JOHN MAHONEY AND KARIN PARKS VS. JAMES MCGOWAN(SC-0337-15, MONMOUTH COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-1709-15T3
JOHN MAHONEY AND KARIN
PARKS,
Plaintiffs-Respondents,
v.
JAMES MCGOWAN,
Defendant-Appellant.
_______________________________________
Submitted March 15, 2017 – Decided August 2, 2017
Before Judges Fuentes and Carroll.
On appeal from the Superior Court of New
Jersey, Law Division, Monmouth County, Docket
No. SC-0337-15.
James McGowan, appellant pro se.
The Wilton Law Firm, P.C., attorneys for
respondents (Brian T. Wilton, on the brief).
PER CURIAM
Plaintiffs John Mahoney and Karin Parks filed a small claims
complaint against defendant James McGowan, their former landlord.
Plaintiffs sought to recover the $3000 they paid as a security
deposit. The trial judge entered judgment in plaintiffs' favor,
finding that in sending an itemization letter by regular mail,
defendant violated N.J.S.A. 46:8-21.1. Consistent with our
holding in Reilly v. Weiss, 406 N.J. Super. 71, 80–81 (App. Div.
2009), we reverse and remand for the trial court to determine
whether the legitimate costs the landlord itemized in his letter
exceeded the amount of the original $3000 deposit.
Plaintiffs were represented by private counsel at trial.
Mahoney, the only witness who testified in plaintiffs' case-in-
chief, testified telephonically from Florida.1 Defendant appeared
pro se and testified in his own defense. The trial judge did not
find credible Mahoney's testimony that he left the apartment in a
1
We recognize the Rules of Evidence may be relaxed in Small Claims
matters. See Triffin v. Liccardi Ford, Inc., 417 N.J. Super. 453,
461 n.5 (App. Div. 2011) (citing N.J.R.E. 101(a)(2)(A)). However,
we expect the trial court to make some effort to comply with the
well-established two-prong test for allowing a witness to testify
telephonically. See State v. Santos, 210 N.J. 129, 141 (2012)
(quoting Aqua Marine Prods., Inc. v. Pathe Comput. Control Sys.
Corp., 229 N.J. Super. 264, 275 (App. Div. 1988)). As Justice
LaVecchia explained:
First, the court must determine whether the
opposing party has consented to the testimony
or whether there is a "special circumstance,"
also referred to as an "exigency," "compelling
the taking of telephone testimony." Second,
the court must be satisfied that "the witness'
identity and credentials are known quantities"
and that there is some "circumstantial voucher
of the integrity of the testimony."
[Ibid. (quoting Aqua Marine Prods., Inc.,
supra, 229 N.J. Super. at 275).]
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"broom-swept condition." By contrast, the judge found defendant's
testimony credible.
Specifically, the trial judge accepted defendant's testimony
concerning the repairs he made and other related costs attributable
to plaintiffs under the lease agreement. Plaintiffs left the
residence owing $1100 for two weeks of rent. Additionally,
plaintiffs painted certain rooms in the apartment in a "vibrant
blue color." Defendant paid $430 to restore the apartment to its
original paint color. Under the lease, plaintiffs were obligated
to restore the apartment to the condition it was in before the
start of their tenancy. Plaintiffs damaged approximately 120
square feet of flooring "in the rear room." Defendant paid $320
to restore the floor to its original condition. Plaintiffs "cut
two dog holes in the door to let the dogs run through." Defendant
replaced the two doors, paying $300 per door plus $150 for
installation. Plaintiffs left unpaid a $310 water bill, which
defendant paid on their behalf. Finally, plaintiffs consumed $208
worth of fuel to operate their hot water system.
The trial judge found defendant sent plaintiffs a letter
itemizing all of these repair costs and unfulfilled obligations.
However, the judge found defendant sent the letter by regular mail
in violation of N.J.S.A. 46:8-21.1. To support this argument,
plaintiffs' counsel cited our decision in Veliz v. Meehan, 258
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N.J. Super. 1 (App. Div. 1992), without explaining how it applied
to the issue raised in this case.2 Defendant testified he did not
send the letter by "certified mail or return receipt [because he]
didn't know of that requirement." The judge concluded that under
N.J.S.A. 46:8-21.1, defendant was required to send the letter "by
personal delivery, registered or certified mail[.]" The record
shows the judge believed himself obligated to follow a strict
mechanical application of the statutory language and enter
judgment in plaintiffs' favor in the amount of $3000.
We reverse. Defendant's failure to follow the literal
requirements of the notice provision in N.J.S.A. 46:8-21.1 was at
worst a technical violation of the statute. The violation was
inconsequential because plaintiffs actually received the letter
itemizing the deductions. As we held in Reilly v. Weiss, supra,406 N.J. Super. 71, "despite the landlord's admitted statutory
violations, the judge was required to 'determine the amount of
th[e] offsets and, if they [we]re greater than the security deposit
withheld, there [wa]s no deposit to return to the tenant and no
valid basis for enforcing the notification requirement of the
2
In Veliz, we held that "the landlord is obliged to return the
security deposit within 30 days or explain in writing why he or
she is not doing so. Failing such action, the tenant is entitled
to recover twice the deposit under the statute." Veliz, supra,
258 N.J. Super. at 5.
4 A-1709-15T3
statute.'" Id. at 81 (quoting Penbara v. Straczynski, 347 N.J.
Super. 155, 160–61 (App. Div. 2002)).
Reversed and remanded. We do not retain jurisdiction.
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