JOSE ROSARIO v. SAE KIM

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.



                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-5475-15T4

JOSE ROSARIO and ITALIA
VIGNIERI,

        Plaintiffs-Respondents,

v.

SAE KIM,

     Defendant-Appellant.
_____________________________

              Argued November 28, 2017 – Decided March 9, 2018

              Before Judges Sumners and Moynihan.

              On appeal from Superior Court of New Jersey,
              Law Division, Bergen County, Docket No.
              L-6080-15.

              Bruce D. Nimensky argued the cause for
              appellant (Gray Law Group, attorneys; Bruce
              D. Nimensky, on the brief).

              Carolina Calderon         argued     the    cause    for
              respondents.

PER CURIAM

        Defendant, plaintiffs' landlord, appeals from a judgment –

entered after a bench trial – awarding the plaintiff-tenants

$6564.43, plus attorneys' fees, based on their claim defendant

breached the implied warranty of habitability for failing to
provide adequate heat to the condominium unit they rented for a

two-year term, commencing April 15, 2014, at a monthly rental of

$2800.   Defendant contends:

          POINT III

          THE FACTUAL FINDINGS OF THE TRIAL COURT ARE
          UNSUPPORTED [BY] AND INCONSISTENT WITH THE
          EVIDENCE IN THE CASE BELOW.

               A. NOTICE

                  (I) NOTICE OF DRAFTY WINDOWS

                  (II) NOTICE THAT THE HEATING UNITS "DO
                  NOT WORK VERY WELL"

                  (III) THE APRIL 7, 2015 NOTICE

               B. FAULTY HEATING SYSTEM

                  (I) THE ORIGINAL FOUR HEATING UNITS

                  (II) THE FOUR NEW HEATING UNITS

               C. THE UTILITY BILLS

               D. WINDOWS

                  (I) DEFENDANT ADDRESSED THE "PROBLEM"
                  WITH THE WINDOWS

                  (II) BEFORE AND AFTER THE HEATING
                  UNITS WERE REPLACED THE PREMISES
                  MAINTAINED SUFFICIENT HEAT TO WARM THE
                  PREMISES

          POINT IV

          THE COURT BELOW ERRED IN NOT FINDING THAT THE
          PLAINTIFFS' FAILURE TO USE THE HEATERS
          CONSTITUTED A WAIVER OF THE ALLEGED "DEFECT"
          AND ESTOPPED THE PLAINTIFFS FROM COMPLAINING.



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           POINT V

           THE COURT BELOW ERRED IN FINDING AS A MATTER
           OF LAW THAT THE PREMISES WERE UNINHABITABLE.

           POINT VI

           THE COURT BELOW ERRED IN FINDING THAT THE
           DEFENDANT AND THE PLAINTIFFS HAD MUTUALLY
           AGREED TO AN EARLY TERMINATION OF THE LEASE
           AND A RELEASE OF THE PLAINTIFF[S'] OBLIGATION
           TO PAY RENT.

           POINT VII

           THE COURT BELOW ERRED IN FINDING THAT
           PLAINTIFFS WERE ENTITLED TO LEGAL FEES AND
           ERRED DENYING THE DEFENDANT THE RECOVERY OF
           HIS LEGAL FEES.

           POINT VIII

           THE COURT ERRED IN ITS CALCULATION OF THE
           DAMAGES AWARDED TO THE PLAINTIFF[S]; DEFENDANT
           SHOULD BE AWARDED LEGAL FEES PURSUANT TO
           [RULE] 4:58-1 (OFFER OF JUDGMENT).

Although we affirm the judge's finding that defendant breached the

warranty of habitability, we remand the case for further findings

of fact and recalculation of damages.

     The scope of our review of a non-jury case is limited.

Seidman v. Clifton Sav. Bank, S.L.A., 
205 N.J. 150, 169 (2011).

The trial judge's findings will "not be disturbed unless 'they are

so wholly insupportable as to result in a denial of justice.'"

Campione v. Soden, 
150 N.J. 163, 188 (1997) (quoting Rova Farms

Resort, Inc. v. Inv'rs Ins. Co. of Am., 
65 N.J. 474, 483-84

(1974)).    On the other hand, questions of law and the legal

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consequences that flow from established facts are subject to de

novo review.   Manalapan Realty, LP v. Twp. Comm. of Manalapan, 
140 N.J. 366, 378 (1995).

     In Marini v. Ireland, 
56 N.J. 130, 144 (1970), our Supreme

Court held all residential leases contain an implied covenant or

warranty of habitability.      A tenant may initiate an action to

recover part or all of the rent paid to his landlord "where he

alleges that the [landlord] has broken his [or her] covenant to

maintain the premises in a habitable condition."         Berzito v.

Gambino, 
63 N.J. 460, 469 (1973).       In order to succeed on the

claim, "[t]he condition complained of must be such as truly to

render the premises uninhabitable in the eyes of a reasonable

person."   Ibid.   "At a minimum, the necessities of a habitable

residence include sufficient heat and ventilation, adequate light,

plumbing and sanitation and proper security and maintenance."

Trentacost v. Brussel, 
82 N.J. 214, 225 (1980).    However, a tenant

must also provide his landlord with notice and sufficient time to

effectuate repairs.     Berzito, 
63 N.J. at 469.

     We affirm the trial judge's finding that defendant breached

the implied warranty of habitability substantially for the reasons

set forth by the trial judge in his written opinion attached as a

rider to the judge's order of July 6, 2016.    The judge found from

testimony of plaintiffs and their witnesses – which he deemed to

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be credible – "that there were significant problems with the heat

and windows of the [a]partment which caused the [a]partment to be

excessively cold during [the] fall/winter months (October 2014

through April 2015)."       He concluded from the evidence that the

apartment's "faulty windows caus[ed] air leaks and that the heating

unit fixtures (prior to replacement by the [d]efendant) failed to

function   adequately,"     and   that   "the   heating    units    could   not

adequately maintain a reasonable temperature in the [a]partment."

The judge found that, even after the units were replaced,

           there clearly was a problem with the windows
           which was never addressed as all witnesses
           seem   to  acknowledge   during   the   trial.
           Furthermore the heating units were not
           replaced until sometime in February 2016.
           Even once the heating units were replaced, the
           credible evidence presented reveals that the
           problems with the windows continued to greatly
           impact the ability for the [a]partment to
           retain heat during the winter months.

These findings, largely the product of the judge's credibility

determination, are supported by the evidence and require our

deference.     The fact that some heat was supplied does not, as

defendant now argues, mean that adequate heat was provided.                 The

judge properly found the proofs – which included the extreme

conditions   endured   by   plaintiffs     –    showed   the   apartment    was

"uninhabitable in the eyes of a reasonable person."                Berzito, 
63 N.J. at 469.


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      We do not agree, however, with the judge's finding that

plaintiffs' notice of the defects to defendant warranted an award

of damages from October 2014 through April 2015.             The judge found

six   documents    entered   into   evidence1      "identifie[d]    that    the

[p]lantiffs . . . properly provided notice to the [l]andlord of

the   various     alleged    breaches       of   the   implied   warranty    of

habitability and breach of the applicable terms of the [l]ease."

A review of those documents reveals the earliest notice given was

January 8, 2015.2      In calculating damages – including the rent

abatement and reimbursement for utility bills – the judge did not

consider the date the tenant provided notice or account for a

"reasonable period of time to effect the repair[s]."              Berzito, 
63 N.J. at 469.    We are therefore compelled to remand the case to the

trial judge for a calculation of damages considering the date the

landlord received notice, and the time it took to install the

units; we do not compel the judge to find that the time to effect

the repairs be taken into account – only to address the issue.

His findings regarding the habitability of the apartment after the



1
  The documents included a series of text messages and letters
exchanged between plaintiff and defendant's intermediaries from
January to April 2015.
2
 Defendant testified that his agent notified him in late December
that plaintiffs complained about the units, but the judge did not
rely on this testimony when he made his findings.

                                        6                             A-5475-15T4
installation may impact his conclusions.                      And we stress our

affirmance of the methodology the judge used to calculate the rent

abatement.   A trial judge's determination on rent abatement "is a

factual finding and will be affirmed if supported by credible

evidence in [the] record."         C.F. Seabrook Co. v. Beck, 
174 N.J.

Super. 577, 596 (App. Div. 1980).

      We determine defendant's argument that the judge erred in

awarding attorneys' fees to plaintiff and denying same to him to

be without sufficient merit to warrant discussion in this opinion.

R. 2:11-3(e)(1)(E).        The judge's finding that defendant breached

the habitability warranty justified the award.

      The remedies afforded to a tenant for a landlord's breach of

the warranty of habitability include rent abatement, Berzito, 
63 N.J. at 469, and a deduction of self-help repairs, Marini, 
56 N.J.

at 146.   The trial judge correctly awarded the costs of materials

–   including     heaters,    insulation       and     drapes    –   purchased     by

plaintiffs   in    their     self-help       attempt    to    make   the   premises

habitable; in that defendant offered no proof of those items'

residual value – retained by plaintiffs – the full cost was the

proper measure of damages.        There was no authority, however, for

the reimbursement of excess utility bills.                   The judge could have

further abated the rent because of the costs plaintiffs incurred



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trying to heat the apartment.        But the judge erred in awarding a

percentage of the utility costs.

      Defendant's    argument   that      plaintiffs     waived     the    defect

because they caused the apartment "to be cold" by only utilizing

the heaters for three to four hours each night was advanced to the

trial judge in a motion for a directed verdict at the conclusion

of   plaintiffs'    case.     The   judge    denied    that   motion      without

prejudice, and without explanation "subject to renewal at the end

of the case."      The motion was never renewed; defendant's counsel

asked the judge only to "consider what [he] said about the motion

as part of [his] closing."          Inasmuch as we are remanding this

matter,   the   judge   can   set   forth    his   findings    of    facts     and

conclusions of law in compliance with Rule 1:7-4(a).

      We reject defendant's contention that the trial judge erred

in ruling the parties agreed to a mutual termination of the lease

for the reasons set forth by the trial judge in his written opinion

denying defendant's counterclaim.           The judge found defendant did

not meet his burden of proof when he claimed he was unable to re-

rent the apartment because plaintiffs stayed in tenancy beyond the

agreed-to July 31, 2015 termination date.             Those findings are not

"so wholly insupportable as to result in a denial of justice" and

we leave them undisturbed.      Rova Farms, 
65 N.J. at 483-84 (quoting



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Greenfield v. Dusseault, 
60 N.J. Super. 436, 444 (App. Div.),

aff'd o.b., 
33 N.J. 78 (1960)).

     Because on remand the trial judge will have to recalculate

damages, we leave any issue regarding defendant's offer of judgment

to the judge.

     Affirmed   in   part   and   remanded   for   further   proceedings

consistent with this opinion.      We do not retain jurisdiction.




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