area.
this mold was 'toxic', this is actually a false statement." At
trial, however, defendant acknowledged that he was "not
disputing" plaintiff's testimony, as noted. While no expert
A-1529-09T3
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testimony was presented by either side on the nature of the mold
in plaintiff's apartment, nonetheless plaintiff's unrefuted
testimony was that the mold destroyed property that she then had
to discard, and caused her to feel physically sick.
"[P]resent day demands of fair treatment for tenants with
respect to latent defects remediable by the landlord, either
within the demised premises or outside the demised premises,
require imposition on him of an implied warranty against such
defects. Such warranty might be described as a limited warranty
of habitability." Reste Realty Corp. v. Cooper,
53 N.J. 444,
454 (1969) (citation omitted). Moreover, "[t]he great weight of
authority throughout the country is to the effect that
ordinarily a covenant of quiet enjoyment is implied in a lease."
Id. at 456.
We are satisfied that such an implied covenant is found in
section 8.2 of the parties' lease which, as noted above,
provided that if "damage suffered" to the leased premises is
such that the "[p]remises is not suitable for the purpose for
which it has been leased, it shall constitute a ground for the
[t]enant or the [l]andlord to cancel this [l]ease."
Where, as here,
there is such a covenant, whether express or
implied, and it is breached substantially by
the landlord, the courts have applied the
doctrine of constructive eviction as a
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remedy for the tenant. Under this rule any
act or omission of the landlord . . . which
renders the premises substantially
unsuitable for the purpose for which they
are leased, or which seriously interferes
with the beneficial enjoyment of the
premises, is a breach of the covenant of
quiet enjoyment and constitutes a
constructive eviction of the tenant.
[Id. at 456-57].
Under the circumstances presented here, we are satisfied
that the trial judge was correct in finding that plaintiff had
been constructively evicted from her apartment, and therefore
was not liable for the rent claimed by defendant, and was
entitled to the relief afforded by N.J.S.A. 46:8-21.1.
Affirmed.3
3
We note that defendant presents no argument with respect to the
trial judge's resolution of his counterclaim, except to ask, in
his conclusion, that we "consider the countersuit . . . ." "It
is . . . clear that an issue not briefed is deemed waived."
Pressler, Current N.J. Court Rules, comment for R. 2:6-2 (2010).
See Sciarrotta v. Global Spectrum,
392 N.J. Super. 403, 405
(App. Div. 2007), rev'd on other grounds,
194 N.J. 345 (2008).
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