NOT FOR PUBLICATION WITHOUT THE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-0550-15T4
DILMUROD AKRAMOV,
Plaintiff-Appellant,
v.
AMY DELUCA,
Defendant-Respondent.
________________________________________________________________
Submitted November 19, 2016 – Decided August 21, 2017
Before Judges Fasciale and Sapp-Peterson.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Docket No. SC-
708-15.
Sabir Law Group, attorneys for appellant
(Mohammed I. Shariff, on the brief).
Amy DeLuca, respondent pro se.
PER CURIAM
This is an appeal from the judgment of the Special Civil
Part, which dismissed plaintiff Dilmurod Akramov's complaint, in
which he sought to recover his security deposit, attorney's fees
and costs, and granted defendant Amy DeLuca's counterclaim seeking
damages arising out of plaintiff's occupancy of a condominium unit
she owned and leased to him. We affirm.
The evidence presented at trial disclosed that the parties
entered into a lease agreement for the condominium in April 2011.
Plaintiff resided at the premises for four years. According to
plaintiff, the condominium unit was seventeen years old at the
time he moved in. Defendant did not install new carpeting at that
time. He did not like the color of the walls, and defendant gave
him permission to paint.
When he moved out, nothing was broken. He indicated that
the "[b]athtub paint was little bit peeling," which he believed
was caused by "water damage." He denied breaking the countertop
and testified that there were stains on the Formica countertop
when he moved in. He testified that he never used all of the
outlets and, therefore, could not state whether they were all
operable at the time he moved in.
Plaintiff acknowledged the existence of stains on the carpet,
but stated that since the carpet was not new, he attributed its
condition to normal wear and tear. He also testified that he
broke the door knob, but defendant agreed to replace it if he
purchased the door knob, which he did.
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Plaintiff further testified that before moving out he steam-
cleaned the carpets and painted the walls. He then demanded the
return of his $1350 security deposit. Defendant, in turn, demanded
that plaintiff pay for damages, which she claimed he caused.
Under cross-examination, plaintiff stated that he did not
recall what precautions he took to make sure the quality of the
paint job was equivalent to the existing paint job at the time he
moved in because he had painted the walls four years earlier. He
acknowledged that his daughter may have written on the walls and
put some marks on the carpet with a marker, but that he took care
of these conditions before he moved out.
In her testimony, defendant detailed the damages to the
property caused during plaintiff's tenancy and introduced
photographs depicting some of the damages about which she
testified. She also presented receipts for repairs performed and
estimates for items she testified needed to be replaced. Starting
with the kitchen, defendant testified the stove top was full of
grime and caked-on grease, which she was unable to remove. There
was a sticker placed on the refrigerator, which she was also unable
to remove. In addition, there were burn marks on the Formica
countertops. In the master bathroom, the bathtub and sink were
chipped. Defendant stated she gave plaintiff permission to paint,
but that the painting was of poor quality. She described paint
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and bleach marks on the carpet throughout the condo and that
plaintiff painted over the wall outlets. There was writing on the
walls that appeared to have been done by a child.
Finally, defendant acknowledged that she did not deposit
plaintiff's security deposit in a separate interest-bearing
account or give plaintiff notice of where the security deposit had
been deposited. She testified that she deposited the security
deposit in her personal account, which is interest-bearing.
In its findings, the trial court largely credited the
testimony of defendant, noting that she produced photographs of
the condition of the premises, as well as receipts and estimates
for the work that had yet to be performed. The photographs
admitted into evidence also included photographs of the premises
prior to plaintiff's occupancy.
The judge initially found that defendant improperly comingled
plaintiff's security deposit with other funds and determined that
plaintiff was entitled to damages in the amount of $1770, which
included interest, calculated from the date the tenancy commenced.
Turning to defendant's counterclaim, the court credited
defendant's testimony regarding damage plaintiff caused to the
Formica countertop, one of the stove burners, the carpeting, the
walls, the bathroom sink and tub, and awarded defendant $3332 in
damages. After subtracting $1770 for the amount of the security
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deposit, which included seven percent interest, the court entered
judgment for defendant on her counterclaim for $1562. The present
appeal followed.
On appeal, plaintiff contends "[t]he trial court's order
granting defendant replacement cost for items allegedly damaged
during plaintiff's tenancy is not supported by the facts, and [is]
contrary to prevailing law." We disagree.
Our standard of review is highly deferential. All that is
required is that the facts, as found by the judge, be supported
by adequate competent evidence in the record. Rova Farms Resort,
Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). So
long as the trial judge's findings are "supported by adequate,
substantial and credible evidence[,]" they will be affirmed. Id.
at 484. Our task is, therefore, limited. We will not "engage in
an independent assessment of the evidence as if [we] were the
court of first instance." N.J. Div. of Youth & Family Servs. v.
Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002) (alteration in
original) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)).
Therefore, "we do not disturb the factual findings and legal
conclusions . . . unless we are convinced that they are so
manifestly unsupported by or inconsistent with the competent,
relevant and reasonably credible evidence as to offend the
interests of justice[.]" Ibid. (quoting Fagliarone v. Twp. of N.
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Bergen, 78 N.J. Super. 154, 155 (App. Div.)). certif. denied, 40
N.J. 221 (1963).
We accord particular deference to findings of credibility.
Even when a trial judge does not expand upon credibility
determinations, those determinations are entitled to deference if
supported by the evidence presented. These findings "are often
influenced by matters such as observations of the character and
demeanor of witnesses and common human experience that are not
transmitted by the record." Locurto, supra, 157 N.J. at 474
(citations omitted).
With our review guided by these principles, we discern no
basis to intervene in this matter. Plaintiff's challenge to the
findings by the trial court primarily focuses upon the trial
court's factual determination that the countertop and sink are not
susceptible to wear and tear, which plaintiff contends was
"arbitrary and capricious because [the trial court] fails to base
[its] judgment on any legal grounds." To support this contention,
plaintiff references a letter sent to defendant in April 2015,
which explained the useful life or depreciable life of the Formica
countertop, porcelain sink, and carpet.
The letter, written by an attorney from Arkansas contains
data from various sources, including the United States Treasury
Regulations and the International Association of Certified Home
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Inspectors. The letter detailed the economic or depreciated value
of a number of the items defendant testified plaintiff damaged.
The court was under no obligation to credit this evidence
over defendant's testimony. Here, the judge relied upon the
photographs admitted into evidence, which depicted the condition
of the bathtub, sink, and Formica countertop; and the receipts
defendant produced evidencing actual costs she incurred and
projected estimates for further repairs.
In describing the damage to the sink, for example, the court
stated that it was unaware that "you could possibly get those
chips there. But it truly does look hideous." The court also
observed that there were "big noticeable burn marks from a pot[,]"
on the Formica countertop. It found the damage to the Formica
countertop and sink "significant."
In resolving whether plaintiff had damaged one of the stove
burners, the court stated: "Why would you pay to have a burner
fixed if it wasn't broken? She has an invoice that that's the
amount that was paid[.]" Likewise, the court credited defendant's
testimony regarding the need to re-glaze the bathtub, noting "[w]hy
would you have that done if it didn't need to be done?"
The brief submitted in support of plaintiff's appeal states,
with regard to the Formica countertop and porcelain sink, that
"the factual assessment of whether the item was damaged or not is
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not at question." Rather, plaintiff challenges the court's
consideration of depreciation for the damages to the carpet, but
not of depreciation for the Formica countertop and porcelain sink.
In that regard, the court did not find as a fact that such items
don't depreciate. Instead, the court stated they "are not things
that really depreciate with time. They pretty much last forever
unless you actively do damage to it."
Thus, the court implicitly implied that in the absence of
active damage, these items would not require replacement because
of normal wear and tear--as distinguished from a carpet, which the
judge observed "fades with the sunlight. People walk on it. There
are just even in the normal course of using it you will get
stains[.]"
"[W]hile the damages may not be determined by mere speculation
or guess, it will be enough if the evidence shows the extent of
the damages as a matter of just and reasonable inference, although
the result be only approximate." Story Parchment Co. v. Paterson
Parchment Paper Co., 282 U.S. 555, 563, 51 S. Ct. 248, 250, 75 L.
Ed. 544, 548 (1931). We are satisfied the trial court's
credibility determinations are supported by the evidence and
entitled to our deference. See Locurto, supra, 157 N.J. at 471.
The damages award was not so wide of the mark that it resulted in
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a denial of justice. See, e.g., Rova Farms, supra, 65 N.J. at
484.
Finally, plaintiff's claim that the trial court's damages
award reflects its improper consideration of defendant's testimony
that she wanted to sell her condominium is without merit. While
the court commented that the condition of the premises would not
be favorable to prospective purchases, we view these comments as
gratuitous and in no manner indicative of the measure of damages
for the items it found plaintiff damaged.
Affirmed.
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