Annotate this Case
                               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-1917-17T2






                    Submitted October 18, 2018 – Decided February 28, 2019

                    Before Judges O'Connor and DeAlmeida.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Bergen County, Docket DC-011047-16.

                    John DeRaffele, appellant pro se.

                    Respondents have not filed briefs.


          Defendant John DeRaffele appeals from the September 12, 2017 judgment

of the Special Civil Part awarding plaintiffs Ingrid Valdivia and Dino Valdivia
double a portion of their security deposit on a residential lease, damages

associated with having to temporarily vacate their home, attorney's fees, and

costs. We reverse and remand for a new trial.


      The following facts are derived from the record. DeRaffele owns a one-

family house in Bergen County. Plaintiffs began a month-to-month tenancy at

the house on April 1, 2015. The parties' lease set rent at $1500 a month, to be

paid on the first of the month, and required a $1500 security deposit. The lease

provided that plaintiffs were responsible for utilities and required thirty-days'

notice to terminate the tenancy. Plaintiffs were subject to a $1500 re-rent levy

in the event they vacated the premises prior to the natural expiration of the lease.

      According to DeRaffele, in early January 2016, plaintiffs expressed their

desire to terminate the lease because they could not afford to pay for utilities.

However, they did not provide notice of termination of the lease, did not vacate

the premises, and did not pay rent on January 1, 2016. DeRaffele thereafter

served a notice to cure and three-day rent demand on plaintiffs, ultimately

resulting in their paying the January 1, 2016 rent.

      Plaintiffs also did not pay the rent due on February 1, 2016. As a result,

on February 12, 2016, DeRaffele served a notice to cure and three-day rent

demand on plaintiffs. Two days later, on February 14, 2016, the heating system

in the home malfunctioned, causing a gas leak. Plaintiffs left the apartment

when instructed to do so by police.         Because of cold temperatures, the

municipality paid for plaintiffs to stay at a hotel. DeRaffele had the heater

replaced by a maintenance contractor the following day, February 15, 2016.

      According to Francisco Martinez, a handyman present in the home on

February 15, 2016, the heater could not be repaired because it had been tampered

with. Martinez purchased a new heater, and brought it to the home, where Dino 1

let him and a contractor enter the house. The contractor installed the new heater.

Martinez testified that once the replacement heater was installed and operating,

he and Dino walked through each room of the house to ensure that the heat was

on. Martinez used a thermometer to record a temperature of sixty-eight degrees.

      Although aware that the heating system had been replaced, plaintiffs did

not return to the house and instead stayed in the hotel paid for by the

municipality for two weeks.      DeRaffele testified that he was unaware that

plaintiffs refused to return to the house.    On or about February 19, 2016,

DeRaffele initiated eviction proceedings against plaintiffs for failure to pay the

   We use first names because plaintiffs share the same surname. No disrespect
is intended.
                                         3 February 2016 rent.      Ingrid testified that on February 19, 2016, she sent

DeRaffele a text demanding the return of her security deposit, and told him in a

telephone conversation that the couple was vacating the house.

        Plaintiffs claim that once the two-week hotel stay at municipal expense

ended, they moved first to a hotel they paid for, and, later to the home of a family

member. They did not produce evidence proving that they paid for a hotel room

after they left the residence. Ingrid testified that she returned to the house once

after February 14, 2016, to retrieve her clothing.       The record contains no

evidence with respect to when Dino's clothing was retrieved, or when the couple

removed their furniture and possessions from the house.

        Plaintiffs rented a new apartment on March 15, 2016. According to

DeRaffele, plaintiffs did not vacate his property until March 22 or 23, 2016.

Shortly before a scheduled March 22, 2016 hearing on the eviction proceedings,

plaintiffs paid the February 2016 rent.

        Plaintiffs also failed to pay the rent due on March 1, 2016. DeRaffele

attempted to collect the March 2016 rent at the March 22, 2016 hearing. His

demand was denied because he did not include the amount of rent due for March

2016 in his pleadings. The record indicates plaintiffs never paid the March 2016


      On August 16, 2016, plaintiffs filed a complaint in the Special Civil Part

alleging they were constructively evicted from the home on February 14, 2016.

They sought $9000 in relocation damages, equal to six months' rent, see  N.J.S.A.

2A:18-61.1h(a), double what they allege was their unlawfully withheld security

deposit, see  N.J.S.A. 46:8-21.1, rent abatement for half of February 2016, $4500

in attorney's fees, interest, and court costs. DeRaffele filed an answer and

counterclaim, alleging plaintiffs did not vacate the apartment until March 22 or

23, 2016, and, therefore, owed the $1500 rent due on March 1, 2016, and that

he was entitled to retain plaintiffs' security deposit, and to an award of additional

damages, to repair damage done to the property by plaintiffs.

      The matter was tried without a jury on September 12, 2017. DeRaffele,

Ingrid, and Martinez testified. There is a significant gap in the trial transcript.

After both parties presented their cases-in-chief, plaintiffs recalled Ingrid on

rebuttal.   Shortly after the start of Ingrid's testimony, the transcript reads

"[r]ecord abruptly stops at 12:21:54, resumes at 2:02:01." The next entry in the

transcript is the court stating, "[t]hat's all the testimony in the matter. Mr.

DeRaffele, you want to make any closing statement?"              Plaintiffs' closing

statement refers to testimony by Ingrid not reflected in the transcript.            In

addition, the transcript provided in the record is missing two pages.2 After the

appeal was filed, no party moved to reconstruct the record. See R. 2:5-3(f).

      The court issued an oral opinion shortly after the conclusion of the trial.

The court concluded that plaintiffs were not entitled to relocation damages

pursuant to  N.J.S.A. 2A:18-61.1h(a) because they did not prove that the subject

property was uninhabitable. The court also rejected plaintiffs' claim that they

were entitled to damages because the property was not registered with the


      The court awarded plaintiffs $500 for expenses associated with having

temporarily moved from the house on February 14 and 15, 2016. Although

acknowledging that plaintiffs produced no evidence of personal expenses, and

recognizing that the municipality paid for their hotel room for those days, the

court determined that the damages were warranted for "gasoline and travel."

      With respect to plaintiffs' security deposit, the court disallowed all offsets

claimed by DeRaffele for damages, except for $225 for "general cleanup,"

clearing the yard, and shampooing the rugs. The court awarded plaintiffs $2550,

  Although DeRaffele argues that there are several gaps in the transcript, we
note that one such "gap" was merely a pause in the recording.

representing twice the remaining $1275 of the security deposit. Finally, the

court awarded plaintiffs $850 in attorney's fees, plus court costs. The court

entered a judgment in favor of plaintiffs for $3800, plus costs.3

      This appeal followed. DeRaffele argues that the trial court erred by not

addressing plaintiffs' obligation to pay rent for March 2016, and their failure to

provide notice of termination of the lease. In addition, he argues that the award

of $500 for expenses relating to plaintiffs leaving the house on February 14 and

15, 2016, was not supported by evidence of actual costs incurred by plaintiffs,

that the court erred in denying further offsets to the security deposit, and that an

award of attorney's fees was not warranted. He also argues that the gap in the

trial transcript makes appellate review of the trial court's decision impossible.


      Our scope of review of the judge's findings in this nonjury trial is limited.

We must defer to the judge's factual determinations, so long as they are

supported by substantial credible evidence in the record. Rova Farms Resort,

Inc. v. Inv'rs Ins. Co. of Am.,  65 N.J. 474, 483-84 (1974).            This court's

"[a]ppellate review does not consist of weighing evidence anew and making

  We note an error in the court's calculation of damages. The damages awarded
to plaintiffs, $500, $2550, and $850 equals $3900, not $3800.
independent factual findings; rather, [this court's] function is to determine

whether there is adequate evidence to support the judgment rendered at trial."

Cannuscio v. Claridge Hotel & Casino,  319 N.J. Super. 342, 347 (App. Div.


      In light of the significant gap in the trial transcript, we are unable to

determine if the trial court's findings of fact are supported by substantial credible

evidence in the record.      "Without a reasonably complete transcript of the

evidentiary hearing, we are unable to make a confident ruling concerning the

legal rights of the parties, which are unavoidably linked to factual elements of

the case." Ryan v. Brown,  279 N.J. Super. 648, 651 (App. Div. 1995). "The

absence of a verbatim record does not render a trial unfair; it merely raises a

question concerning fairness that must be addressed." State v. Izaguirre,  272 N.J. Super. 51, 56 (1994) (finding that reconstruction of the record is required

if necessary for fairness). Here, more than an hour and forty minutes of a one-

day trial was not recorded. The transcript stops abruptly in the midst of the

rebuttal testimony of plaintiffs' only witness and picks up with an observation

by the court that the trial testimony has concluded. The gap in the transcript is

too large to overlook, particularly in light of DeRaffele's argument that the trial

court made factual determinations unsupported by evidence.

      Generally, in these circumstances we remand the matter for reconstruction

of the missing portion of the record. Where the electronically taped recording

of a trial was not made "it becomes the duty of the trial court as a matter of due

process entitlement of the parties to reconstruct the record in a manner that,

considering the actual circumstances, provides reasonable assurances of

accuracy and completeness." Id. at 57; see also Rule 2:5-3(f) ("If a verbatim

record made of the proceedings has been lost, destroyed or is otherwise

unavailable, the court or agency from which the appeal was taken shall supervise

the reconstruction of the record"). For the following reasons, however, we elect

to remand the matter for a new trial.

      First, it is our understanding that the judge who tried this matter has

retired. Reconstructing the record undoubtedly would be significantly hampered

without the assistance of the trial judge. We also note that the attorney who

represented plaintiffs in the trial court has not participated in this appeal. It is

not known if he is available to assist in the reconstruction of the record.

      Second, this matter was tried on September 12, 2017, almost a year and a

half ago. The passage of time, combined with the absence of the trial judge,

would exacerbate the difficulties in reconstructing the record.

      Third, and most notably, the trial court made no finding of fact with

respect to when plaintiffs vacated DeRaffele's property. There is considerable

evidence in the portions of the record available to us that plaintiffs remained at

the property after March 1, 2016. DeRaffele testified plaintiffs did not vacate

the premises until March 22 or 23, 2016. In addition, Ingrid testified that she

returned to the property for her clothes once after February 14, 2016, and

plaintiffs' counsel mentioned several visits by plaintiffs after that date in his

closing statement. We discern from the portions of the transcript available to us

no testimony with respect to when Dino's clothing or the couple's furniture and

other possessions were removed from the home. If plaintiffs had clothing,

furniture, or possessions in the house on or after March 1, 2016, DeRaffele

would be entitled to $1500 rent for that month.        In addition, if plaintiffs

abandoned the property without providing the notice required by the lease,

DeRaffele may be entitled to damages, and may have lawfully retained plaintiffs'

security deposit. See Lorril Co. v. La Corte,  352 N.J. Super. 433, 442 (App.

Div. 2002) (holding that when rent owed exceeded the security deposit, landlord

did not wrongfully withhold security deposit).

      Reversed and remanded for further proceedings consistent with this

opinion. We do not retain jurisdiction.


This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.