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Kousmine v. Bostic

A-4533-06T3 (N.J. Super. App. Div. 2008) (Unpublished)

ZONING; VARIANCES — It would defeat the purpose of a zoning ordinance if a use variance were granted to one property owner for reasons that any other property owner could use to apply for the same use variance.

A property owner hired a contractor to make certain repairs and renovations to its property. The total cost of the project was five thousand dollars, one thousand of which was paid at the beginning of the job. An additional $3,500 was paid out incrementally as portions of the job were completed. Little more than one month after the project began, the parties had a disagreement over the quality of the contractor’s work. The contractor was ordered off the premises and the following day the owner paid an additional amount of roughly $3,000 to workers who were hired to complete the project. One of the workers was the contractor’s assistant.

The owner sued the contractor for breach of contract and consumer fraud. The contractor brought a small claims complaint against the owner for the remaining $500 balance under the agreement and also sought $2,500 in damages for the contractor’s voicing of a racial epithet. Both matters were consolidated and heard by the lower court. The owner introduced photographic evidence in support of her claims and documented the additional expenses incurred after the contractor was ordered off the property. The contractor’s assistant and another worker testified that the owner ordered the contractor off the property and threatened to call the police if he didn’t leave. The contractor argued that the owner exaggerated her claims of the inadequacy of his work.

The lower court denied the owner’s damage claim. It considered the contractor’s assistant’s testimony to have been credible and awarded the contractor the remaining $500 under the contract. Before the lower court decided on the owner’s consumer fraud claims, the contractor asserted that the owner’s consumer fraud complaint was rendered moot by the lower court’s determination that she suffered no ascertainable loss. The lower court, however, delayed its finding on the consumer fraud complaint for one week so that the owner could submit a brief on the matter. The owner never filed the brief, but subsequently motioned for reconsideration of the lower court’s determination. The owner’s motion was denied.

On appeal, the Appellate Division agreed with the lower court, finding that by summarily ordering the contractor to permanently leave the premises, the owner denied the contractor the opportunity to remedy the parts of the job that the owner found unsatisfactory. On that basis, it found that since the owner prevented the contractor from completing the job under the terms of the contract, she could not receive damages for non-performance on the contractor’s part. The Court then found that the owner failed to act during the one-week extension to submit a brief and, as a result, she was not allowed to raise the matter on reconsideration and had also waived her claim. The lower court’s denial of the owner’s motion for reconsideration was affirmed.


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