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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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