July 19, 2014

Hoboken Rent Control Case I was involved in that went to the Appellate Court of New Jersey

I represent both sides in Hoboken Rent Control disputes.

Many condominium purchasers do not realize that their unit may be subject to rent control.  If you are buying a condo in Hoboken that was not built prior to 1986 it may be controlled by the Hoboken Rent Control Laws.   

Opinion

PER CURIAM

Plaintiff Constance De Sena appeals the order of the Law Division dismissing her action in lieu of prerogative writs against the Rent Leveling and Stabilization Board of the City of Hoboken (the Board) and E. Thomas Lundgren and Pichu Yeh Lundgren (landlord), the owners of the residential property in which she rented an apartment. This case arises from the landlord's application to raise plaintiff's rent commensurate with increases in municipal property taxes over a specified period of years. This method of calculating rent increases is permitted under the Hoboken Rent Leveling Ordinance as a tax surcharge.

Suzanne Hetman, the Hoboken Rent Regulation Officer (RRO), approved the landlord's tax surcharge application on August 14, 2012, resulting in a net increase of $161 in plaintiff's monthly rent. Plaintiff appealed the RRO's determination to the Board. Of the five Board members present, two voted to overturn the RRO's determination approving the tax surcharge increase, two members voted to uphold the RRO's determination, and one member abstained. Based on the advice of counsel, the Board concluded that a tie vote was legally insufficient to overturn the presumptively valid determination of the RRO. Stated differently, as the party seeking to overturn the RRO's determination, plaintiff failed to persuade a majority of the members of the Board that the decision by the RRO to grant a tax surcharge in this case was erroneous or arbitrary, capricious and unreasonable.

As provided in Rule 4:69–1, plaintiff filed an action in lieu of prerogative writs in the Superior Court seeking to overturn the Board's ruling. After considering the record developed before the Board and the arguments of counsel, Judge Barry P. Sarkisian upheld the Board's decision that a tied vote was legally insufficient to overturn the RRO's presumptively valid determination. Judge Sarkisian explained his decision in a memorandum of opinion dated June 18, 2013.

On appeal to this court, plaintiff argues (1) the Board did not authorize the method of calculation used by the RRO in determining the tax surcharge; (2) the RRO's interpretation and application of the tax surcharge provision of the ordinance was contrary to the intent and purpose of the ordinance; and (3) the Board's tied vote should be deemed as a disapproval of the RRO's determination. In response, the Board argues the RRO properly applied the tax surcharge provision in the rent control ordinance to grant the landlord's application to increase plaintiff's rent. The Board also urges us to uphold the trial court's legal determination that in reviewing the determinations of the RRO, a tied vote of the Board leaves the RRO's determination undisturbed because those seeking to overturn or modify the RRO's decision have the burden to demonstrate the decision was erroneous or arbitrary, capricious and unreasonable.

After reviewing the record before us, we discern no legal merit in plaintiff's arguments and affirm substantially for the reasons expressed by Judge Sarkisian in his memorandum of opinion. In the interest of clarity, we will briefly describe the salient facts that informed Judge Sarkisian's legal analysis and ultimate conclusion.

I

Plaintiff leased the apartment at issue here on September 12, 2010. The property is a three-family building that the landlord has owned since 1992. On July 26, 2012, less than two years after the commencement of the lease, the landlord filed an application with the Hoboken Rent Leveling and Stabilization Office seeking approval for a tax surcharge. Section 155–6 of Hoboken's rent control ordinance provides:

A landlord may seek a tax surcharge from a tenant because of an increase in municipal property taxes if said taxes are in excess of those assessed for the 1988 tax year. The rental increase permitted for taxes is determined by the Rent Regulation Officer pursuant to a formula approved by the Rent Control Board. The rent increase for taxes that each tenant is liable to pay shall be paid in 12 equal monthly payments, 1/12 each month. The surcharge shall not be considered rent for purposes of computing cost-of-living rental increases. Determinations under this section shall be made by the Rent Regulation Officer.

[Hoboken N.J. Municipal Code § 155–6.]

Based on the information provided by the landlord, the RRO applied the standard described in Section 155–6 and approved the application on August 14, 2012, according to the following calculation:

Total Number of Units: 3 Difference: $5,8031

Base Tax: $3,199 Monthly Differential: $484

Current Tax: $9,002 Unit Surcharge: $161

Plaintiff appealed the RRO's determination to the Board. The matter was heard by the Board on November 14, 2012. As the minutes of the hearing before the Board reflect, plaintiff's counsel, who is also her father, argued plaintiff should not be held liable for twenty-four years of tax increases because she had only been a tenant at this property since 2010.

Plaintiff also noted that the landlord had received a hardship rent increase in 1992 and vacancy decontrols in 1993, 1996, and 2002. According to plaintiff, these increases should have been considered in determining whether the landlord was entitled to yet another increase in the form of a tax surcharge. In response, the RRO indicated that increases in rent based on the hardship provisions of the ordinance permanently increase the base rent of the apartment. By contrast, a tax surcharge does not become part of the base rent, and is not considered in calculating ordinary annual cost of living increases. Finally, in response to a Board member's question as to the method used to grant this application, the RRO emphasized: “This is how the office has been doing tax surcharge calculations going back to when it was 1988.”

As framed by plaintiff's argument, the discussion among the Board members centered around the fairness of passing along twenty-four years of tax increases to a tenant who had only occupied her apartment for the last two years. Two members argued approving this kind of tax surcharge was both unfair and contrary to the ordinance's core purpose of protecting tenants from unreasonable increases in rent. Other members disagreed, arguing that denying the tax surcharge would harm landlords. These members noted that denying the increase would be akin to amending the plain language of the tax surcharge provisions, a power exclusively reserved to the City Council.

At the conclusion of this debate, a Board member moved to table the discussion to permit the Board to obtain additional information on a host of issues related to the hardship increase provision and resolutions concerning tax surcharge applications. The motion failed to gain a majority of the votes cast, with two members voting “no,” two members voting “yes,” and one member “abstaining.” One of the members who had voted “no” on the motion to table thereafter moved to approve the decision of the RRO granting the tax surcharge. Again the motion failed to carry a majority of the votes cast, with two members voting “no,” two members voting “yes,” and one member “abstaining.”2

Plaintiff filed an action in lieu of prerogative writs, which Judge Sarkisian decided in favor of the Board. Specifically, Judge Sarkisian found plaintiff did not demonstrate to a majority of the members of the Board that the RRO's approval of the tax surcharge was erroneous or arbitrary and capricious. We agree.

As the party seeking to overturn the decision of the municipal officer, plaintiff has the “burden” to “demonstrate that the Officer's determination was in error or arbitrary, capricious and unreasonable.” Hoboken N.J. Municipal Code § 155–23. When the trial court reviews a discretionary decision of a municipal agency, it must start by recognizing that the Legislature has vested the municipality with discretion to make the decision involved. Booth v. Bd. of Adj. of Rockaway, 50 N.J. 302, 306 (1967).

A rebuttable presumption arises that the municipality has properly exercised its discretion. Harvard Enter's, Inc. v. Bd. of Adj. of Twp. of Madison, 56 N.J. 362, 368 (1970). The trial court may not substitute its judgment for that of the municipal body. The party appealing the decision must prove that the board's action was arbitrary, unreasonable or capricious. Ibid. We use the same standard of review regarding decisions made by the trial court.

We owe no deference, however, in cases where the municipal body has merely interpreted an ordinance. Cherney v. Zoning Bd. of Adj. of Matawan Borough, 221 N.J.Super. 141, 144–45 (App.Div.1987). Our review of a municipal body's interpretation of an ordinance is plenary. Osaria v. W. New York Rent Control Bd., 410 N.J.Super. 437, 443 (App.Div.2009). Our legal analysis may take us in any direction we deem appropriate under law, and our ultimate conclusion is limited only by how we apply the law to the facts before us. Ibid.

Here, the trial court correctly reviewed the Board's decision according to an arbitrary, capricious or unreasonable standard. Relying on our holding and analysis in Columbro v. Lebanon Twp. Zoning Bd. of Adjustment, 424 N.J.Super. 501, 508–09 (App.Div.2012), Judge Sarkisian correctly noted “that the interpretation of an ordinance is primarily a question of law that is subject to de novo review.” Under the internal appellate review established by the Hoboken City Council, a party seeking to overturn a decision made by the RRO has the burden to “demonstrate that the Officer's determination was in error or arbitrary, capricious and unreasonable.” Hoboken N.J. Municipal Code § 155–23.

The record shows plaintiff failed to satisfy this burden. Albeit, the motion before the Board was worded “to approve” the decision of the RRO. That motion failed to pass. However, the record clearly shows that the Board thereafter considered the matter closed. Thus, despite the anomalous manner by which the issue was presented, plaintiff did not demonstrate to a majority of the members present that the RRO's approval of the landlord's tax surcharge application “was in error or arbitrary, capricious and unreasonable.” Ibid.

We are in complete agreement with Judge Sarkisian on this issue. The plain text of the Hoboken Municipal Code supports the RRO's approval of the tax surcharge and the legal conclusion that plaintiff did not carry her burden of proof. We incorporate by reference the remaining parts of Judge Sarkisian's analysis as reflected in his memorandum of opinion. The balance of plaintiff's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11–3(e)(1)(E).

Affirmed.

Footnotes

1

As provided in Section 155–6, the RRO used the base-year 1988 and the application year 2011 to determine the increase in municipal property taxes that occurred during this twenty-four year period. Plaintiff has not challenged the manner or mathematical calculations performed by the RRO to reach the tax surcharge figure of $161 per month.

2

The record reflects one member as “absent.

The Marciano Law Firm, attorneys for respondents E. Thomas Lundgren and Pichu Yeh Lundgren, join in the brief of respondent The Rent Leveling and Stabilization Board of the City of Hoboken.

June 30, 2013

One Mom, 4 Dads, Sean Astin’s pretty amazing family.

June 27, is Helen Keller day, and I just happened to watch “A Miracle Worker” on TV, which is a great, great movie about how Helen Keller was taught to understand the world by her teacher Ann Sullivan.  Well, the part of Helen Keller was played by Patty Duke and she played such a great part that I looked her up on good ol’ Google and come across another true family tale. 

‘A family law attorney sees and hears a lot of what might be called “ inconvenient truths”  but increasingly our culture, is more and more accepting of the truth.  What was scandalous years ago, is pretty much accepted, except for of course some people who don’t understand that there is no standard, average perfect family, and how  it’s the imperfections that we must all come to love and accept.

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Sean Astin's Childhood With Patty Duke

In The Lord of the Rings he cheated death, fought enemies and helped bring a gold ring to its destruction. But before taking on the role as Frodo's trusted sidekick, Sean Astin survived a struggle of a far more personal sort.

The rising star endured a childhood on the edge of destruction.

He grew up as the child of two Hollywood stars: Oscar winner Patty Duke who gets a star on the Hollywood Walk of Fame this month, and actor John Astin, who played The Addams Family patriarch Gomez. But his home life included Duke's battle with manic depression — and the shocking news that Astin was not his real father.

When he was 14, his mother told him that John Astin was not his biological father.Instead, she explained, he was born when she was 23 and single, after she had a scandalous affair with Desi Arnaz Jr., who was only 17. His mother, Lucille Ball, disapproved of the relationship and the tabloids seized the story.

"It was a horror," said Duke, who as a teenager had played a chaste young lady on The Patty Duke Show. "I was little Patty Duke who came into the living rooms on Wednesday nights."

When a stranger named Michael Tell came to sublet her apartment and offered to marry her as a way out of the scandal, Duke agreed. The marriage lasted only 13 days, and ended long before Sean was born.

After his mother told Astin that Arnaz was his father, the two developed a relationship, but in his mid-20s he met a relative of Michael Tell who suggested they were related. Sean set out to find his own truth about his biological father, hoping that genetic tests would prove it beyond doubt.

The tests had a surprising outcome: they showed that Tell was Sean's father.

"Desi Arnaz Jr. loves me, and I love him. We are so close," Sean says. "Science tells me … that he's not my biological father. Science tells me that Mike Tell is."

Sean considers John Astin his father, since he was raised by the actor. But he also maintains relationships with all three men in question, and his step-father, Mike Pearce, who married Duke in 1986.

"I can call any of them on the phone any time I want to," says Sean. "John, Desi, Mike or Papa Mike … my four dads."

His mother prefers to believe that Arnaz is Sean's biological father, in spite of the blood tests. So mother and son have agreed to disagree, and seem closer and more connected than ever.

"I think how we have survived it is that we are people who believe in forgiveness, and moving on," said Duke.

"Well, I don't think there's anything that much to forgive," said Astin. "I mean, not to me."

Duke says she is tremendously proud of her son's acting career. But she's most proud of his real-life character as he overcame a troubled childhood to become a mature adult. "He is at the core the decent, generous, loving, respectful man that I hoped he would be," she said.

She continues to work as an actress, most recently filming a series of mysteries for the Hallmark Channel which premieres Sept. 5.

In the end, the showbiz family is not so different from many others, with fights and forgiveness, illness and health, and ultimately enough love to survive it all.

"What I love the most about my mother is that she's a survivor. She wants to live. She's here. Because she wants to be," said Astin. "That's a good thing."

March 27, 2013

Train your Inner Dog with Good Karma Training

 

Just helped out a new business woman in Jersey City /Hoboken with a dog training business, Steph is great with Dogs and Roxy is already doing all sorts of polite things !!!!! The world needs good dogs, give Steph a try, especially those barking dogs in your apartment.

http://goodkarmatraining.com/

 

SPATIAL, VERBAL, AND PHYSICAL PRESSURE

My method of training is known as balanced training. The fundamental principle of dog training is pressure on, pressure off. Pressure can be spacial, verbal, and/or physical.

Spatial pressure is when you position your body strategically to claim space. I use spatial pressure to communicate as well as guide the dog into completing a command. There is a difference between intimidation and guidance. The idea when using spatial pressure is to keep the dog engaged in training, not scare the dog into compliance. Depending upon the personality of a dog, this can be a delicate balance, but I am happy to show you how this technique can be used safely and effectively when training your dog.

Verbal pressure is when you use the correction word “no.” Typically, as the training progresses into advanced obedience, you will be able to say “no” and have your dog respond without having to use either physical, or even spacial pressure.

Physical pressure is any kind of physical connection made between the handler and the dog. This can range from a correction with the training collar, to being distracted by receiving affection while in a down/stay.

During our training sessions together, you will learn how and when to apply pressure, and when to release pressure in order to achieve results. Our goal is to correct bad behavior and to train your dog impulse control. In short, I will show you and your dog how to calmly make better choices. I believe it is important to always correct bad behavior the instant it occurs. Dogs exist in the present moment, they require us to exist in the present with them. The virtue of correcting instantly is to prevent your dog from intensely acting out either by barking, lunging, growling, whining, etc. By consistently applying pressure, and releasing when better behavior is presented, your dog will learn to calmly make better choices. When you correct the subtle bad behavior, you will avoid having to be challenged with much more dramatic bad behavior.

November 24, 2012

Hoboken311 City Government is Computer Cool and Super Useful

ScreenClip

They say you learn new things everyday.  Well as a long time Hoboken resident and Attorney I thought I knew about most things the City Government did.    But there is always something new to learn and that is the wonderful and much needed Hoboken311, which is a website that provides a lot of information about Hoboken Laws and regulations and, which was new to me, you can give detailed requests to the City about problems that need to be corrected.  Me, I complained about a broken sidewalk near my office.  Here is a screenshot of my request:

ScreenClip

I will update this Blog about the response to this request, but I think it is just great that at lease there is a process in place to deal with Citizen requests and suggestions.  Check it out.

November 5, 2012

An article about a wonderful client, a long time Hoboken Resident and Tarot Card Reader. Read about Janet Horton.

Janet_in_mirror

http://narrative.ly/2012/11/fortunate-one/

Photos by Sophie Butcher

Fortunate One

A writer turned PR director turned stockbroker finds her calling among a deck of tarot cards.

By Jaclyn Einis

There is no wall of beads. No headscarf. And absolutely no crystal ball. Just a set of stairs inside a boho-chic bistro spiraling up to a tiny alcove near the bathroom. Tucked in the corner is a woman, sitting, hands folded on a floral tablecloth, cards stacked and ready. The din of loud music and a packed house floats up from below. In spite of the noise and the constant traffic of diners, her table feels intimate.

The woman’s high cheekbones belie her 62 years. Her face feels familiar—a slender oval with deep-set brown eyes and cropped golden blonde hair, sort of Susan Sarandon meets Angela Lansbury. Her manicure, vintage rose-shaped earrings and the shirt beneath her open blue button-down are a perfectly matched powder pink.

Janet Horton at Raoul’s Restaurant

Janet Horton tells me her story on a recent Friday evening at the crowded Raoul’s Restaurant, which has hosted psychics on Prince Street in SoHo for the past 24 years. Horton has been reading tarot cards professionally for some fifteen years, and at Raoul’s for the past three. Speaking in an animated, nonlinear narrative, stopping here and there to chat with an inquisitive passersby or to cater to a customer, Horton explains that she tapped into the “other side” long before she knew what it meant to be psychic.

“I’m five years old, and my mother takes me to go meet the woman who moved in down the street,” says Horton, who grew up in a quiet, lakeside Ohio suburb. “We’re sitting on the couch, and beyond this lady’s head,” she motions past me, “is a hall, and down the hall, there are bedrooms, and in that bedroom to the left, there’s an old German man who died there. He says to me, ‘Tell these filthy squatters to get out of my house.’”

The young Horton relayed the message from the deceased old man, and her mother bade the new neighbor a hasty goodbye.

read the entire article at

http://narrative.ly/2012/11/fortunate-one/

November 4, 2012

Thanks to all the Hard Working people of Hoboken we are finally out of the dark and ready to to Work.

blog-photo

A Paperless office is great when the Power is on !!!!

  • Not so great when the Power is off.
  • But the Power is back and we are open and ready for business.
  • For all my clients, all your files and papers and documents and emails were not touched by the Storm.  Everything is safe  We moved and protected them. 
  • Our Computer  servers were also protected and we are getting fully online this Sunday Nov. 4th.  Please call the office at 201 656-1000 if we don’t answer just leave a message.  Email is working.
  • We also are implementing a new Text to Office service, since it is clear that Texting is the way most people communicate.   We will be the first Law office that I know of that will have a Text Number for the office.   That should be up and running next week.

Now on to some Legal Advice for all.

  • At this point it is too early to know the exact process and procedure for people trying to recover money for all their damages.
  • Frankly, for most people and most damages, lawyers will probably be more of a problem than a means for a solution.  I have received  many calls already about property damage and my advice is this:
  • Use that Cell Phone Camera and take pictures and more pictures.
  • Take close-ups and far away shots.
  • Use your camera to take pictures of any relevant receipts or things you are replacing or fixing.
  • Make sure the photos are dated.
  • Use some system to take voice notes, like even calling yourself to document your thoughts

And now for some Spiritual Advise.

Break out the Bubbly and have a great time !!!!

Frank Marciano

(this was written short and sweet, more to follow.)

September 28, 2012

Big and Getting Bigger

Hoobken not China

 

Came across this picture of Downtown Qingdao in the Shandong Province of China.  These building are primarily residential and are all newly built.

Qingdao-Haiwan-Bridge-Worlds-Longest-Bridge-On-Water

This is a new bridge that connects Qingdao to other coastal cities in China.  It is over 16 miles long and has 6 lanes. 

I really cant grasp how China, India and all of Asia is able to just explode in growth but I would say half of my client’s that are buying real estate in Hoboken and Jersey City and the waterfront in Weehawken and West New York are using money which was generated overseas and is being invested here in America.   

Let me digress.  The more I read about urban growth around the Globe in places like Brazil, Mexico, Yemen and Nigeria the more amazed I am that the Earth can  sustain all this growth.  When I was in high school the Malthusian Theory predicated mass starvation and disease in the future since human population would rise exponentially and food supplies would increase only arithmetically.   When he wrote this theory around 1780 the world population was about one billion but 230 years later world population is at 7 billion and rising.  Even though his theory was wrong I cant help but wonder how there can enough fish in the water to allow me to have fresh sushi wherever I go.   My last digression  about population growth is that 23 million chicken are killed each day in America for food.  Worldwide over 50 billion chicken are killed each year to feed the people of the world and that is only a small percentage of the daily food consumption of other animals and fish that are consumed daily throughout the world.  And lets not even begin to think about the garbage and waste that is generated by all this consumption.  On a day to day basis it all seems so simple and easy, I go to Kings buy what I want and cook up a nice meal.  The dichotomy between the complex engines of civilization that can seamlessly deliver such simple pleasures and the day to day enjoyment of products of those engines is astounding.

September 4, 2012

The Hoboken Shelter

shelter

My wife Judy and I took Roxy for walk on the Hoboken waterfront this Monday night, Labor Day. It was an unusually quiet and peaceful night. As we slowly walked from 4th and River towards the Train Station we witnessed what was apparently a nightly ritual where homeless people prepared themselves for bedtime on the streets of Hoboken. Some took out folded cardboard hidden in the bushes for sleeping

on, others alone, some with friends, prepared benches with blankets, taking out food to eat. Some laid down, some sat, mostly men, but there were some women. This was around 10:30 pm, when we saw a little woman with a cart and two small kids, 5 or 6 years old, just walking up and down the waterfront Blvd. As we watched it started to rain and the woman took out a blanket and wrapped it around and over her children's head and bodies to protect them from the rain. The kids, as kids do, were laughing and giggling like it was a game. Taking interest, we then saw the woman slowly and meekly approach the workers closing down the outdoor cafes. We followed them and found out that she was asking for food, saying they were homeless.
What to do, what can you do? Call the police? Will they help? Is that something the Police do? My wife gently approached them and gave them all the cash we had, the mother gently refused the money but when we said it was for the children she didn't object, but for us it felt like a futile gesture. To say it was sad and upsetting is an understatement. We didn't have our phones with us but thought it best to get the police involved for the sake of the children. We called the police, who were very attentive, and went back outside to check up on the response. We went back to the restaurant where the mother asked for food, they said they gave them some bread, but that it happens all the time at the end of the night, people asking for food.
But they did not know where the little family went. Thinking they might be going to the Train station for shelter we slowly walked toward the Lackawanna Plaza keeping an eye out for the little cart and kids. But they were gone, poof, into the night two little kids hanging on to their homeless mother. Along the way we saw 15- 20 homeless people, half covered with blankets and cardboard, the others milling around on benches and hidden alcoves. We come upon a police car and the policeman confirmed that the Police had in fact sent out a patrolman on foot to look for the mother and kids. We walked some more, asked a few people if they saw this little family but nothing.
That's it, no happy ending, no answer, no story arc. We did what we thought we could and should do; my wife thinks it was not enough, she’s right.
Our day to day life in Hoboken is filled with successful people and their real estate riches in our wonderful town, but to see a small community of people homeless and hungry in the shadow of the W Hotel is disconcerting. While our helplessness in this situation may be understandable it made us have a new found respect and admiration for the people and mission of The Hoboken Shelter and thank them for their thankless mission and will do more to support their mission.

May 5, 2012

"(You Gotta) Fight for Your Right (To Party!)

image
Until your back's up against the wall
You never know yourself that much at all
So you've got to share your love with a friend
That's all that you've got left in the end
Living in this city of pure confusion
People mislead by their own illusion

All this action, no satisfaction
We're all linked together like a chain reaction
Play or fold, love is bold
What is the future that will unfold?
Some like it hot, others like it cold
But we all want to hold the remote control
from “Remote Control” by the Beastie Boys
One of the Beastie boys died today, Adam Yauch aka MCA, and it made me sad.  There was something about their smart lyrics and great beats that I still enjoy after all these years.   The fight for your right (to Party) song always made me reflect on the fact that Thomas Jefferson, actually wrote at the beginning of the Declaration of Independence that one of the rights that the founding fathers were fighting for was the right to pursue Happiness.  In effect the right to Life and Liberty was not enough,  that “the Pursuit of Happiness” was just as important as Life and Liberty.  How totally radical, in fact how revolutionary that  must have sounded then.   And now, the right to pursue your happiness is so ingrained in our culture,  that people from all over the world come here for a better life,  to a country where the pursuit of your own happiness is a founding  principle of the government.  When Martin Luther King spoke of his dream, when he said that “America is essentially a Dream” he was expounding upon the words of Thomas Jefferson and the right to pursue Happiness. The tremendous struggles of the civil rights era were needed to right horrible wrongs of deep injustice.  But it is not frivolous to say that it was a fight for the right to party, because life and liberty are not, in and of  themselves enough.  The Beastie Boys made me dance and laugh and when I hear their music I feel young again.
How great is that !!!!!!
And now from the Declaration of Independence:



We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

January 28, 2012

Failure to Return Security Deposit, Double damages after Legal Deductions

Cartoon: security deposit (medium) by toons tagged adam,and,eve,garden,of,eden,bible,god,serpent,deposit

(NOTE: The status of this decision is Unpublished.)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY  APPELLATE DIVISION DOCKET NO. A-1486-10T3
WAKENNA DOWELL, Plaintiff-Respondent, v. HOSSEIN AMERI, Defendant-Appellant.
January 26, 2012 
From the Rutgers Law Library

Defendant Hossein Ameri appeals from the order of the Law Division, Special Civil Part, awarding judgment of $1550.34 to plaintiff, Wakenna Dowell, after a bench trial. We affirm.

Regarding the condition of the premises, the court found, based on photographs of the apartment taken by one of Ameri's workers, Ippolito Trinidad, that Dowell left holes in the walls. The wall repairs cost $300. However, the court was unpersuaded that Dowell left burn marks in the carpet, which was unsupported by photographic evidence. The court rejected as incredible the testimony of Kevin Slade, another Ameri worker, that he had installed new carpet at a cost of $300. The court noted that Ameri had claimed $300 in costs for "replacing damaged carpets in three rooms" in an itemized list of repair costs that he allegedly gave to Dowell on June 9; yet, according to the evidence, measurements were not taken until June 10, and work done thereafter. Regarding the issue of damage to the apartment, the court expressly declined to rely on October 2010 photographs that Dowell had introduced into evidence over Ameri's vigorous objection, and which Ameri referenced in his motion for a new trial.

The court found that North First Street where the apartment was located had been flooded in March, resulting in a shut off of water service and a charge for restoration. The court credited Dowell's assertion that her obligation for this was $87.83, and not $463.10 as Ameri alleged. The court thus found Dowell responsible for $387.83 in repairs and charges.

The court offset the repair cost and water charges against the security deposit, finding that $775.17 of the security deposit remained. Doubling that wrongly withheld amount, he awarded a judgment to Dowell of $1550.34. See N.J.S.A. 46:8-21.1 (requiring return of security deposit and interest "less any charges expended in accordance with the terms of [the] lease," and providing for payment of double the amount of moneys wrongfully withheld, plus costs of the action and, in the court's discretion, reasonable attorney's fees); Kan In Yi v. Re/Max Fortune Props., Inc., 338 N.J. Super. 534, 539 (App. Div. 2001) (stating that tenant's damages for wrongfully withheld funds under the Security Deposit Act, N.J.S.A. 46:8-19 to -26, are calculated based on the net amount due).

October 16, 2011

Palimony or Alimony support without Marriage must be evidenced by a written agreement signed by both Parties.

Hoboken-Palimony-pic

  In Hoboken a lot a people live together that are not married, and have no written agreement regarding their relationship.  Ranging from craigslist strangers to long term couples with children that have lived together for years without getting married, to same sex partners that never got around to filing for a civil union.  For many years, even without a written agreement, the courts would examine the relationship and take into account oral promises to support from one party to another.

This  promise by one party to a relationship to provide support for the other party to the relationship, either during or after termination of the relationship, is now not binding unless it is in writing and signed by the party making the promise.

As of January 2010. N.J.S.A. 25:1-5 (h) immediately amended the Statute of Frauds to include a provision relating to personal relationships:

  • N.J.S.A. 25:1-5. Promises or agreements not binding unless in writing. No action shall be brought upon any of the following agreements or promises, unless the agreement or promise, upon which such action shall be brought or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or by some other person thereunto by him lawfully authorized:
  • …..h. A promise by one party to a non-marital personal relationship to provide support or other consideration for the other party, either during the course of such relationship or after its termination. For the purposes of this subsection, no such written promise is binding unless it was made with the independent advise of counsel for both parties.

Of course lawyers have a way of explaining how black is white, and up is down, but for now, be aware that if you living with someone and depend on them for support, be sure to try and get something in writing to protect your interest in case the relationship ends and you have no where to go.

July 28, 2011

Fewer Americans File for Bankruptcy (New York Times)

bankruptcy
http://j.st/5mp
After steadily climbing for several years, the number of Americans
filing for bankruptcy is on the decline, though that is not necessarily
an indicator of an improving economy.  The number of bankruptcy filings
in June was 120,623, or an average of 5,483 a day, a drop of 6.2 percent
from May, when filings totaled 122,775, or 5,846 a day, according to a
report from Epiq Systems, which tracks bankruptcy filings.