Elliot Gartenberg v. Hi View Partners LLC
CourtNew Jersey Superior Court Appellate Division
Date FiledNovember 4, 2026
DocketA-0935-25
StatusUnpublished
📰 News Coverage: Read the LAWS.com news report on this case
Full Opinion
NOT FOR PUBLICATION WITHOUT THE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-0935-25
ELLIOT GARTENBERG
and ERICA GARTENBERG,
Plaintiffs-Respondents,
v.
HI VIEW PARTNERS LLC,
Defendant-Appellant.
___________________________
Submitted September 30, 2026 – Decided November 4, 2026
Before Judges Marczyk and Puglisi.
On appeal from the Superior Court of New Jersey, Law
Division, Gloucester County, Docket No. SC-000415-
25.
Morris Starkman, attorneys for appellant (Morris
Starkman, on the brief).
Respondents have not filed a brief.
PER CURIAM
Following a bench trial, defendant Hi View Partners LLC appeals from a
November 5, 2025 order granting judgment in favor of plaintiffs Elliot
Gartenberg and Erica Gartenberg. We affirm.
I.
Plaintiffs leased an apartment from defendant from July 1, 2025 to June
30, 2026, with monthly rent of $1,780. The record does not indicate when
plaintiffs first occupied the apartment, but it appears they moved in prior to the
lease term.1 The third-floor apartment was cooled by a central air conditioning
unit (the central unit). During April 2025, plaintiffs reported the air
conditioning was not operating properly, and defendant subsequently serviced
the central unit.
On June 23, 2025, plaintiffs advised defendant even though "their
thermostat [was] set at [seventy-four degrees], . . . their unit kept going up near
[eighty degrees] and climbing." The next day, defendant called a heating,
ventilation, and air conditioning (HVAC) technician to examine the central unit.
The technician reported the central unit was operating at fifty-percent efficiency
and repairs would cost approximately $1,500. Instead of repairing the central
1
Although requested by the court and required by Rule 2:5-1(g), defendant did
not provide the transcript of the first day of trial.
A-0935-25
2
unit, defendant installed "three brand new window air conditioning system
units," one in each bedroom and one in the living room, in July 2025. The
window units were installed by partially opening a window, placing venting, and
sealing the venting with a "sticky foil metallic tape."
The apartment had two means of egress in case of emergency. In addition
to the front door, a fire escape was accessible through a window in plaintiffs'
daughter's bedroom. Because a window unit was placed in the egress window,
the fire escape could only be accessed by removing the tape and window unit.
On August 13, 2025, a local fire official issued a notice of violation
ordering the window unit blocking the fire escape be removed by September 10,
2025. Defendant did not remove the window unit until October 6, 2025.
Despite the simultaneous operation of the three window units, Elliot
Gartenberg testified "the apartment's temperature never cooled to less than
[eighty] degrees" during the summer heat waves. Occasionally, the high
temperature caused plaintiffs to temporarily stay with family, but they did not
permanently vacate the apartment.
Plaintiffs filed a complaint, later amended to substitute defendant,
alleging failure to repair, breach of contract, and uninhabitable living conditions,
including safety and electrical issues. After a two-day trial during which the
A-0935-25
3
foregoing information was elicited, the court entered judgment of $3,250 in
plaintiffs' favor.
The court reasoned because "there was only one means of egress and
ingress," the apartment "was for all intents and purposes uninhabitable" while
the window unit was installed in plaintiffs' daughter's bedroom. It also found
the apartment uninhabitable because plaintiffs were not provided adequate air
conditioning, with temperatures often reaching eighty-five degrees. Although
breach of the implied warranty of habitability could have justified full abatement
of the rent, the court found plaintiffs' continued enjoyment of the apartment
necessitated a reduction of the award.
On appeal, defendant contends: the trial court misapplied the implied
warranty of habitability; the punitive damages award was legally unsupported;
the damages award was improperly calculated; and the judgment rests on
speculation rather than competent evidence.
II.
We first address defendant's contention there was no material breach of
the implied warranty of habitability because the air-conditioning issue was
temporary, substitute air conditioning units were provided, and the township fire
prevention bureau cleared inspection concerns. "Final determinations made by
A-0935-25
4
the trial court sitting in a non-jury case are subject to a limited and well-
established scope of review." D'Agostino v. Maldonado, 216 N.J. 168, 182
(2013) (quoting Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169
(2011)). Appellate courts "give deference to the trial court that heard the
witnesses, sifted the competing evidence, and made reasoned conclusions."
Allstate Ins. Co. v. Northfield Med. Ctr., P.C., 228 N.J. 596, 619 (2017) (quoting
Griepenburg v. Twp. of Ocean, 220 N.J. 239, 254 (2015)). "Deference is
especially appropriate 'when the evidence is largely testimonial and involves
questions of credibility.'" Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting
In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). "That is so
because an appellate court's review of a cold record is no substitute for the trial
court's opportunity to hear and see the witnesses who testified on the stand."
Balducci v. Cige, 240 N.J. 574, 595 (2020).
Accordingly, "findings by the trial court are binding on appeal when
supported by adequate, substantial, credible evidence." Cesare, 154 N.J. at 411-
12. We "may not overturn the trial court's [factual findings] unless we conclude
that those findings are 'manifestly unsupported' by the 'reasonably credible
evidence' in the record." Balducci, 240 N.J. at 595 (quoting Seidman, 205 N.J.
at 169). "A trial court's interpretation of the law and the legal consequences that
A-0935-25
5
flow from established facts are not entitled to any special deference. "
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
When a landlord leases a residential property, there is an implied warranty
of habitability, which 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." Marini v. Ireland, 56 N.J. 130, 144 (1970). The warranty is "a
covenant that these facilities will remain in usable condition during the entire
term of the lease." Ibid. "In performance of this covenant the landlord is
required to maintain those facilities in a condition which renders the property
livable." Ibid. Under the warranty, "any act or omission of the landlord . . . ,
which renders the premises substantially unsuitable for the purpose for which
they are leased, or which seriously interferes with the beneficial enjoyment of
the premises, is a breach of the covenant of quiet enjoyment and constitutes a
constructive eviction of the tenant." Reste Realty Corp. v. Cooper, 53 N.J. 444,
457 (1969).
"As a prerequisite to maintaining such a suit, the tenant must give the
landlord positive and seasonable notice of the alleged defect, must request its
correction and must allow the landlord a reasonable period of time to effect the
A-0935-25
6
repair or replacement." Berzito v. Gambino, 63 N.J. 460, 469 (1973). However,
"[n]ot every defect or inconvenience will be deemed to constitute a breach of
the covenant of habitability. The condition complained of must be such as truly
to render the premises uninhabitable in the eyes of a reasonable person." Ibid.
See Park Hill Terrace Assocs. v. Glennon, 146 N.J. Super. 271, 275 (App. Div.
1977) (finding breach of covenant of habitability from lack of air conditioning
in apartment for eleven summer days when "temperatures were in the [eighties]
or [nineties]").
Here, the court's finding of breach was based on two grounds: inadequate
air conditioning and lack of access to the fire escape. 2 The court acknowledged
defendant acted promptly by calling an HVAC technician the day after plaintiffs
reported the cooling issue, making the decision not to repair the central cooling
unit, and installing the window units within two to three weeks. However, the
window units failed to adequately abate the issue. Thus, the court's finding a
material breach of the implied warranty of habitability for inadequate air
conditioning is supported by the record.
2
Although plaintiffs testified their six-year-old daughter's health was impacted
by the air conditioning issue, they did not provide any documentation to support
this claim. The court, therefore, did not rest its decision on this unproven
contention.
A-0935-25
7
The court also found a breach based on the window unit's blocking the
egress to the fire escape. Regardless of any township code violation, the court
determined the apartment was rendered uninhabitable by lack of access to the
fire escape. Because the trial court's findings are grounded in the record, we
discern no reason to disturb its conclusion defendant breached the warranty of
habitability.
We next address defendant's contention the punitive damages award was
legally unsupported. Defendant argues the award of $3,250 cannot stand
because the award is punitive and is not supported by clear and convincing
evidence of actual malice or willful disregard. The purpose of punitive damages
is "the deterrence of egregious misconduct and the punishment of the offender."
Herman v. Sunshine Chem. Specialties, Inc., 133 N.J. 329, 337 (1993) (citing
Leimgruber v. Claridge Assocs., Ltd., 73 N.J. 450, 454 (1977)). The Punitive
Damages Act, N.J.S.A. 2A:15-5.9 to -5.17, defines punitive damages as
"exemplary damages and means damages awarded against a party in a civil
action because of aggravating circumstances in order to penalize and to provide
additional deterrence against a defendant to discourage similar conduct in the
future. Punitive damages do not include compensatory damages or nominal
A-0935-25
8
damages." N.J.S.A. 2A:15-5.10. "An award of punitive damages must be
specifically prayed for in the complaint." N.J.S.A. 2A:15-5.11.
Defendant mischaracterizes the judgment as awarding punitive damages.
Plaintiffs' complaint did not seek punitive damages under N.J.S.A. 2A:15-5.11,
and the court did not characterize any part of the judgment as a punitive damages
award. Thus, defendant's argument is unavailing.
We next turn to defendant's contention the trial court erred by failing to
explain the method or basis for calculating the $3,250 judgment, which it claims
is based on speculation. "Generally, an award of damages is to be left to the
sound discretion of the trier of fact . . . and such awards should be upset for
excessiveness only in clear cases." Geherty v. Moore, 238 N.J. Super. 463, 479
(App. Div. 1990) (internal citation omitted). "When reviewing the amount of a
damage award, an appellate court should show appropriate deference to the trial
court's 'feel of the case.'" Carey v. Lovett, 132 N.J. 44, 66 (1993) (quoting
Baxter v. Fairmont Food Co., 74 N.J. 588, 600 (1977)). "So long as the record
supports a reasonable estimate of damages, based upon more than mere
speculation, a damage award can be affirmed." Borough of Fort Lee v. Banque
Nat'l de Paris, 311 N.J. Super. 280, 291 (App. Div. 1998); see also Mosley v.
Femina Fashions, Inc., 356 N.J. Super. 118, 128 (App. Div. 2002) (explaining
A-0935-25
9
the "law abhors damages based on mere speculation" (quoting Caldwell v.
Haynes, 136 N.J. 422, 442 (1994))).
However, "courts will fashion a [damages] remedy even though the proof
on damages is inexact" when "a wrong has been committed, and it is certain that
damages have resulted." Kozlowski v. Kozlowski, 80 N.J. 378, 388 (1979),
superseded on other grounds by N.J.S.A. 25:1-5(h). A plaintiff must "prove
damages with such certainty as the nature of the case may permit, laying a
foundation which will enable the trier of the facts to make a fair and reasonable
estimate." Lane v. Oil Delivery, Inc., 216 N.J. Super. 413, 420 (App. Div.
1987).
Plaintiffs sought damages from April 2025 to June 2026. The court
declined to award damages from April 2025 to June 2025, because there was
insufficient evidence to support plaintiffs' claims, and from October 2025
onward, because such damages would be speculative. The $3,250 award is,
therefore, based on the breach and harm suffered from July to September 2025. 3
3
The court initially stated it was confining damages to July, August, and
September; however, it then awarded damages "[f]or June, July and August."
Because the award was based on three months, this inadvertent misstatement
does not alter the calculation of damages and is therefore harmless.
A-0935-25
10
The court explained it "grant[ed] a $1,000 per month abatement due to the
fire hazard that was actually affirmatively created by the landlord" and the
landlord's decision not to spend $1,500 to fix the central unit and "solve[] the
issue once and for all." Although the blocked fire escape and unreasonably high
temperature rendered the apartment "for all intents and purposes uninhabitable,"
the abatement did not cover the full $1,780 monthly rent because the tenants
"continue[d] to enjoy the use of the premises." The court also awarded $250 for
the electric bill based on plaintiffs' testimony the bill increased over $500 due
to the air conditioning issue. We are satisfied the court's reasonable
methodology was sufficiently tethered to the evidence and therefore did not
constitute an abuse of discretion.
Affirmed.
A-0935-25
11