                                NOT FOR PUBLICATION WITHOUT THE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-1656-18T1

DORIS CANALES,

       Plaintiff-Respondent,

v.

YUE YU,

       Defendant/Third-Party
       Plaintiff-Appellant,

v.

CHARLES HAYWOOD and
YVONETTE SWINGER,

     Third-Party Defendants-
     Respondents.
__________________________

                Submitted January 21, 2020 – Decided March 4, 2020

                Before Judges Fasciale and Mitterhoff.

                On appeal from the Superior Court of New Jersey,
                Law Division, Bergen County, Docket No. L-2779-16.

                Yue Yu, appellant pro se.
            Northeast New Jersey Legal Services, attorneys for
            respondent Doris Canales (Lawrence E. Sindoni and
            Christine M. Ricardo, of counsel and on the brief).

PER CURIAM

      Defendant Yue Yu appeals pro se from several orders related to plaintiff

Doris Canales' action for the return of her security deposit and defendant's

counterclaim for damage to the residential property she leased to plaintiff and

third-party defendants Yvonette Swinger and Charles Haywood. Plaintiff and

third-party defendants (collectively, tenants) rented the first floor of a

residential property owned by defendant.     The parties' relationship quickly

became acrimonious, as tenants complained that defendant failed to make

requested repairs, while defendant complained that tenants damaged the

property and failed to make timely rent payments. Eventually, the parties

agreed that tenants would vacate the property, and upon their doing so,

defendant notified them that she was not returning their security deposit

because they had damaged the property.

      Plaintiff filed a pro se small claims complaint seeking the return of the

security deposit. Defendant filed a counterclaim, seeking damages of $20,000.

The jury ultimately awarded defendant $2,328.38 for property damage, late

fees, lease violations, and loss of personal property.      Defendant appeals,

claiming that the judge made several errors, which denied defendant a fair trial



                                                                        A-1656-18T1
                                       2
and contributed to an award that was only a small fraction of the damages she

sought. Having reviewed the record, and in light of the applicable law, we

affirm.

                                       I.

        We discern the following facts from the record. In August 2014, tenants

signed a lease for the first-floor apartment of a residential property.     The

parties used a standard residential lease, which included the following

provision for damages:

             13. DAMAGES: The [t]enant is liable for all
             [l]andlord's damages caused by [t]enant's breach of
             this [l]ease. Such damages may include loss of rent,
             the cost of preparing the [p]roperty for re-renting,
             brokerage commission in finding a new tenant as a
             result of [t]enant's eviction or [t]enant mov[ing] out
             prior to the end of the [t]erm[,] as well as reasonable
             attorney's fees and court costs.

The lease included an addendum, addressing a tenant's recovery of attorney's

fees:

             IF THE TENANT IS SUCCESSFUL IN ANY
             ACTION OR SUMMARY PROCEEDING ARISING
             OUT OF THIS LEASE, THE TENANT SHALL
             RECOVER ATTORNEY'S FEES OR EXPENSES OR
             BOTH FROM THE LANDLORD TO THE SAME
             EXTENT THE LANDLORD IS ENTITLED TO
             RECOVER ATTORNEY'S FEES OR EXPENSES,
             OR BOTH AS PROVIDED IN THIS LEASE.




                                                                       A-1656-18T1
                                       3
A few months later, the parties executed another addendum, which allowed

tenants to have two dogs on the premises in exchange for payment of

additional rent and a security deposit.

      Thereafter, the parties' relationship became acrimonious.        Defendant

complained of problems with tenants' dogs, after the dogs defecated on the

carpet.   Tenants complained of several problems with the apartment's

condition, including a ceiling leak, a problem with the stove, clogged pipes,

and a roach infestation.    They claimed that defendant ignored their repair

requests, so they began withholding rent.       Consequently, defendant sought

relief in court, and the matter was resolved after tenants agreed to pay the rent.

      Despite the parties' poor relationship, defendant offered tenants a new

lease. In October 2015, the parties returned to court, after defendant filed a

complaint alleging that tenants again failed to pay rent. The parties executed a

consent order requiring tenants to vacate the property by November 30, 2015

and pay rent through that date. After tenants moved out, defendant sent them a

letter on December 31, 2015, informing them that she was not returning their

security deposit.   Defendant explained that tenants owed her $6385.31 for

property damage, late rent, lease violations, and lost rent for December 2015

and January 2016. On January 29, 2016, defendant sent tenants another letter,




                                                                          A-1656-18T1
                                          4
claiming the amount due was now $7110.31, since new tenants would not be

moving in until February 15, 2016.

      On February 12, 2016, plaintiff filed a pro se small claims complaint

seeking the return of the security deposit. Defendant filed a counterclaim

seeking damages of $20,000, alleging that tenants caused extensive property

damage, loss of rent, and loss of income from defendant's consulting business.

The case was then transferred to the Law Division. Defendant amended her

counterclaim and filed a third-party complaint, raising substantially the same

claims against third-party defendants. Plaintiff hired an attorney, Edania C.

Rondon, to represent her in this litigation.

      On August 31, 2016, after a hearing in the trial court, the judge awarded

plaintiff double the amount of the security deposit, under N.J.S.A. 46:8-21.1,

after finding that defendant failed to show that she properly withheld tenants'

security deposit. About a week later, defendant filed a motion to stay the order

pending appeal. She then filed a motion for a new trial and a motion for

reconsideration, but the judge denied both motions. On November 4, 2016, the

judge issued another order, requiring defendant to pay plaintiff attorney's fees,

as plaintiff had prevailed at the August 31 hearing. On the same day, the judge

also granted defendant's motion to stay the August 31 and November 4 orders ,

pending appeal.



                                                                        A-1656-18T1
                                         5
      On January 8, 2018, this court reversed the denial of defendant's motion

for reconsideration, vacated the August 31 and November 4 orders, and

remanded the matter for a case management conference to address discovery

matters and to schedule a new trial before a different judge. Canales v. Yu,

No. A-1345-16 (App. Div. Jan. 8, 2018) (slip op. at 13-14). We reasoned that

during the August 31 hearing, the judge did not permit the parties to "introduce

testimony and documentary proof concerning their damages, subject to

meaningful cross-examination in 'a manner that complies with [the] required

formality' for trials." Ibid. (alteration in original) (quoting N.J. Div. of Youth

& Family Servs. v. J.Y., 352 N.J. Super. 245, 264 (App. Div. 2002)).

      On March 22, 2018, defendant filed a motion for leave to amend the

counterclaim and third-party complaint.        She sought to name plaintiff's

attorney, Rondon, as a third-party defendant and intended to seek relief for

"financial loss, cost and expenses and emotional distress and injuries."

Specifically, defendant alleged that Rondon filed plaintiff's complaint,

knowing there was no evidence to support the claims, and she made several

false statements to the court.     Judge Christine A. Farrington, the newly

assigned judge, denied the motion.

      Defendant filed a motion for reconsideration. Judge Farrington denied

the motion, as defendant failed to show that the judge's denial of the motion



                                                                         A-1656-18T1
                                        6
for leave to amend the pleadings "was palpably incorrect on the facts or law or

that the court did not appropriately consider or appreciate evidence."

      Between the filing of the motion for reconsideration and the judge's

decision, Rondon withdrew as counsel for plaintiff. Nonetheless, defendant

further attempted to involve Rondon in this matter. On August 19, 2018,

defendant personally served a subpoena ad testificandum on Rondon at her

residence. On September 5, 2018, Judge Farrington issued an order quashing

the subpoena for improper service. Relying on Rule 4:4-4 and Rule 4:4-3, the

judge explained that because defendant had a direct interest in the litigation,

she was required to serve a non-party through an individual with no direct

interest in the litigation.

      On September 11, 2018, Judge Farrington held a final pre-trial hearing.

Defendant raised several issues, including the denial of her motion to amend

the pleadings.    The judge explained that "the proposed amendment lacked

merit because it sought the addition of the prior attorney of a party."

      Judge Farrington then held a four-day jury trial during September 2018.

The jury heard testimony from third-party defendant Swinger, defendant, and a

real estate broker. Near the end of defendant's testimony, the judge asked her

to identify any additional expenses for which she sought reimbursement.

Defendant identified filing fees paid to respond to plaintiff's lawsuit, certified



                                                                          A-1656-18T1
                                        7
mailing fees, and other postage items. Plaintiff stipulated to the amounts for

these items, so the judge informed defendant that there was no need to testify

as to the amounts. Defendant also identified costs for copying, printing, and

binding. The judge explained that "[t]he [c]ourt will consider this by way of

[taxed court] costs . . . in accordance with the rule but it's not admissible for

purposes of jury consideration."

      At the end of the trial, the jury returned a verdict in favor of defendant,

finding the following: Defendant did not wrongfully withhold tenants' security

deposit; tenants damaged defendants' property beyond normal wear and tear;

the cost of repairs incurred by defendant was $1803.38; defendant had no

notice of conditions affecting habitability of the property; tenants owed

defendant late fees for three months of late rent; tenants owed defendant fees

for dog lease violations; and tenants removed a $75 space heater that belonged

to defendant.

      On October 1, 2018, Judge Farrington issued an order requiring tenants

to pay defendant $2328.38 for property damage, late fees, lease violations, and

loss of personal property. On the same day, defendant wrote a letter to the

judge, objecting to the exclusion of $2637.85 in filing fees for the August 31,

2016 court proceeding; mailing expenses; and copying, printing, and binding

expenses related to the earlier appeal. On October 17, 2018, the judge wrote a



                                                                         A-1656-18T1
                                       8
letter to the parties, explaining that she would not consider the issue of costs :

"The issue regarding the lease [a]ddendum, and the fees it allegedly entitles

defendant to, was not submitted to the jury. Pursuant to Rule 4:42-8, the

[c]ourt will not consider [the issue of costs] by the way of objection to the

form of [o]rder, which has been entered." This appeal ensued.

      On appeal, defendant raises five points:

              I.   [THE] TRIAL COURT ERRED IN DENYING
                   [DEFENDANT'S]     MOTION      [FOR]
                   RECONSIDERATION [OF THE] MOTION
                   [FOR] LEAVE TO FILE A SECOND
                   AMENDED COUNTERCLAIM AND THIRD[-
                   ] PARTY COMPLAINT[.]

             II.   [THE]  TRIAL     COURT     ERRED  IN
                   QUASH[ING] DEFENDANT'S SUBPOENA
                   TO . . . RONDON TO APPEAR AS A
                   WITNESS   FOR     OR     DURING  THE
                   SEPTEMBER 11[,] 2018 [TRIAL.]

            III.   THE TRIAL COURT ERRED IN DENYING
                   [DEFENDANT]    THE   RECOVERY OF
                   EXPENSES AND COSTS BECAUSE THE
                   SIGNED LEASE GIVES THE WINNING
                   PARTY [THE] RIGHT TO RECOUP THE
                   COST[S] AND EXPENSES[.]

            IV.    THE TRIAL COURT PURPOSEFULLY
                   DENIED DEFENDANT'S RECOVERY OF
                   EXPENSES AND COST[S] WHEN THE
                   JUDGE STATED SHE WOULD DECIDE[],
                   THEN SHE DENIED THE RECOVERY
                   STATING THEY WERE NOT PRESENTED
                   TO [THE] JURY[.]



                                                                         A-1656-18T1
                                        9
             V.    [DEFENDANT] DID NOT HAVE A FAIR
                   TRIAL EVEN [THOUGH] THE JURY'S
                   VERDICT   WAS     IN    FAVOR    OF
                   [DEFENDANT] BECAUSE THE TRIAL
                   JUDGE ERRED IN ACTING AS AN AGENT
                   FOR PLAINTIFF AND THIRD[-]PARTY
                   DEFENDANT[S]   RATHER    THAN   AN
                   IMPARTIAL   JUDGE    AND    BARRED
                   DEFENDANT     FROM     [PRESENTING]
                   REBUTTAL EVIDENCE IN LIGHT OF
                   ADMITTING INADMISSIBLE EVIDENCE
                   BY PLAINTIFF AND THIR[D-]PARTY
                   DEFENDANT[S.]

                                        II.

      We first address the denial of defendant's motion for reconsideration of

her motion to amend the pleadings. We review the denial of a motion for

reconsideration for an abuse of discretion. Fusco v. Bd. of Educ. of Newark,

349 N.J. Super. 455, 462 (App. Div. 2002).

      A motion for reconsideration "shall state with specificity the basis on

which it is made, including a statement of the matters or controlling decisions

which counsel believes the court has overlooked or as to which it has erred."

R. 4:49-2. The judge should only grant this motion if "1) the [c]ourt has

expressed its decision based upon a palpably incorrect or irrational basis, or 2)

it is obvious that the [c]ourt either did not consider, or failed to appreciate the

significance of probative, competent evidence." Cummings v. Bahr, 295 N.J.




                                                                          A-1656-18T1
                                        10
Super. 374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super.

392, 401-02 (Ch. Div. 1990)).

      Defendant claims that the judge did not adequately state a reason for

denying her motion, as the order stated that the "[m]ovant fails to show that

the court's prior decision was palpably incorrect on the facts or law or that the

court did not appropriately consider or appreciate evidence." However, the

memorandum in support of defendant's motion for reconsideration merely

provided a lengthy recitation of the facts and a conclusory statement that the

underlying motion should have been granted "in the interest of justice."

Defendant failed to explain how the judge failed to consider relevant evidence

or why denial of the underlying motion was palpably incorrect.

      Although a more detailed explanation is desirable, Rule 1:6-2(f) requires

that a judge only "append to the order a statement of reasons" where

"explanation is either necessary or appropriate," and whether to provide such

an explanation is a decision left to the judge's discretion.     See Pressler &

Verniero, Current N.J. Court Rules, cmt. 7 on R. 1:6-2 (2020); DiMura v.

Knapik, 277 N.J. Super. 156, 159, 159-62 (App. Div. 1994) (affirming the

denial of a motion to amend the pleadings, where a judge gave no reasons for

the denial, because the plaintiff had known the "fictitious" defendants'




                                                                         A-1656-18T1
                                       11
identities for years or, alternatively, the plaintiff failed to properly identif y

fictitious defendants).

      To be sure that denial was appropriate, we consider the merits of the

underlying motion. Rule 4:9-1 governs amendments to the pleadings:

            A party may amend any pleading as a matter of course
            at any time before a responsive pleading is served or,
            if the pleading is one to which no responsive pleading
            is to be served, and the action has not been placed
            upon the trial calendar, at any time within [ninety]
            days after it is served. Thereafter a party may amend
            a pleading only by written consent of the adverse
            party or by leave of court which shall be freely given
            in the interest of justice.

Motions for leave to amend should be granted liberally, but the decision

"always rests in the [judge's] sound discretion." Notte v. Merchants Mut. Ins.

Co., 185 N.J. 490, 501 (2006) (quoting Kernan v. One Wash. Park Urban

Renewal Assocs., 154 N.J. 437, 456-57 (1998)). The judge must consider

"whether the non-moving party will be prejudiced, and whether granting the

amendment would nonetheless be futile." Ibid. Although motion for leave to

amend should be decided "without consideration of the ultimate merits of the

amendment," the judge must consider "the factual situation existing at the time

[the] motion is made." Ibid. (quoting Interchange State Bank v. Rinaldi, 303

N.J. Super. 239, 256 (App. Div. 1997)). Thus, the judge is "free to refuse




                                                                         A-1656-18T1
                                       12
leave to amend when the newly asserted claim is not sustainable as a matter of

law." Ibid. (quoting Interchange State Bank, 303 N.J. Super. at 256-57).

      A claim raised against another party's attorney may be unsustainable as a

matter of law. Loigman v. Twp. Comm. of Middletown, 185 N.J. 566, 579

(2006). The litigation privilege protects attorneys from civil liability for "any

communication (1) made in judicial or quasi-judicial proceedings; (2) by

litigants or other participants authorized by law; (3) to achieve the objects of

the litigation; and (4) that have some connection or logical relation to the

action." Id. at 585 (quoting Hawkins v. Harris, 141 N.J. 207, 216 (1995)).

      During the final pre-trial hearing, in explaining why the motion for leave

to amend was denied, the judge referred to the litigation privilege, as she

explained "the proposed amendment lacked merit because it sought the

addition of the prior attorney of a party." The judge correctly reached this

conclusion, as defendant's allegations with respect to Rondon only pertained to

the filing of plaintiff's complaint and statements that Rondon made in her

briefs and during court proceedings.        Because these communications were

made by plaintiff's attorney in her effort to represent plaintiff in the current

action, the litigation privilege would have barred defendant's claims.         See

Loigman, 185 N.J. at 585. Accordingly, the judge did not abuse her discretion




                                                                         A-1656-18T1
                                       13
in denying defendant's motion for reconsideration of the motion to amend the

complaint to name Rondon as a third-party defendant.

                                      III.

      We next address defendant's contention that the judge incorrectly relied

on Rule 4:4-4 and Rule 4:4-3 when she quashed the subpoena that defendant

served on Rondon. We review a trial judge's decision to quash a subpoena for

an abuse of discretion.      In re Subpoena Duces Tecum, 214 N.J. 147, 162

(2013).

      Rule 1:9 generally governs subpoenas. Rule 1:9-3 provides that "[a]

subpoena may be served by any person [eighteen] or more years of age . . . . by

delivering a copy thereof to the person named."          However, Rule 1:9-1

"requires service of a subpoena upon a non-party by personal service pursuant

to R[ule] 4:4-4." Pressler & Verniero, cmt. 1 on R. 1:9-1; cf. NJ Cure v. Estate

of Hamilton, 407 N.J. Super. 247, 250-51 (App. Div. 2009) (holding that

mailed service of a subpoena on a non-party rendered service ineffective for

failure to comply with Rule 4:4-4(a)). Rule 4:4-4(a) requires personal service,

and it incorporates Rule 4:4-3(a), which requires service "by the sheriff, or by

a person specially appointed by the court for that purpose, or by plaintiff's

attorney or the attorney's agent, or by any other competent adult not having a

direct interest in the litigation."



                                                                        A-1656-18T1
                                       14
      Defendant's contention that Rule 4:4-4 and Rule 4:4-3 do not apply

because they do not explicitly refer to subpoenas is without merit. Defendant

served Rondon by personally delivering the subpoena to Rondon's residence,

thereby failing to comply with Rule 4:4-3. Accordingly, the judge did not

abuse her discretion in quashing the subpoena for improper service.

                                       IV.

      We next address defendant's contention that the judge denied her request

for an award of costs and expenses. We review a decision as to an award of

costs for an abuse of discretion.      Children's Inst. v. Verona Twp. Bd. of

Adjustment, 290 N.J. Super. 350, 358 (App. Div. 1996).

      "Unless otherwise provided by law, these rules or court order, costs shall

be allowed as of course to the prevailing party."        R. 4:42-8(a). "A party

entitled to taxed costs shall file with the clerk of the court an affidavit stating

that the disbursements taxable by law and therein set forth have been

necessarily incurred and are reasonable in amount[.]" R. 4:42-8(c).

      Defendant failed to comply with the proper procedure to recover costs,

as she never filed an affidavit with the court clerk. See R. 4:42-8(c). The

judge's response to defendant's request informed her of this when the judge

cited to Rule 4:42-8 as the reason that she could not consider defendant's

request.   We add that defendant's contention that the judge erred by not



                                                                          A-1656-18T1
                                        15
allowing her to testify to the costs at trial is without merit. Costs are only

awarded to a prevailing party, so it would have been improper to allow

testimony as to costs before the jury verdict, as defendant was not yet a

prevailing party. See R. 4:42-8(a). Accordingly, the judge did not err in

declining to address the merits of defendant's request for costs.

                                       V.

      Finally, we address defendant's contention that the judge denied

defendant a fair trial by showing bias toward tenants. Defendant raises several

issues pertaining to both evidentiary rulings and the jury charge.

                                       A.

      Defendant claims that the judge showed bias when she allowed tenants

to admit several exhibits into evidence at trial and precluded defendant from

introducing photos of the subject property. We review evidentiary rulings for

an abuse of discretion. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202

N.J. 369, 383-84 (2010).

      Defendant lists several exhibits that she contends should not have been

admitted into evidence:      lease documents, emails about the apartment's

condition, tenants' letter notifying defendant of withheld rent, a health

department letter sent to defendant, consent to enter judgment against third -

party defendant Haywood, defendant's letter of recommendation for third-party



                                                                       A-1656-18T1
                                       16
defendant Haywood, defendant's letters notifying tenants of the withheld

security deposit, an eviction complaint, and defendant's letter regarding dog

lease violations.     Defendant acquiesced to the admission of all but one

document at trial. Further, defendant has provided no explanation as to why

admission of any of these documents was erroneous, and we perceive no

reason for the exclusion of any, as their admission was not "clearly capable of

producing an unjust result." R. 2:10-2.

         Additionally, defendant contends that the judge erred in refusing to

allow her to introduce hundreds of photos of the property at different periods

of time. Again, defendant has failed to provide any explanation as to why this

was error.     We perceive no abuse of discretion, as the judge had already

permitted the jury to see several photos of the property's condition on various

dates.

                                        B.

         Defendant further claims that the judge showed bias when she instructed

the jury on the warranty of habitability and the possibility that tenants could

receive an award of attorney's fees. In reviewing a jury charge, we "consider

the charge as a whole to determine whether the charge was correct." Toto v.

Ensuar, 196 N.J. 134, 144 (2008) (citing Viscik v. Fowler Equip. Co., 173 N.J.

1, 18 (2002)). The charge must "explain[] the applicable legal princip les,



                                                                        A-1656-18T1
                                        17
outline[] the jury's function, and spell[] out 'how the jury should apply the

legal principles charged to the facts of the case at hand.'"         Ibid. (quoting

Viscik, 173 N.J. at 18).

      With respect to a residential lease, a landlord is held to an implied

warranty of habitability. Marini v. Ireland, 56 N.J. 130, 144 (1970).

            [I]t is a covenant that at the inception of the lease,
            there are no latent defects in facilities vital to the use
            of the premises for residential purposes because of
            faulty original construction or deterioration from age
            or normal usage. And further it is a covenant that
            these facilities will remain in usable condition during
            the entire term of the lease. In performance of this
            covenant the landlord is required to maintain those
            facilities in a condition which renders the property
            livable.

            [Ibid.]

If a tenant alleges that a landlord has violated this covenant, the "tenant may

initiate an action against [the] landlord to recover either part or all of a deposit

paid." Berzito v. Gambino, 63 N.J. 460, 469 (1973). If the tenant proves that

the landlord did breach the covenant, "the tenant will be charged only with the

reasonable rental value of the property in its imperfect condition during [the]

period of occupancy," as long as the tenant "[gave] the landlord positive and

seasonable notice of the alleged defect" and "allow[ed] the landlord a

reasonable period of time to effect the repair or replacement." Ibid.




                                                                           A-1656-18T1
                                        18
      Here, tenants presented testimony that they requested that defendant

make repairs to conditions that they alleged affected the habitability of the

property, and the alleged failure to repair the conditions was tenants' reason for

withholding rent. Accordingly, the judge did not err in instructing the jury on

the implied warranty of habitability. We add that even if this instruction was

erroneous, the jury found that defendant did not breach the warranty, so the

jury charge was not "clearly capable of producing an unjust result." R. 2:10-2.

      With respect to the possibility of tenants receiving an award of attorney's

fees, defendant misinterprets the judge's instruction. The judge informed the

jury that if tenants prevailed, the judge had the discretion to award them

attorney's fees and that doing so was not a function of the jury. The lease

provided that tenants could recover attorney's fees if defendant was found to

have breached the lease, so even if tenants had ultimately succeeded at trial,

defendant could not claim that she is not bound by the terms of the parties'

contract. Again, we add that even if this instruction was erroneous, tenants

were unsuccessful in the action seeking return of their security deposit, so the

instruction was not "clearly capable of producing an unjust result." R. 2:10-2.

      To the extent that we have not addressed any of defendant's remaining

arguments, we conclude that they lack sufficient merit to warrant discussion in

a written opinion. R. 2:11-3(e)(1)(E).



                                                                         A-1656-18T1
                                         19
Affirmed.




                 A-1656-18T1
            20
