NOT FOR PUBLICATION WITHOUT THE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 only binding 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-4091-15T1
STEPHEN LOIACONO,
Plaintiff-Respondent,
v.
MICHAEL SALEMNE and
DOROTHY SALEMNE,
Defendants-Appellants.
_______________________________
Submitted September 11, 2017 – Decided September 27, 2017
Before Judges Accurso and Vernoia.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Docket No.
LT-000783-16.
Santo J. Bonanno, attorney for appellants.
Strasser & Associates, PC, attorneys for
respondent (Conrad M. Olear, on the brief).
PER CURIAM
This appeal arises out of defendants Michael and Dorothy
Salemne withholding two months' rent on the basis that their
downstairs neighbor was manipulating the heat in their
apartment. Their landlord, plaintiff Stephen Loiacono, filed a
summary dispossess action, and defendants demanded a Marini1
hearing. Following three days of testimony, Judge Rosa rejected
defendants' claims and entered judgment for the landlord. In an
amplified statement of reasons pursuant to R. 2:5-1(b), the
judge described the dispute as a credibility contest and
explained in considerable detail why he found the testimony of
the landlord's witnesses credible and rejected defendant Michael
Salemne's testimony.
Specifically, the judge credited the testimony of
plaintiff, his wife and the first-floor tenant, all of whom
testified that the temperature of all three apartments in the
building was controlled by a locked thermostat in the first
floor apartment set at seventy degrees.
More important to the judge's decision, however, was the
testimony of the two witnesses for plaintiff not involved in the
dispute. A heating contractor hired by the landlord testified
he inspected the boiler and the thermostat and found both in
working order. He explained that lowering or turning off the
heat in the first floor would cut the heat to all three
apartments as all were serviced by the same thermostat. He also
testified defendants told him their heat was working fine, and
1
Marini v. Ireland, 56 N.J. 130 (1970).
2 A-4091-15T1
he saw open windows in their apartment during the winter,
leading him to believe there was heat in their apartment. The
basement tenant testified he had lived in the building for over
two years and was never without heat.
Michael Salemme, in contrast, claimed the first-floor
tenant's boyfriend, identified only as "Ray," with whom he had a
contentious relationship, manipulated the heat so that there
would be no heat in defendants' second floor apartment. Because
heat rises, and the heating contractor found no problem with the
heating system, the judge reasoned "that if the basement tenant
had no problem with the heat during the same time that the
second floor tenant was complaining of the [lack of] heat,
either the laws of physics would be disregarded or the testimony
of the defendant is not credible." The judge found no evidence
to support defendants' version of events and found defendants'
"poor history of paying the rent in a timely fashion" a possible
motive for their having complained about the heat.
Defendants appeal, claiming the trial court's credibility
findings were flawed, and that the court erred in limiting their
testimony regarding their problems with Ray and refusing to
admit a surreptitiously recorded conversation with the landlord
in which he admitted Ray had access to the locked thermostat.
We reject those arguments.
3 A-4091-15T1
Our review of a trial court's final determination in a non-
jury case is limited. We will not disturb the judge's factual
findings and legal conclusions unless convinced they are so
unsupported by, or inconsistent with, the competent, relevant
and reasonably credible evidence as to offend the interests of
justice. Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150,
169 (2011).
Applying that standard, defendants have given us no cause
to reject the trial court's findings here. The judge's refusal
to expand the hearing to permit defendants to further expound on
their contentious relations with Ray and to admit the tape of a
phone conversation not provided to plaintiff in advance of the
hearing were both well within the court's broad discretion over
evidentiary issues and matters relating to the conduct of trial
proceedings. See Barber v. Shop-Rite of Englewood & Assocs.,
Inc., 393 N.J. Super. 292, 298 (App. Div. 2007).
We are satisfied the trial court carefully considered
defendants' claims and permitted them a fair opportunity to
prove the lack of heat in their apartment. We affirm the
judgment in the landlord's favor, substantially for the reasons
expressed by Judge Rosa in his amplified statement of reasons on
the record on June 2 and 3, 2016.
Affirmed.
4 A-4091-15T1