NOT FOR PUBLICATION WITHOUT THE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
DOCKET NO. A-1917-17T2
INGRID VALDIVIA and
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
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.