                        NOT FOR PUBLICATION WITHOUT THE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.



                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-0886-15T3


JOHN CURRENCE,

        Plaintiff-Respondent,

v.

OVERLOOK TERRACE URBAN
RENEWAL CORPORATION,

     Defendant-Appellant.
__________________________

              Submitted March 1, 2017 – Decided August 22, 2017

              Before Judges Simonelli and Gooden Brown.

              On appeal from the Superior Court of New
              Jersey, Law Division, Hudson County, Docket
              No. DC-5206-15.

              Kiczek   &  Rachinsky   LLC,  attorneys for
              appellant (John J. Rachinsky and Nicole C.
              Tomlin, of counsel and on the briefs).

              Walter D. Nealy, attorney for respondent.

PER CURIAM

        Defendant     Overlook      Terrace     Urban    Renewal     Corporation

(Overlook) appeals from a September 11, 2015 Law Division order,
which dismissed its counterclaim against plaintiff John Currence.

We reverse and remand for further proceedings.

       We derive the following facts from the record.           Plaintiff and

his   wife   are    tenants   in   a   low-income    housing   unit   owned       by

defendant.       In March 1973, plaintiff and defendant executed a

lease that is governed by the New Jersey Housing and Mortgage

Finance Agency Act (NJHMFA), N.J.S.A. 55:14K-1 to -93, and the

rules and regulations of the New Jersey Housing and Mortgage

Financing Agency (Agency), N.J.A.C. 5:80-1.1 to -33.38.               The lease

required plaintiff to comply with NJHMFA and the Agency's rules

and regulations, and failure to do so is deemed a default under

the lease.

       To remain eligible for the low-income unit, plaintiff had to

recertify family income.           N.J.A.C. 5:80-20.5(a).       To recertify,

the lease required that plaintiff "upon request of the [l]andlord,

supply [l]andlord with such verification of annual income as may

be    required     by   [l]andlord     and   the   Agency,   breach   of     which

obligation shall be deemed a default hereunder."                      The lease

provides that failure to commence recertification within five days

and "prosecute such recertification to completion with the utmost

diligence to the satisfaction of the [l]andlord" is deemed a

default under the lease.



                                         2                                 A-0886-15T3
     Plaintiff also had to comply with N.J.A.C. 5:80-20.3(a),

which provides as follows:

          Each family applying for admission to or
          occupying an income-restricted unit within a
          housing project shall provide information and
          documentation   which    verifies,   to   the
          satisfaction of the Agency, gross aggregate
          family income.   The documentation which the
          Agency shall require families to submit to
          housing sponsors may include but is not
          necessarily limited to:

          1.   A copy of the first page of their most
          recent Federal income tax return, or a signed
          certification stating that no tax return was
          filed;

          2.   Permission for the Agency and Housing
          Sponsor to contact the Internal Revenue
          Service [IRS] for additional information which
          is necessary to verify gross aggregate family
          income and/or copies of the first page of a
          family's income tax returns;

          3.    Verification of employment;

          4.   Check stubs from employers, pensions,
          annuities, social security, unemployment,
          public assistance and workers' compensation;

          5.   A copy of any court order for alimony
          and/or child support;

          6.   Confirmation of income from assets (for
          example, bank statements).

     A landlord must notify the family "in writing not more than

100 days and not less than 91 days prior to expiration of a

family's lease, that they must recertify family income."   N.J.A.C.

5:80-20.5(c).   N.J.A.C. 5:80-20.6 provides that a family who fails

                                 3                          A-0886-15T3
to recertify after receiving notification "shall be subject to

imposition    of   surcharges   pursuant      to   N.J.A.C.   5:80-20.8,"      or

eviction   pursuant    to   N.J.A.C.       5:80-20.9.    (Emphasis      added).

N.J.A.C.     5:80-20.8(b)    provides       that   families   subject     to    a

surcharge for failing to complete the recertification process

"shall be surcharged with the maximum outlined in [N.J.A.C. 5:80-

20.8(c).]"    (Emphasis added).    N.J.A.C. 5:80-20.8(c) provides that

the maximum surcharge rate is thirty percent of the base unit

rent.

     Plaintiff's lease was up for renewal in March 2014.                       On

January 15, 2014, defendant sent plaintiff a notice requiring him

to recertify family income and provide copies of twelve specific

items within thirty days, including: driver's license or proper

I.D. and Social Security card for all occupants; most recent PSE&G

bill; W-2 form; three consecutive pay stubs; current checking and

savings account bank statement; and IRS Form 1099.                The notice

also required plaintiff to contact defendant if he owned a business

and/or other assets.1       Plaintiff did not comply.         On February 18,

2014, defendant sent plaintiff a second notice, which was identical

to the first notice.




1
  Plaintiff does not dispute that he received the notice required
by N.J.A.C. 5:80-20.5(c).

                                       4                                A-0886-15T3
      Plaintiff did not comply with the second notice. As a result,

on   March   18,   2014,   defendant   sent   plaintiff   a   final    notice

requiring him to provide copies of the requested documents within

five days, and advising him that failure to comply by March 23,

2014, would result in imposition of a thirty percent surcharge as

of April 1, 2014.      All three notices advised plaintiff to "bring

all documents together at once [landlord] will not accept your

documents if the same are not complete."

      Plaintiff's monthly base rent was $1538.        On March 27, 2014,

defendant sent plaintiff a notice that he failed to complete the

recertification process and his rent would increase by a thirty

percent surcharge of $458, effective March 27, 2014, for total

rent of $1986 per month.        Plaintiff admitted that defendant was

entitled to a surcharge if it did not receive the requested

documents, and he paid the surcharge assessed for April, May, and

June 2014.    He never argued, as he improperly does for the first

time on appeal, that there was no evidence the Agency approved the

surcharges.

      Plaintiff claimed that on June 27, 2014, he delivered copies

of his and his wife's driver's licenses, Social Security cards,

bank statements, and IRS Form 1099 to Nelandy Quinones, a full-

time recertification clerk in defendant's management office, but



                                       5                              A-0886-15T3
admitted he submitted a new bank account statement after June

2014.   There was no evidence he submitted a W-2 form or paystubs.

     Quinones testified that prior to November 2014, plaintiff

never personally delivered to her the documents required for his

recertification.    She also testified that in her capacity as

recertification clerk, she never had all of the necessary documents

for plaintiff's recertification prior to November 2014.

     Defendant's property manager, Laura Swift, testified that by

June 2014, plaintiff had only provided the IRS Form 1099 and his

and his wife's driver's licenses, which were expired.         Swift

testified that although plaintiff provided copies of the Social

Security cards and driver's licenses for past recertifications,

the Agency required new copies for every recertification.        She

also testified that the expired driver's licenses were not valid

forms of identification, and plaintiff did not submit his current

bank statements, W-2 form, or information that he no longer had

the business he had listed in a prior recertification.

     Swift testified plaintiff was not assessed any surcharge

after November 2014 because he finally submitted all the documents

required to complete his recertification.   She also testified that

plaintiff owed a surcharge of $458 for July, August, September,

October, and November 2014, but calculated the amount owed as



                                 6                          A-0886-15T3
$3017.     It is unclear from the record whether this amount also

included late charges.

     On    October   9,   2014,    defendant   sent    plaintiff     a    notice

requiring him to provide copies of the twelve specific items listed

in the prior notices within five days.            The notice also advised

plaintiff that failure to comply by October 16, 2014 would result

in a continued imposition of the thirty percent surcharge.

     Plaintiff paid his base rent, but did not pay the surcharges

for July, August, September, October, and November 2014.                        In

December 2014, defendant filed a complaint against plaintiff,

seeking possession for non-payment of rent.             On March 30, 2015,

defendant voluntarily dismissed the complaint without prejudice

pursuant to Rule 4:37.            Thereafter, plaintiff instituted the

present action against defendant, alleging malicious prosecution.

Defendant counterclaimed for $3017 for the unpaid surcharges for

July, August, September, October, and November 2014.

     The    trial    judge   found   no   cause   of   action   as       to   the

counterclaim and dismissed it with prejudice.2             In a brief oral

opinion, the judge found there was no evidence the Agency required

a surcharge, and the lease contained no provision that failure to



2
  The judge also found no cause of action as to the complaint and
dismissed it with prejudice.   Plaintiff does not challenge the
dismissal.

                                      7                                  A-0886-15T3
pay a surcharge constituted a breach.         The judge also found that

defendant only provided proof of two surcharges of $458 each,

which did not equal $3017.     On appeal, defendant argues that the

record did not support the judge's findings.

     Our review of a trial court's fact-finding in a non-jury case

is limited.    Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150,

169 (2011).   "The general rule is that findings by the trial court

are binding on appeal when supported by adequate, substantial,

credible evidence."      Ibid. (citation omitted).           We "should not

disturb the factual findings and legal conclusions of the trial

judge unless [we are] convinced that they are so manifestly

unsupported by or inconsistent with the competent, relevant and

reasonably    credible   evidence   as   to   offend   the    interests    of

justice." Ibid. (citations omitted). However, we owe no deference

to a trial court's interpretation of the law, and review issues

of law de novo.       State v. Parker, 212 N.J. 269, 278 (2012);

Mountain Hill, L.L.C. v. Twp. Comm. of Middletown, 403 N.J. Super.

146, 193 (App. Div. 2008), certif. denied, 199 N.J. 129 (2009).

"[F]or mixed questions of law and fact, we give deference under

[Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J.

474, 483-84 (1974)] to the supported findings of the trial court,

but review de novo the lower court's application of any legal



                                    8                               A-0886-15T3
rules to such factual findings."       State v. Harris, 181 N.J. 391,

416 (2004) (Citation omitted).

      The Agency's rules and regulations govern the lease, and the

lease required plaintiff to comply with them.        Plaintiff failed

to comply with the Agency's regulations regarding recertification

of his family's income and was assessed surcharges.        Contrary to

the   judge's   finding,   the   Agency's   regulations   require   the

imposition of a thirty percent surcharge for a family who fails

to recertify after receiving notification.        See N.J.A.C. 5:80-

20.6; N.J.A.C. 5:80-20.8(b) and (c).        Plaintiff did not dispute

this mandatory surcharge requirement and, in fact, paid surcharges

for failing to recertify in April, May, and June 2014.      The record

does not support his claim that he submitted all required documents

by June 24, 2014.    Rather, the record confirms he did not submit

valid driver's licenses, all current bank statements, W-2 forms,

or information that he no longer owned the business he had listed

in a prior recertification until November 2014.     Plaintiff did not

complete the recertification process until after November 2014,

and thus, was properly assessed surcharges for July, August,

September, October, and November 2014.

      Also contrary to the judge's finding, the failure to pay a

surcharge constituted a breach of the lease.       The lease required

plaintiff to pay base rent "plus any and all surcharges made

                                   9                           A-0886-15T3
. . . pursuant to the Law[.]"       Surcharges are deemed to be

additional rent under the lease, and the lease required plaintiff

to "pay the rent and any and all additional rent in equal monthly

installments[.]"   Plaintiff failed to pay the surcharges, and

thus, breached the lease.

     Lastly, the judge found, incorrectly, that defendant only

provided proof of two surcharges.   Swift testified that plaintiff

owed surcharges for July, August, September, October, and November

2014, but incorrectly calculated $3017 as the amount due.         On

remand, the trial court must ascertain the correct amount owed,

and enter judgment in defendant's favor in that amount.

     Reversed and remanded for further proceedings consistent with

this opinion.   We do not retain jurisdiction.




                               10                          A-0886-15T3
