CAROLINE HARMON VS. BILTMORE REALTY COMPANY, LLC (L-0593-12, HUNTERDON COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: October 19, 2018
• Docket: A-2186-16T2
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2186-16T2

CAROLINE HARMON,

Plaintiff-Appellant,

v.

BILTMORE REALTY COMPANY, LLC; NICHOLAS RIZZO; SCOTT O'BRIEN; JEFFREY M. COHEN, ESQ.; HENRY LAMELLA, ESQ., and COHEN & LAMELLA, LLC,

Defendants-Respondents. __________________________________

Submitted September 13, 2018 – Decided October 19, 2018

Before Judges Whipple and DeAlmeida.

On appeal from Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-0593-12.

Patrick J. Whalen, attorney for appellant.

Cole Schotz, PC, attorneys for respondents Biltmore Realty Company, LLC, Nicholas Rizzo and Scott O'Brien (Joseph Barbiere and David S. Gold, of counsel and on the brief). Pillinger Miller Tarallo, LLP, attorneys for respondents Jeffrey M. Cohen, Esq., Henry Lamella, Esq. and Cohen & Lamella, LLC (Patrick J. Cosgrove, on the brief).

PER CURIAM

Plaintiff, Caroline Harmon, appeals from the June 29, 2016 order granting

summary judgment to defendants on her claims for relief under the New Jersey

Consumer Fraud Act, N.J.S.A. 56:8-1 et seq. (CFA), the Tenant Reprisal Act,

N.J.S.A. 2A:42-10.10 to -10.14 (TRA), and the New Jersey Law Against

Discrimination, N.J.S.A. 10:5-4.1 (LAD). We affirm.

We discern the following facts from the record. Plaintiff is a woman, now

in her nineties, who lived in the Hunter Hills Apartments beginning in 2007.

Defendants are Biltmore Realty Company, LLC, (Biltmore), Nicholas Rizzo,

General Managing Partner of Biltmore, and Scott O'Brien, property manager, as

well as Jeffrey M. Cohen, Esq., Henry Lamella, Esq., and Cohen & Lamella

LLC. In 2010, plaintiff's apartment failed an inspection due to bed bug

infestation. The New Jersey Department of Community Affairs gave Biltmore

thirty days to correct the problem. A few months later plaintiff informed the

property manager, Scott O'Brien, that her apartment was infested with bed bugs.

Biltmore enlisted an exterminator to investigate and treat the infestation in

A-2186-16T2 2 plaintiff's apartment. The exterminator was unable to eliminate the infestation,

arguably because plaintiff was physically unable to comply with the preparation

procedures, which included removing all bedding and clothing, moving furniture

six inches from the wall and taking down all curtains.

The infestation persisted, so on July 22, 2011, O'Brien relocated plaintiff

to a new apartment in the complex. Plaintiff resisted moving arguing she was

not physically able, but O'Brien assured her she would not have to physically

participate in the move. When plaintiff relocated, the majority of her belongings

remained in the old apartment and Biltmore eventually moved the items to the

garage assigned to the old apartment. In her new apartment, Biltmore provided

plaintiff with a bed frame, mattress, bedroom furniture, love seat, chair, coffee

table and two side tables. Her furnishings and clothes from her old apartment

were not moved. Plaintiff asserts when she moved into the new apartment there

were no lights, no kitchen table, and none of her clothes, so she went back to

recoup items from her old apartment.

Within a few months, her new apartment was infested with bed bugs.

Plaintiff continued to complain to defendants and governmental agencies,

including the Health Department, the Division of Consumer Affairs, and the

Department of Human Services. During this time, the exterminator attempted

A-2186-16T2 3 to eradicate the problem but plaintiff did not or could not adequately prepare the

apartment for thorough extermination methods and defendant did not assist her.

On July 9, 2012, Biltmore sent plaintiff a Notice to Cease. The notice

stated plaintiff was willfully or grossly negligent and caused destruction to

rented premises and substantial breach of property owner's rule and regulations,

because she did not follow the instructions for extermination. The notice warned

that if the apartment was not adequately prepared for the extermination process

on July 16, 2012, Biltmore would evict her.

On July 17, 2012, Biltmore sent plaintiff a Notice to Vacate. The notice

advised plaintiff her lease would terminate on July 23, 2012, because she did

not adequately prepare the apartment for extermination. The notice offered

plaintiff another chance to avoid eviction by completing the necessary

preparations. On July 27, 2012, Biltmore, through their lawyers, Cohen and

Lamella LLC, filed a complaint for eviction, citing plaintiff as a disorderly

tenant and asserting that she had willfully destroyed rental property, and was the

cause for the bed bug infestations. The complaint was withdrawn, and plaintiff

was never evicted.

On October 15, 2012, plaintiff filed a complaint against the Biltmore

defendants and later filed an amended complaint alleging malpractice against

A-2186-16T2 4 the Cohen and Lamella defendants. The complaint alleged the Biltmore

defendants were negligent, violated the TRA, violated the CFA, breached the

implied warranty of habitability, breached their contract, breached the implied

covenant of good faith and fair dealing, violated the LAD and sought injunctive

relief and receivership, all stemming from the bed bug infestation in plaintiff's

apartment. The amended complaint asserted Cohen and Lamella's

representation of the Biltmore defendants violated New Jersey's Anti-Eviction

Act and the CFA. Plaintiff sued the lawyers because they allegedly counseled

defendants to initiate eviction proceedings against her.

Plaintiff asserted she had suffered physically, mentally and emotionally

from the infestations and defendants' mismanagement. She asserted defendants

denied her reasonable accommodations because defendants did not assist her in

the extermination preparation process, including moving heavy furniture.

During her deposition, plaintiff did not characterize herself as disabled, but

physically limited due to age, arthritis, the curvature of her back, and shortness

of breath. Plaintiff claimed the defendants were aware of these limitations.

On June 4, 2013, plaintiff filed an Order to Show Cause seeking a

treatment plan for the apartment. However, plaintiff was unwilling to vacate

temporarily in order for an exterminator to treat the premises. Plaintiff asserted

A-2186-16T2 5 due to health issues she was unable to relocate for even one night. Plaintiff's

counsel proposed defendants assist with the pretreatment and treatment process

in a way that did not require relocation.

On November 4, 2013, the parties signed a Consent Order agreeing

Biltmore would have the apartment exterminated in a manner that did not require

plaintiff's absence from the apartment for more than five hours, and in such a

way that did not leave her without a bed to sleep on at night. In so agreeing,

plaintiff acknowledged the potentially limited effectiveness of this method of

treatment. The parties also agreed to treat plaintiff's personal property in

storage.

However, shortly thereafter, defendant informed plaintiff the exterminator

warned of ineffective treatment if any furniture, including plaintiff's bed,

remained in the apartment during treatment and recommended plaintiff leave the

apartment for two nights to allow the administration of an effective treatment.

Defendants offered to put her in a hotel for two nights. Plaintiff instead

requested defendants provide her with a temporary bed and furnishings so that

she could remain in the apartment overnight. The parties remained at an

impasse.

A-2186-16T2 6 On October 7, 2015, the Biltmore defendants moved for partial summary

judgment for the statutory counts and all counts directed at Rizzo, and then for

the remaining common law counts on November 5, 2015. On October 19, 2015,

the Cohen and Lamella defendants moved for summary judgment and dismissal

of the amended complaint.

On June 29, 2016, the motion judge granted partial summary judgment

dismissing plaintiff's claims under TRA, CFA, and LAD, as well as dismissing

all claims against Rizzo and the Cohen and Lamella defendants. The trial judge

denied the summary judgment motion for plaintiff’s negligence claim against

the Biltmore defendants. He also denied the motion as to the breach of contract

claim and the claim of breach of the covenant of good faith and fair dealing.

On December 9, 2016, plaintiff voluntarily dismissed all remaining claims

against all defendants with prejudice in exchange for $45,000. In the Stipulation

of Dismissal plaintiff specifically reserved her right to appeal the summary

judgment order concerning the dismissed statutory claims. This appeal

followed.

We review a trial court's summary judgment decision de novo, applying

the same standard governing the trial court. Davis v. Brickman Landscaping,

Ltd., 219 N.J. 395, 405 (2014). We consider, as the motion judge did, "whether

A-2186-16T2 7 the competent evidential materials presented, when viewed in the light most

favorable to the non-moving party, are sufficient to permit a rational factfinder

to resolve the alleged disputed issue in favor of the non-moving party." Id. at

406 (citation omitted). If there are no genuine issues of material fact, we then

"decide whether the trial court correctly interpreted the law." DepoLink Court

Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App.

Div. 2013) (citation omitted). As a general proposition, "[a] trial court's

interpretation of the law and the legal consequences that flow from established

facts are not entitled to any special deference." Manalapan Realty, LP v. Twp.

Comm. of Manalapan, 140 N.J. 366, 378 (1995) (citation omitted). Moreover,

our review is limited to an examination of "the original summary judgment

record." Noren v. Heartland Payment Sys., Inc., 449 N.J. Super. 193, 196 (App.

Div. 2017) (internal quotation omitted).

On appeal, plaintiff argues the court erred granting summary judgment as

to her statutory claims. We address each of the three statutory claims in turn.

Plaintiff contends her physical limitations, her arthritis and her age are

disabilities that entitle her to an accommodation under the LAD and the court

erred dismissing her claims because she did not provide proof of her disability

with expert evidence. The LAD provides, in pertinent part that:

A-2186-16T2 8 All persons shall have the opportunity to . . . obtain all the accommodations, advantages, facilities, and privileges of any place of public accommodation . . . without discrimination because of race, creed, color, national origin, ancestry, age, marital status, affectional or sexual orientation, familial status, disability, liability for service in the Armed Forces of the United States, nationality, sex, gender identity or expression or source of lawful income used for rental or mortgage payments ....

[N.J.S.A. 10:5-4.]

We have said the LAD "is to be construed liberally." Franek v. Tomahawk

Lake Resort, 333 N.J. Super. 206, 217 (App. Div. 2000). Among the statutes'

objectives, "the LAD is intended to insure that handicapped persons will have

'full and equal access to society, limited only by physical limitations they cannot

overcome.'" Franek, 333 N.J. Super. at 217 (quoting D.I.A.L., Inc. v. N.J. Dep't

of Cmty. Affairs, 254 N.J. Super. 426, 439 (App. Div. 1992)).

To that end, it is unlawful for any person to "[r]efuse to make reasonable

accommodations in rules, policies, practices or services . . . when such

accommodations or modifications may be necessary to afford a person with a

disability equal opportunity to use and enjoy a dwelling." N.J.A.C. 13:13-

3.4(f)(2). Thus, "the LAD prohibits discrimination by a public entity on the

basis of a tenant's disability." Oras v. Hous. Auth., 373 N.J. Super. 302, 311

(App. Div. 2004). The statute defines disability as:

A-2186-16T2 9 physical or sensory disability, infirmity, malformation, or disfigurement which is caused by bodily injury, birth defect, or illness including epilepsy and other seizure disorders, and which shall include, but not be limited to, any degree of paralysis, amputation, lack of physical coordination, blindness or visual impairment, deafness or hearing impairment, muteness or speech impairment, or physical reliance on a service or guide dog, wheelchair, or other remedial appliance or device, or any mental, psychological, or developmental disability, including autism spectrum disorders, resulting from anatomical, psychological, physiological, or neurological conditions which prevents the typical exercise of any bodily or mental functions or is demonstrable, medically or psychologically, by accepted clinical or laboratory diagnostic techniques. Disability shall also mean AIDS or HIV infection.

[N.J.S.A. 10:5-5(q).]

A disabled tenant alleging a wrongful denial of a requested

accommodation bears the initial burden to show the requested accommodation

is or was necessary to afford him or her an equal opportunity to use and enjoy a

dwelling. If the tenant's burden is successfully met, the burden shifts to the

landlord to show the accommodation is or was unreasonable. Oras, supra at 312.

Here, plaintiff contends she was entitled to the reasonable accommodation of

having the heavy furniture moved and the apartment prepared in anticipation of

bed bug extermination treatments and her disability was readily apparent

A-2186-16T2 10 because she was an elderly woman. She argues the Biltmore defendants knew

that she had physical limitations because she could not use stairs.

However, discussing disabilities under the LAD in the context of

discriminatory discharge from employment, the Supreme Court said "[w]here

the existence of a handicap is not readily apparent, expert medical evidence is

required." Viscik v. Fowler Equip. Co, 173 N.J. 1, 16 (2002) (citing Clowes v.

Terminix Int'l, Inc., 109 N.J. 575, 591-93 (1988) (subsequent citation omitted)).

Plaintiff contends the court's requirement of expert evidence to prove her

disability ignored the remedial purpose of the statute. Plaintiff asserts her

disability was arthritis and old age. Old age is readily apparent, however, it is

not in and of itself, a protected disability. Many consequences of old age are

disabilities but not readily apparent. However, here the trial judge determined

plaintiff's arthritis was not readily apparent and required expert evidence to

establish a disability under the LAD and his conclusion finds support in the

record. Plaintiff testified in her deposition she drives, walks her dog and takes

yoga classes. Therefore, plaintiff did not establish a claim under for which she

A-2186-16T2 11 could recover damages under the LAD because she did not prove she had a

protected disability. 1

We next address the TRA. Under the TRA, a landlord is precluded from

serving a notice to quit or bringing an eviction action against a tenant as a

reprisal for the tenant's efforts to secure or enforce any rights under the lease,

including in retaliation for a tenant's complaint to governmental authorities.

N.J.S.A. 2A:42-10.10(a)-(b).

To preserve a claim under the TRA, a plaintiff must prove as a result of

the landlord’s retaliation he or she suffered damages. See Onderdonk v.

Presbyterian Homes, 85 N.J. 171, 191 (1981) (holding that plaintiff’s TRA claim

could not be sustained for his failure to prove damages). "Although New Jersey

permits recovery for emotional distress damages in some cases, the potential for

fabricated claims justifies a requirement of enhanced proof to support an award

1 After reviewing the record, we consider it unlikely an octogenarian was able to perform all of the tasks to prepare the apartment for an exterminator to address the infestation. However, the record is unclear the extent to which plaintiff requested assistance from defendants for these tasks and whether those requests were denied in the early years of the infestation. When defendants relocated plaintiff, the problems continued. We consider defendants' characterization of plaintiff as an uncooperative and disruptive tenant dubious. However, eventually defendants did attempt to fumigate the apartment and all of plaintiff's belongings and pay for a hotel for plaintiff while the work was undertaken. Why she declined the offer is also unclear. A-2186-16T2 12 of such damages." Picogna v. Bd. of Educ., 143 N.J. 391, 396-97 (1996).

Additionally, "an award of attorney fees is not considered to be compensatory,

but provided, as a policy matter in specific types of cases, to remedy the problem

of unequal access to the courts." Baker v. Nat'l State Bank, 353 N.J. Super. 145,

161 (App. Div. 2002) (citation omitted).

Plaintiff asserts defendants retaliated against her for complaining to

governmental agencies by sending her a notice to quit and filing an eviction

action against her. Plaintiff argues her damages were the incurred attorney's

fees and litigation costs for having to defend herself, as well as emotional

distress. She argues the trial judge erred by imposing a high burden on liability

and damages and requiring expert testimony to prove her emotional distress

claim.

Plaintiff provided no expert evidence to support her claim defendants’

actions caused emotional suffering and damages. Claims of sleeplessness and

anxiety are insufficient under the law. See Juzwiak v. Doe, 415 N.J. Super. 442,

453 (App. Div. 2010). Moreover, standing alone, plaintiff's legal fees do not

constitute damages.

Finally, we address plaintiff's claim under the CFA. The CFA provides a

remedy for a consumer who has suffered an ascertainable loss of money or

A-2186-16T2 13 property resulting from an unlawful commercial practice and allows recovery of

treble damages, costs, and attorney's fees. Heyert v. Taddese, 431 N.J. Super.

388, 411 (App. Div. 2013) (citing Lee v. First Union Nat'l Bank, 199 N.J. 251,

257 (2009)). The statute applies to landlords as "'sellers' and tenants as

'consumers' since it applies to the rental of real estate." 49 Prospect St. Tenants

Asso v. Sheva Gardens, 227 N.J. Super. 449, 465 (App. Div. 1988). In order to

state a claim under the CFA, a consumer must allege unlawful conduct, an

ascertainable loss and a causal relationship between the unlawful conduct and

the ascertainable loss. Heyert, 431 N.J. Super. at 412. "[T]he term

‘ascertainable loss,’ . . . means that plaintiff must suffer a definite, certain and

measurable loss, rather than one that is merely theoretical." Bosland v. Warnock

Dodge, Inc., 197 N.J. 543, 558 (2009) (citation omitted). The "objectively

ascertainable loss or damage" must be "measured by 'expert proof of diminution

of value' of the plaintiffs' property or 'out of pocket expenses causally connected

with the claimed defect perpetuated by the defendant.'" Romano v. Galaxy

Toyota, 399 N.J. Super. 470, 479 (App. Div. 2008) (quoting Thiedemann v.

Mercedes-Benz USA, LLC, 183 N.J. 234, 244 (2005)).

If a plaintiff is claiming a loss in value the claim "must be supported by

sufficient evidence to get to the factfinder . . . the plaintiff must proffer evidence

A-2186-16T2 14 of loss that is not hypothetical or illusory." Id. at 479 (internal quotation

omitted). The loss in value "[must be] capable of calculation, although it need

not be demonstrated in all its particularity to avoid summary judgment ."

Thiedemann, 183 N.J. at 248.

The CFA "broadly distinguishes between damages on the one hand and

non-damages on the other." Lettenmaier v. Lube Connection, Inc., 162 N.J. 134,

140 (1999). Damages relate to the ascertainable loss whereas the non-damages

are reasonable attorney's fees, filing fees and reasonable costs of suit. Ibid.

Therefore the Legislature "implicitly recognized counsel fees as outside the

class of damages and as a component of fees and costs by lumping counsel fees,

filing fees and costs together." Ibid.

Plaintiff argues the trial judge erred when he ruled she did not prove an

ascertainable loss from the infestation because she did not receive what she paid

for in rent each month. She asserts the lack of habitability due to the bed bug

infestation constituted a condemned commercial practice. She further argues

her ascertainable damages are the loss of her personal property, legal fees, and

rent recoupment.

Plaintiff did not prove an ascertainable loss sufficient to trigger the

protections of the CFA. Under Lettermaier, attorney's fees are outside the

A-2186-16T2 15 damage calculation of a CFA claim. Plaintiff provided no expert appraisal of

the value of her personal property or proof her property was damaged.

Moreover, she did not provide evidence that calculated the diminution in value

of her apartment. 2

Furthermore, plaintiff's claims against the Cohen and Lamella defendants

were correctly dismissed as the CFA is not applicable against attorneys, Vort v.

Hollander, 257 N.J. Super. 56, 62 (App. Div. 1992), and she did not state a claim

under the TRA for the reasons explained above.

We do not address plaintiff's remaining arguments as they lack sufficient

merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

2 The motion judge found plaintiff's negligence claim still provided an avenue to pursue claims for all compensable damages and the record demonstrates defendants settled her common law claims for $45,000. A-2186-16T2 16