EMMANUEL ODOEMENE v. EMMANUEL BLAY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

EMMANUEL ODOEMENE,

Plaintiff-Respondent,

v.

EMMANUEL BLAY and BRENDA

BLAY,

Defendants-Appellants.

__________________________________

August 29, 2016

Submitted August 9, 2016 Decided

Before Judges Ostrer and Manahan.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, Docket No. SC-1204-15.

Emmanuel Blay and Brenda Blay, appellants pro se.

Emmanuel Odoemene, respondent pro se.

PER CURIAM

This is a landlord-tenant matter. Defendants Emmanuel and Brenda Blay appeal from the judgment of the Special Civil Part awarding their landlord, plaintiff Emmanuel Odoemene, judgment in the amount of $1289, including costs. Although the Blays concede they broke their lease, they contend that plaintiff fully mitigated his damages by reletting the premises. Alternatively, they argue the court should have granted them an adjournment to subpoena the tenant who allegedly rented the apartment after them. We affirm.

The parties were the sole witnesses at trial. The Blays leased the first floor apartment of plaintiff's building on Central Avenue in Newark for a term of one year ending June 30, 2015. The monthly rent was $1100 and the Blays also paid a security deposit of the same amount.

In April 2015, the Blays decided they needed to vacate the apartment for personal reasons. They failed to pay April rent. Ms. Blay testified that on April 15, 2015, they returned the key to plaintiff and moved out. Plaintiff asserted that although the Blays informed him in the middle of the month that they needed to move, they did not return the key or vacate until the twenty-fifth of April.

Ms. Blay testified that when they returned to the Central Avenue address on April 29, 2015 to retrieve their vehicle, they saw a man moving into the apartment. She testified that the man confirmed that he was moving in. Ms. Blay stated she took a photograph of the mailbox with the new tenant's name on it. She did not introduce the photograph into evidence, although it is included in the appendix on appeal.

Plaintiff contended that the new tenant paid a deposit for the apartment in April, but did not start his lease until June 1. He asserted the new tenant often visited the apartment to monitor plaintiff's preparations for the new tenancy. Plaintiff did not provide a responsive answer when the judge asked plaintiff when he gave keys to the new tenant, nor did plaintiff bring to trial a copy of the new tenant's lease.

The judge found that plaintiff mitigated damages by reletting the apartment one month before the expiration of the Blays' lease. He found that defendants failed to prove that the new tenant moved in earlier than June 1. Therefore, the court found that plaintiff was entitled to $2200 in rent for April and May, plus $110 late fees under the lease, and other costs, for a total of $2391. After applying the security deposit, plus $2 interest, the court entered judgment for $1289.

After the judge announced his decision, Ms. Blay requested another court date, at which she proposed to secure the presence of the new tenant. The judge denied the request, stating that defendants were required to have their witnesses and proofs ready on the day scheduled. The court also stated that there was no showing as to what the tenant would say if called.

On appeal, the Blays contend the judgment should be reversed because plaintiff failed to present a copy of the new tenant's lease, and the court should have continued the trial to allow them to subpoena the new tenant.

The fact-findings of the trial court sitting without a jury are "considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). We will not disturb the court's findings "unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice[.]" Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011) (internal quotation marks and citation omitted). However, we review the court's legal determinations de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Applying these principles, we discern an insufficient basis to disturb the trial court's determination that plaintiff did not relet the apartment until June 1, 2015. A landlord bears the burden to demonstrate he diligently attempted to relet premises in an action to recover damages after a tenant has abandoned residential premises. Sommer v. Kridel, 74 N.J. 446, 457 (1977). In this case, the breaching tenants do not contend that the landlord failed to mitigate. Rather, they contend the landlord mitigated more than he admitted.

Had plaintiff presented the new tenant's lease, he would have bolstered his contention that the new tenancy began June 1, 2015. However, no particular item of evidence is required to satisfy plaintiff's burden. The judge found credible plaintiff's testimony that the new tenant began his lease term June 1, 2015. We must defer to the trial court's credibility determination, which provides a sufficient basis for the court's fact finding.

Turning to the second issue on appeal, a request for an adjournment "is addressed to the trial judge's discretion. . . ." Kosmowski v. Atlantic City Med. Ctr., 175 N.J. 568, 575 (2003). An abuse of discretion occurs when the trial judge's decision was "made without rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." United States v. Scurry, 193 N.J. 492, 504 (2008) (internal quotation marks and citation omitted).

We discern no abuse of discretion here. First, the Blays did not request an adjournment until after the court had already rendered its decision. Second, they presented no excuse for why they had not secured the tenant's presence on the day scheduled for trial. Third, there was no proffer that the tenant would support the Blays' contentions.

Affirmed.