STEVEN J. BRADSHAW v. DONALD J. GLUCK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4951-11T4

STEVEN J. BRADSHAW,

Plaintiff-Appellant,

v.

DONALD J. GLUCK,

Defendant-Respondent.

__________________________

August 23, 2013

Argued December 12, 2012 - Decided

Before Judges Simonelli and Accurso.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-9347-11.

Michael J. Confusione argued the cause for appellant (Hegge & Confusione, LLC, attorneys; Mr. Confusione, of counsel and on the brief).

Tracy L. Burnley argued the cause for respondent (Marshall, Dennehey, Warner, Coleman & Goggin, attorneys; Ms. Burnley, on the brief).

PER CURIAM

Plaintiff Steven J. Bradshaw appeals from the May 25, 2012 Law Division order, which granted summary judgment to defendant Donald J. Gluck and dismissed the complaint with prejudice. We affirm.

The following facts are derived from evidence submitted by the parties in support of, and in opposition to, the summary judgment motion, viewed in the light most favorable to plaintiff. See Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995).

Defendant is a realtor who represented a landlord in the lease of the landlord's home. On January 14, 2011, plaintiff executed a lease to rent the home from January 22, 2011 to January 26, 2012. Plaintiff paid a $3500 security deposit and pre-paid the yearly rent of $28,000. A realtor represented plaintiff in the transaction.

The lease contained a clause prohibiting pets (the "no pets" clause). It also contained a three-day review clause, which provided that the three-day review period began on the date the signed lease was delivered, and the lease became binding unless cancelled within the review period. Other clauses provided that the lease could not be changed "except in writing signed by the Landlord and the Tenant[,]" and that in the event of the tenant's default, the tenant forfeited "any and all deposits as liquid[ated] damages."

Plaintiff claimed that at the time he signed the lease, defendant verbally agreed that plaintiff could have a cat and the "no pets" clause would be amended accordingly. Plaintiff also claimed he did not receive a copy of the lease signed by the landlord until after he moved into the home, and that this was when he discovered that the "no pets" clause had not been updated. Plaintiff did not cancel the lease within three-days of delivery or otherwise contact the landlord about the "no pets" clause or defendant's alleged verbal agreement that plaintiff could have a cat.

The landlord eventually discovered that plaintiff had a cat and sent him a notice to cease on April 1, 2011. Thereafter, as the dispute over the cat intensified, plaintiff did a "google" search of the landlord, whom he had never met. Plaintiff claimed that his "google" search revealed articles indicating that the landlord was affiliated with a Philadelphia crime family.

On April 6, 2011, plaintiff retained an attorney. Plaintiff vacated the home on May 21, 2011, and never asked the landlord or defendant to return his security deposit or the balance of the pre-paid rent. According to plaintiff's attorney, in June 2011, defendant told him that defendant "knew, prior to the time that [plaintiff] rented the subject property, that . . . [the landlord] was a 'white-collar' criminal with an 'ankle bracelet.'"

Plaintiff's attorney allegedly advised plaintiff not to pursue a lawsuit against the landlord due to the landlord's reputation and to ensure plaintiff's safety. Plaintiff filed a pro se complaint against defendant. Plaintiff did not allege any specific cause of action; he merely asserted that he and his wife had been "the subject of intimidation tactics" by the landlord and defendant failed to disclose the landlord's criminal background. Plaintiff sought the return of his security deposit, a refund of eight months' pre-paid rent, an award of attorney's fees incurred in responding to the notice to cease, and $13,200 in private monthly mortgage insurance payments incurred as a result of "a hurried purchase of a new residence."

Defendant filed a summary judgment motion after the close of discovery. In opposition, plaintiff argued for the first time that defendant's non-disclosure of information about the landlord's criminal background constituted a violation of the Consumer Fraud Act (CFA).1 Plaintiff asserted that defendant knew the landlord for a long time and was aware of the landlord's criminal conduct at the time of the lease signing.

The trial judge granted the motion, concluding that plaintiff had no claim against defendant. The judge determined that any claim plaintiff may had that defendant agreed to remove the "no pets" clause from the lease was barred by plaintiff's failure to raise the issue during the three-day review period following plaintiff's receipt of the lease bearing the landlord's signature. The judge also determined that the lease became legally binding three days after plaintiff received it; plaintiff knew the landlord would not permit pets; and plaintiff breached the lease by having a pet. The judge found there was no evidence that the landlord was a violent criminal who may endanger a tenant's life, and defendant's knowledge of the landlord as a "white collar" criminal was not sufficient under the CFA to constitute a material fact mandating disclosure.

This appeal followed. On appeal, plaintiff contends there was sufficient evidence to withstand summary judgment on his CFA claim.2

Our review of a ruling on summary judgment is de novo, applying the same legal standard as the trial court. Nicholas v. Mynster, 213 N.J.463,477-78 (2013); Tymczyszyn v. Columbus Gardens, 422 N.J. Super. 253, 261 (App. Div. 2011), certif. denied, 209 N.J.98 (2012). Thus, we consider, as the trial judge did, "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill, supra, 142 N.J. at 536). Summary judgment must be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). If there is no genuine issue of material fact, we must then "decide whether the trial court correctly interpreted the law." Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007), certif. denied, 195 N.J. 419 (2008). We review issues of law de novo and accord no deference to the trial judge's conclusions on issues of law. Nicholas, supra, 213 N.J.at 478 (citing Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009).

To establish a claim under the CFA, plaintiff must show that defendant engaged in unlawful conduct, plaintiff sustained an ascertainable loss, and there was a causal relationship between the alleged misconduct and the loss. Int'l Union of Operating Eng'rs Local No. 68 Welfare Fund v. Merck & Co., 192 N.J.372, 389 (2007).

Plaintiff does not challenge the trial judge's determination that any claim plaintiff may had that defendant agreed to remove the "no pets" clause from the lease was barred by plaintiff's failure to raise the issue during the three-day review period following plaintiff's receipt of the lease bearing the landlord's signature. Accordingly, there is no dispute that plaintiff breached the lease by having a cat. The breach had absolutely nothing to do with whether or not the landlord was a "white collar" or violent criminal or whether defendant was aware of anything about the landlord's background. Plaintiff breached the lease and, thus, cannot establish an ascertainable loss or a causal relationship between defendant's alleged misconduct and the loss plaintiff allegedly sustained. Plaintiff's alleged damages flowed solely from his breach of the lease, not from any CFA violation by defendant. Thus, we need not address the issue of whether defendant had any duty to disclose the landlord's background to plaintiff because all of plaintiff's losses flow from his independent breach of the lease by violating the "no pets" clause. Accordingly, the trial judge properly granted summary judgment.

1 N.J.S.A. 56:8-1 to -195.

2 We reject plaintiff's attempt to raise a common law fraudulent concealment claim for the first time on appeal. Alloway v. Gen. Marine Indus., L.P., 149 N.J. 620, 643 (1997).