ANDREW T. WEBER v. THOMAS BONFIGLIO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3410-09T3

ANDREW T. WEBER,

Plaintiff-Respondent,

v.

THOMAS BONFIGLIO,

Defendant-Appellant.

________________________________________________________________

March 1, 2011

Submitted February 15, 2011- Decided

Before Judges Payne and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Monmouth County, Docket No. SC-4713-09.

Kevin Denaro (Bonfiglio and Asterita, LLC), attorney for appellant.

Respondent has not filed a brief.

PER CURIAM

In this landlord/tenant action, defendant Thomas Bonfiglio appeals from a February 25, 2010 judgment entered against him in the Special Civil Part in the amount of $3500, based upon a finding that he failed to return the security deposit paid by the tenant, plaintiff Andrew T. Weber, or provide the tenant with the required itemized statement of the cost of repairing damage caused by the tenant. We conclude that the judge's findings of fact are well-supported by the record, and the conclusions reached from those facts are sound. We affirm.

I.

On November 1, 2008, Bonfiglio rented a house in Monmouth Beach to Weber for a monthly rent of $3500 subject to a $5250 security deposit. Weber paid the rent in a timely fashion from the inception of the lease in November 2008 through the payment made on February 1, 2009. On February 28, 2009, Weber wrote to Bonfiglio, notifying him that he would be deducting $1200 from the rent because of excessive heating bills, which were the result of a problem with the furnace. Consequently, in March, Weber submitted a rent payment in the amount of $2300.

Bonfiglio wrote to Weber advising him that he was not entitled to reduce his rent payment in that fashion, after which Weber telephoned Bonfiglio to discuss the problem. According to Weber, he explained to Bonfiglio what the furnace repair technician had told him, and, according to Weber, "from that point forward, I never heard back from [Bonfiglio] ever again" about the $1200 deduction.

Weber admitted that he did not pay the last month's rent, commenting that he engaged in a form of self-help because he did not believe Bonfiglio would return his security deposit. To reduce the amount of the security deposit, he chose not to pay the last month's rent, knowing that Bonfiglio would deduct it from the security deposit. Thus, according to the Special Civil Part complaint that Weber filed, the net security deposit that remained due and owing was $1750. Not until January 4, 2010, did Bonfiglio mail Weber a letter specifying the damage he claimed was created by Weber, along with the amount he spent for repairs.

Bonfiglio did not appear for trial, although his attorney was present. The judge permitted Bonfiglio's attorney to cross-examine Weber and to argue that Weber's deduction of $1200 for the allegedly excessive heating bill was unauthorized and improper.

After considering Weber's testimony and the arguments presented by Bonfiglio's attorney, the judge found that Bonfiglio had not provided Weber an itemized statement of damages within the thirty days required by N.J.S.A. 46:8-21.1. Therefore, Bonfiglio was required to have returned the security deposit to Weber within thirty days of lease expiration. In determining the amount of the security deposit that Bonfiglio should have returned, the judge determined that Weber's $1200 deduction from the March 1, 2009 rent was appropriate.

After deducting the unpaid October rent from the $5250 security deposit, the judge concluded that Bonfiglio was required to have returned the sum of $1750 to Weber within thirty days of lease expiration. Because Bonfiglio had not done so, the judge doubled the $1750 as required by N.J.S.A. 46:8-21.1, and entered judgment against Bonfiglio in the amount of $3500.

On appeal, Bonfiglio raises a single claim. He maintains the $1200 that Weber deducted from the March rent was improper, and therefore the judge erred by refusing to credit Bonfiglio for that amount. We disagree.

When a judge hears witness testimony at trial, and makes findings of fact based upon that testimony, the judge's findings are binding upon us so long as they are supported by substantial and credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Here, Bonfiglio presented no testimony to contradict Weber's assertion that his winter heating bills were exorbitant because of the broken furnace, and that he had deducted $1200 from the March 1 rent to offset the vastly increased heating bills that resulted from the broken furnace. In light of the undisputed testimony, we have no occasion to disturb the judge's findings of fact on that subject.

N.J.S.A. 46:8-21.1 requires a landlord to return the security deposit within thirty days of lease termination unless, no later than the thirtieth day, the landlord sends the tenant an itemized statement of damages the tenant caused to the property. N.J.S.A. 46:8-21.1 further specifies that if the landlord fails to provide the itemized statement within thirty days, the court shall double the security deposit less any appropriate offsets. Because we defer to the judge's determination that Weber was entitled to deduct the $1200, we likewise concur in the judge's determination that the portion of the security deposit that remained due and owing to Weber once the unpaid October rent was deducted, was $1750. When that amount was doubled, as required by N.J.S.A. 46:8-21.1, Weber was entitled to judgment in the amount specified in the February 25, 2010 order.