SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4990-18T2

TONI-ANN ATTANASIO

and ROBERT ATTANASIO,

Plaintiffs-Respondents,

v.

CARLA VARNER,

Defendant-Appellant.

__________________________

Submitted November 5, 2020 – Decided

Before Judges Accurso and Enright.

On appeal from the Superior Court of New Jersey, Law 

Division, Union County, Docket No. DC-012791-18.

Carla Varner, appellant pro se.

Respondents have not filed a brief.

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.

December 10, 2020
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Defendant Carla Varner appeals from a June 3, 2019 judgment in favor of 

plaintiffs Toni Ann Attanasio and Robert Attanasio. We vacate the judgment 

and remand for further proceedings.

Defendant was a tenant in a three-family home in Elizabeth in July 2017 

when plaintiffs purchased the home and assumed defendant's lease. In January 

2018, plaintiffs asked defendant to pay rent for that month. Defendant refused, 

claiming she had prepaid the January 2018 rent to the previous landlord.

Plaintiffs commenced an eviction action against defendant. It was 

dismissed as retaliatory. According to defendant, after the dismissal of this suit, 

plaintiffs "escalated their attempt to make [her] move." In May 2018, plaintiffs 

filed a notice to quit and demand for possession of defendant's apartment, 

alleging they wished to personally occupy the premises. Defendant claims that 

after she received the notice to quit, plaintiffs shut off her electricity, "allowed 

a sewage leak to persist" in her home, and refused to have the apartment 

exterminated, despite the fact it was infested with insects. Further, defendant 

contends that when she complained to plaintiffs about her poor living conditions, 

they "refused to fix anything." She hired a contractor to assess water damage to 

her apartment, who purportedly confirmed this damage caused mold to grow 

inside her apartment. 
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In August 2018, plaintiffs again moved to evict defendant, alleging she 

was three months behind in rent. They obtained a judgment for possession by 

default as defendant was unable to pay the outstanding rent to litigate the 

matter.1 The following month, plaintiffs filed an action in the Law Division, 

seeking payment of back rent, late fees, counsel fees and additional costs for 

which they claimed defendant was responsible. Even though defendant filed an 

answer and counterclaim in this action and the trial was adjourned once at her

request, plaintiffs obtained a default judgment against defendant when her

subsequent request for an adjournment was denied. Defendant successfully 

moved to vacate the default judgment and the matter was tried in June 2019. 

The parties, as well as a bank representative subpoenaed by defendant,

testified at trial. Importantly, during the trial, defendant testified she had a 

"habitability issue" during her tenancy but was unable to present this defense

during the prior summary dispossess action because she "didn't have all of the 

1

 The summary dispossess statute, N.J.S.A. 2A:18-51 to -61, provides landlords 

with a quick and simple remedy for possession. Carr v. Johnson, 211 N.J. Super. 

341, 347 (App. Div. 1986). It is designed to secure enforcement of a tenant's 

rental obligation in actions for nonpayment of rent. Hous. Auth. of Morristown 

v. Little, 135 N.J. 274, 281 (1994). To that end, a tenant can secure a termination 

of the action by depositing the rent at any time before the end of the court day 

on which judgment is entered. Stanger v. Ridgeway, 171 N.J. Super. 466, 473 

(App. Div. 1979).
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[rent] money" to permit her to advance this defense. The judge responded, 

"Well, you didn't raise that before the [trial judge in the prior action] . . . to get 

an abatement, you had to do that at the landlord-tenant matter. You can't do that 

now." The judge also stated he would not "second-guess" the basis for 

defendant's prior eviction, namely "nonpayment of rent," explaining, "[i]t's 

what's known as a rule - - it's known as res judicata, collateral estoppel."

Upon completion of the trial, the judge determined defendant owed 

plaintiffs $3050. He arrived at this figure by finding she was responsible for 

$3300 in back rent plus $1400 in repairs, less a credit of $1650, representing the 

sum of her security deposit, which plaintiffs retained. The judge disallowed 

plaintiffs' request for counsel fees, late fees and other costs. 

On appeal, defendant presents the following arguments for our 

consideration:

POINT I

THE COURT[']S PRESUMPTION THAT 

A SUMMARY DISPOSSESSION 

PRECLUDES THE DEFENDANT FROM 

A SUBSEQUENT SUIT DENIED THE 

DEFENDANT RELIEF. (Raised Below).

A. IN A SUBSEQUENT SUIT A 

RETROACTIVE RENT ABATEMENT 

CAN BE GRANTED AND DEDUCTED 

FROM BACK RENT OWED IF 
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HABITIBILITY ISSUES ARE PRESENT. 

(Raised Below).

B. THE DEFENDANT[']S 

EXPENDITURE IS CONSIDERED A 

REPAIR [ ] AND IS ELIGIBLE TO BE 

DEDUCTED FROM THE RENT. (Raised 

Below).

C. RES JUDICATA AND COLLATERAL 

ESTOPPEL IMPROPERLY APPLIED TO 

SUBSEQUENT HEARING. (Raised 

Below).

POINT II

THE COURT EXCLUDING RELEVANT 

EVIDENCE AND NOT APPLYING 

MANDATORY DOUBLE DAMAGES 

RESULTED IN MISCALCULATION OF 

SECURITY DEPOSIT. (Raised Below)

A. FAILURE TO APPLY THE 

MANDATORY DOUBLE DAMAGES 

RESULTED IN MISCALCULATION OF 

AMOUNT AWARDED. (Raised Below)

B. THE DEFENDANT[']S SECURITY 

DEPOSIT WAS WRONGFULLY 

WITHHELD AND ENTITLED TO 

DOUBLING. (Raised Below)

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 
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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)

(citations omitted); Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 

N.J. 474, 484 (1974).

Regarding Point I, we note as a threshold matter that a landlord's covenant 

of habitability and a tenant's covenant to pay rent are mutually dependent on one 

another. Berzito v. Gambino, 63 N.J. 460, 469 (1973). If a tenant gives 

reasonable notice of defects or damages that would breach the covenant of 

habitability, the tenant may either make the necessary repairs or leave the 

premises, resulting in a constructive eviction. Marini v. Ireland, 56 N.J. 130, 

146-47 (1970). In order to breach the covenant of habitability, "[t]he condition 

complained of must be such as truly to render the premises uninhabitable in the 

eyes of a reasonable person." Berzito, 63 N.J. at 469.

When a tenant defaults by not paying rent, the tenant retains the right in a 

landlord-tenant matter to assert the defense that the landlord breached the 

covenant of habitability. Marini, 56 N.J. at 140. Here, the trial judge presiding 

over plaintiffs' collection action for back rent, counsel fees and costs did not 

allow defendant the opportunity to prove plaintiffs breached the covenant of 

habitability. The record suggests the judge precluded defendant from asserting 
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this defense due to an apparent belief she was procedurally barred. We are 

persuaded the judge was mistaken in this regard.

Although defendant was unable to pursue her defense of plaintiffs' breach 

of the covenant of habitability in the summary dispossess action, due to her 

inability to post outstanding rent before that action concluded, she retained the 

right to raise her habitability claims in the subsequent Law Division case . 

Indeed, as the Berzito Court plainly stated, "in an action by a landlord for unpaid 

rent a tenant may plead, by way of defense and set off, a breach by the landlord 

of [the] continuing obligation to maintain an adequate standard of habitability." 

Berzito, 63 N.J. at 469. Additionally, 

a tenant may initiate an action against his [or her] 

landlord to recover either part or all of a deposit paid 

upon the execution and delivery of the lease or part or 

all of the rent thereafter paid during the term, where 

[the tenant] alleges that the lessor has broken [the] 

covenant to maintain the premises in a habitable 

condition.

[Ibid.]

Guided by these principles, we are convinced that because defendant's 

habitability defense was not adjudicated in the summary dispossess action, she 

was free to raise this defense in plaintiffs' subsequent action to recover unpaid 

rent and other costs. 
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Given our determination regarding Point I, we need not extensively 

discuss defendant's Point II. We note N.J.S.A. 46:8-21.1 provides in relevant 

part:

Within 30 days after the termination of the tenant’s 

lease or licensee’s agreement, the owner or lessee shall 

return by personal delivery, registered or certified mail 

the sum so deposited plus the tenant’s portion of the 

interest or earnings accumulated thereon, less any 

charges expended in accordance with the terms of a 

contract, lease, or agreement . . . . The interest or 

earnings and any such deductions shall be itemized and 

the tenant, licensee, executor, administrator or 

surviving spouse notified thereof by personal delivery, 

registered or certified mail.

. . . .

In any action by a tenant . . . [or] licensee . . . for the 

return of moneys due under this section, the court upon 

finding for the tenant . . . [or] licensee . . . shall award 

recovery of double the amount of said moneys, together 

with full costs of any action, and in the court’s 

discretion, reasonable attorney's fees.

This statute exists to “protect tenants from overreaching landlords who 

seek to defraud tenants by diverting rent security deposits to their own use.” 

Jaremback v. Butler Ridge Apartments, 166 N.J. Super. 84, 87 (App. Div. 1979) 

(citing Watson v. Jaffe, 121 N.J. Super. 213, 214 (App. Div. 1972)). "The 

'moneys' referred to represent the net amount due to the tenant for the security 

deposit and interest 'less any charges expended [by the landlord] in accordance 
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with the terms' of the lease." Ibid. (quoting N.J.S.A. 46:8-21.1). "[I]f there is 

no net balance due to the tenant there is no 'finding for the tenant' and there are 

no 'moneys' which can be doubled as the statutory penalty." Id. at 88. 

Here, the judge found that plaintiffs provided defendant with the 

necessary itemization of the costs deducted from defendant's security deposit 

within the thirty-day period required by statute. However, because defendant 

was precluded from testifying about her habitability claims, we cannot discern 

whether she was entitled to relief under N.J.S.A. 46:8-21.1. Accordingly, 

defendant's claims under this statute must abide the remand hearing.

To the extent we have not addressed defendant's remaining arguments, we 

are satisfied they are without sufficient merit to warrant discussion in a written 

opinion in light of our order that the case be re-tried. R. 2:11-3(e)(1)(E).

The $3050 judgment is vacated, and this matter is remanded for further 

proceedings consistent with this opinion. We do not retain jurisdiction.