Opinion
DOCKET NO. A-3056-11T2
02-27-2013
BARTALE, INC., Plaintiff-Appellant, v. HERMES CANTOS, Defendant-Respondent.
Arturi, D'Argenio, Guaglardi & Meliti, attorneys for appellant (Anthony X. Arturi, Jr., on the brief). Dario, Yacker, Suarez & Albert, L.L.C., attorneys for respondent (Oscar A. Escobar, Jr., on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Hayden.
On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Hudson County, Docket No. LT-18535-11.
Arturi, D'Argenio, Guaglardi & Meliti, attorneys for appellant (Anthony X. Arturi, Jr., on the brief).
Dario, Yacker, Suarez & Albert, L.L.C., attorneys for respondent (Oscar A. Escobar, Jr., on the brief). PER CURIAM
Plaintiff Bartale, Inc. appeals from the February 21, 2012 Special Civil Part judgment dismissing its complaint to evict defendant, Hermes Cantos, for violation of its no-dog policy. We affirm.
We derive the following facts from the record. Plaintiff is the landlord of an eight-unit rent-controlled apartment building in Union City. Defendant and his mother, Ismaela Cantos, had resided in an apartment in the building since 1990. In April 2000, defendant's mother executed a lease that incorporated the landlord's rules and regulations, including a provision that "[d]ogs are not allowed in any of the apartments." The lease also provided that Ms. Cantos and defendant were authorized residents. Both mother and defendant contributed to the rent until 2005, when Ms. Cantos moved out.
In 2002, defendant obtained two small dogs, both Chihuahuas, named Frankie and Coci, who later had offspring named Baby and Tiny. All four dogs lived with defendant in his apartment until Tiny died, although the date this occurred is not in the record. In September 2011, plaintiff served a Notice to Cease on defendant and in November 2011, plaintiff brought an eviction action against defendant for violation of the no-dog policy. At the time of the trial on January 9, 2012, the three remaining dogs still resided with defendant.
Plaintiff first served the Notice to Cease on defendant in June 2011 and brought the eviction action in July 2011. That action was dismissed without prejudice because the landlord continued to accept rent from defendant.
Martin Vitale, the landlord's property manager, testified that he first became aware that defendant kept dogs in May 2011 when he heard barking during repairs near defendant's apartment unit. According to Vitale, he had never before seen or heard the dogs, and the building superintendent never informed him that defendant kept dogs in his apartment. Vitale stated that he was on the property every week or at least every other week. He also testified that he did not recognize defendant's son, Hermes Cantos, Jr. (Hermes).
Defendant testified that Vitale had seen him walking the dogs but had never said anything about them. He also reported that the superintendent had also seen him regularly with the dogs. He explained that he cared deeply for his dogs and did not want them to give them away. Defendant asserted that if, when he first got the dogs, the landlord had prohibited them, he could have easily found homes for them. Now, the dogs were old, and it would be difficult to find new owners.
Defendant's wife, Carmen Garcia, testified that Vitale was regularly in the building and she had seen him interact with defendant when he was walking the dogs. Garcia admitted that she had acquired a dog in 2009, which the landlord forced her to remove from the building in 2011.
Hermes testified that defendant had the dogs in his apartment since 2003. Hermes lived in the apartment from 2000, when he was twelve years old, until 2010, except during his two deployments to Iraq. According to Hermes, he had seen Vitale speak to his father several times outside the building when he walked the dogs. He also reported that the superintendent never said anything to him concerning the dogs. Hermes admitted candidly that he hated the dogs and was reluctant to testify.
Judge Martha T. Royster first decided that the landlord's rules and regulations applied to defendant since he was a holdover tenant. She found credible defendant's and Hermes' testimony that defendant had kept dogs in his apartment for over eight years and had openly walked the dogs. The judge observed that defendant had allowed the dogs to run in the hallway between his apartment and the next apartment. She deemed it incredible that Vitale, who came to the building two to four times per month during this lengthy period, and the superintendent, who was also frequently in the building doing repairs, never saw or heard the dogs. Judge Royster particularly credited the testimony of Hermes, who had not lived in the apartment since 2010, that he had seen his father and Vitale interacting while his father was accompanied by the dogs. Based upon these findings, the judge concluded that by allowing the dogs to remain in defendant's apartment and continuing to accept defendant's monthly rent checks for a protracted period, the landlord waived enforcement of the no-dog rule as to these dogs. Consequently, the judge dismissed the eviction complaint. This appeal followed.
Our review of the factual findings made by a trial judge in a non-jury case is quite limited. Estate of Ostlund v. Ostlund, 391 N.J. Super. 390, 400 (App. Div. 2007). It is not our task to "weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence." Mountain Hill, L.L.C. v. Twp. of Middletown, 399 N.J. Super. 486, 498 (App. Div. 2008) (citation omitted). Generally, a judge's factual findings "should not be disturbed unless they are so wholly insupportable as to result in a denial of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974) (citation and internal quotations omitted).
On appeal, plaintiff argues that there was no competent evidence from which the judge could find a knowing and intentional waiver of the landlord's right to enforce its no-dog policy. Additionally, plaintiff contends that photographs of defendant's apartment door were erroneously introduced into evidence. We find plaintiff's arguments without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially based upon Judge Royster's comprehensive oral opinion of January 9, 2012. We add only the following brief comments.
In this case, the trial judge made detailed credibility determinations that defendant and his son were truthful and plaintiff's representative, Vitale, was not credible. We will not substitute our assessment of the evidence for hers, as we are obligated to accept her findings of fact as long as they could reasonably have been made on the record before her. State v. Locurto, 157 N.J. 463, 471 (1999) (citation omitted). We have carefully examined the record and conclude that defendant has failed to demonstrate any error in the judge's factual findings. Accordingly, we accept the judge's finding that plaintiff had knowledge for many years that defendant kept multiple dogs in his residence yet failed to enforce its no-dog rule.
Plaintiff contends that the trial judge's determination that plaintiff had waived his right to enforce the no-dog policy was erroneous. The law of waiver is well-settled.
Waiver involves the intentional relinquishment of a known right and must be evidenced by a clear, unequivocal and decisive act from which an intention to relinquish the right can be based. . . . However, the intention to waive need not be stated expressly but may be spelled out from a state of facts exhibiting full knowledge
of the circumstances producing a right and continuing indifference to exercise that right. Therefore, waiver presupposes full knowledge of the right and an intentional surrender.
[Scibek v. Longette, 339 N.J. Super. 72, 82-83 (App. Div. 2001) (internal citations omitted).]
Here, plaintiff does not dispute that it was aware of its own rules and regulations, including its no-dog policy. Additionally, there is no dispute that defendant tendered and the landlord accepted defendant's monthly rent during the eight-year period that the judge found at least two and as many as four small canines resided in defendant's apartment. Where a party knows of a right and "then abandon[s] it, either by design or indifference," the party has waived that right. Knorr v. Smeal, 178 N.J. 169, 177 (2003); see also East Orange v. Bd. of Water Comm'rs, 41 N.J. 6, 18 (1963) (noting that acceptance of rent with knowledge of a breach of a lease, constitutes a waiver of all past breaches). We reject plaintiff's contention that that a waiver did not occur here.
We have no doubt that a landlord may validly prohibit pets in rental premises upon proper notice to the tenant. Young v. Savinon, 201 N.J. Super. 1, 8 (App. Div. 1985). However, based on a landlord's action or inaction, a tenant may be able to show waiver or estoppel. Id. at 9. As we have previously stated, no-pet provisions are
reasonable from a landlord's point of view and should be enforced unless the landlord has expressly or impliedly permitted particular pets to be maintained, is otherwise estopped from enforcing the provision, or if a tenant who had previously been allowed to maintain a pet upon the premises can show that it is unreasonable to enforce the provision under the particular circumstances . . . ."
[Id. at 10.]
We find no error in Judge Royster's conclusion that plaintiff had waived its right to enforce its no-dog rule against defendant as to these dogs, who resided openly in defendant's apartment with plaintiff's knowledge for many years. We agree that enforcement of the no-dog rule as to the three dogs living in defendant's apartment at the time of the trial would be unreasonable, especially in light of defendant's emotional attachment to them, fostered, in part, by plaintiff's failure to enforce its own policy.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION