Opinion
DOCKET NO. A-1124-13T4
03-31-2015
YOAILA KOPELOWITZ, Plaintiff-Respondent, v. BPF ASSOCIATES, Defendant-Appellant.
Dominic J. Cerminaro & Associates, attorneys for appellant (Warren L. Fink, of counsel and on the brief). Yoaila Kopelowitz, respondent pro se.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Whipple. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. SC-1142-13. Dominic J. Cerminaro & Associates, attorneys for appellant (Warren L. Fink, of counsel and on the brief). Yoaila Kopelowitz, respondent pro se. PER CURIAM
Defendant BPF Associates appeals from a judgment entered by the Law Division in favor of plaintiff Yoaila Kopelowitz on August 29, 2013. We affirm in part, reverse in part, and remand the matter to the trial court for further proceedings.
We briefly summarize the relevant facts. Plaintiff leased an apartment from defendant. In July 2013, plaintiff filed a complaint in the Small Claims Section of the Special Civil Part, alleging that water leaked into her apartment from the roof due to a lack of maintenance. Plaintiff claimed that the water damaged her personal property. It appears that defendant failed to answer the complaint and default was entered. The record indicates that defense counsel was retained in late August to file a motion to vacate the default. It is unclear from the record whether such a motion was filed.
On August 29, 2013, the trial court conducted a hearing in the matter. Plaintiff testified that the water leak caused damage to her couch, coffee table, rug, and laptop computer. Plaintiff submitted evidence indicating that she paid $1100 for the couch, $225 for the coffee table, $646. 17 for the rug, and $1616 for the computer.
Plaintiff further testified that she purchased the computer on May 15, 2008. The computer was irreparably damaged and she could not save the data that had been stored on it. Plaintiff said she had discarded the couch and rug. She noted that the couch, rug and coffee table had been damaged two years earlier as a result of a similar leak.
The judge placed his decision on the record. The judge did not award plaintiff any damages for the couch and coffee table because plaintiff had not presented sufficient information as to the value of these items. However, the judge awarded plaintiff $646 for the damaged rug, and $1616 for the computer.
The judge noted that plaintiff had purchased the damaged computer in 2008. He stated that the damaged computer was "obsolete" and would be "a lot different" from a computer that is purchased "now" for $1600. The judge commented that "you [cannot] buy the old [computer] and replace it, [because] they [do not] make them anymore."
Defendant's attorney argued that plaintiff was only entitled to the depreciated value of the computer that was damaged, not its original cost or the cost to replace it. The judge rejected the argument, stating that plaintiff "lost a computer" and had "to get a computer to replace it[.]" The judge said if defendant "had done something about [the leak] beforehand," the parties would not be in court.
The judge entered a judgment dated August 29, 2013, awarding plaintiff $2262 plus $22 in court costs, for a total of $2284. Thereafter, defendant filed a motion seeking reconsideration of the amount awarded for the damage to the computer. Defendant argued that the judge had erred as a matter of law by awarding plaintiff damages that exceeded the computer's value at the time of the loss. In a supporting certification, defendant's attorney suggested without any factual support that the value of the computer at the time of the loss was $350.
Plaintiff opposed the motion. In an affidavit submitted to the trial court, plaintiff stated that the device had been her "main" computer, which she used in her custom jewelry business. She said several work-related items were lost when the computer was damaged, and this cost her "significant time and money."
Plaintiff identified the lost items as: vendor lists, the original business plan, photos and sketches of jewelry designs, photos of the work of other jewelry designers, and her "main client list." Plaintiff claimed that the time spent compiling the lost "information" was worth "significantly more than" the amount awarded for the computer.
Plaintiff also stated that she lost several photos of unique jewelry designs from around the world, which she would have used "for inspiration in [her] future designs." Plaintiff said that, as a result of the damage to the computer, she would "never be able to compile these photos as they were one of a kind designs from around the world."
In addition, plaintiff stated that she also lost several personal items that had been stored on the computer. These items included family and vacation photos, photos of her dogs, and downloaded movies and music. She said that the value of these items was not ascertainable, but to her, they were "priceless."
The judge considered the motion on October 11, 2013. The judge rejected defendant's contention that the award for plaintiff's damaged computer was excessive. The judge said that it was reasonable to award plaintiff the replacement cost because, if plaintiff were to purchase a used computer, it was possible that the computer might be infected with a virus that could "endanger" the purchaser's data or privacy.
At the argument on the reconsideration motion, the judge erroneously stated that "[plaintiff] went out and bought a replacement computer, the same type [of] [computer] for [$1640]." In fact, at the hearing, plaintiff testified that she could not replace the computer because it was too expensive. Plaintiff did not submit evidence of the cost of replacing the computer; rather, she submitted an e-mail receipt from the computer manufacturer, which indicated that she had paid $1616 for the original computer in 2008.
The judge stated that defendant had not provided any basis for assuming that the value of the damaged computer at the time of loss was $350. The judge also said that, when the computer was damaged, plaintiff lost "five years" of data, which included documents she had prepared, personal business records, and family photos.
The judge said that "all those things [are] gone and unrecoverable." He stated that obtaining a "refurbished" computer does not compensate plaintiff "for that." The judge concluded that "the best and simplest way to compensate" plaintiff for her loss "would be simply to allow . . . her to go out and buy a new [computer][.]" Therefore, the judge denied defendant's motion for reconsideration. This appeal followed.
Defendant argues that the trial court erred by awarding plaintiff the full replacement value of the damaged computer rather than damages based upon the value of the computer at the time the damage occurred.
"[G]enerally the measure of damages for the negligent destruction of personal property is the difference between its market value before and after the injury." Hyland v. Borras, 316 N.J. Super. 22, 24-25 (App. Div. 1998) (citations omitted). However, "that rule will not necessarily apply" with regard to some personal property "where the market value cannot be ascertained[.]" Id. at 25 (citing Lane v. Oil Delivery, Inc., 216 N.J. Super. 413, 419 (App. Div. 1987)).
Here, the judge apparently intended to award plaintiff damages for the loss of her computer based on the cost to replace it, but awarded damages based on the cost of the original computer. It is undisputed that plaintiff purchased the computer five years before it was damaged. Plaintiff presented no evidence showing the replacement cost or the market value of the computer as of the time it was damaged.
We note that, in his decision on the reconsideration motion, the judge commented that "used" computers were available for sale on certain internet websites, and that "refurbished" computers were available from "reputable dealers[.]" The judge's comments suggests that information is available from which the market value of plaintiff's computer at the time of loss could reasonably be determined.
In addition, in his decision on the reconsideration motion, the judge stated that the damage award of $1616 for the computer could also be justified because plaintiff lost certain business and personal data when the computer was damaged. Although plaintiff testified that she lost the data that had been stored on the computer, she did not specify with any particularity what that data consisted of. An affidavit submitted in response to a motion for reconsideration was not an appropriate means to supplement the record.
We note that defendant has not challenged the part of the judgment awarding plaintiff damages for her damaged rug. Accordingly, we affirm that part of the judgment, and reverse the part of the judgment awarding damages to plaintiff for her damaged computer.
We remand the matter to the trial court for further proceedings. On remand, the court shall reconsider and determine the amount of damages, if any, that should be awarded to plaintiff for the loss of her computer. Plaintiff shall have the burden of showing the difference between the market value of the computer before and after the loss. Lane, supra, 216 N.J. Super. at 420.
Furthermore, in its discretion, the court may reopen the record and allow plaintiff to testify about the data lost when the computer was damaged. Plaintiff shall have the burden of proof in identifying the lost data and in establishing the value, if any, that the data had at the time of its loss, and whether the loss is compensable. See id. at 419 (noting that when the market value of certain personal property cannot be determined, damages for the loss of the property may be based on the property's "actual or intrinsic value . . . excluding [its] sentimental or fanciful value") (citations omitted).
Affirmed in part, reversed in part and remanded to the trial court for further proceedings in accordance with this opinion. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION