                                NOT FOR PUBLICATION WITHOUT THE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-0808-18T2

RICHARD GIANACAKOS,
STEPHANIE GIANACAKOS,
and SCOTT FREEMAN,

          Plaintiffs-Respondents,

v.

HUDSON RIVER CROSSFIT,
MR. JOHN FRANKLIN, and
MS. ETHEL KOSZEGHY,

     Defendants-Appellants.
__________________________

                   Submitted December 5, 2019 – Decided April 1, 2020

                   Before Judges Nugent and Suter.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Hudson County, Docket No. C-
                   000127-17.

                   Dunne Dunne & Cohen LLC, attorneys for appellants
                   (Frederick Richard Dunne, III, of counsel and on the
                   brief).
            Baldassare & Mara, LLC, attorneys for respondents
            (Michael Angelo Baldassare, on the brief).

PER CURIAM

      Following a bench trial, defendants Hudson River CrossFit (CrossFit),

John Franklin and Ethel Koszeghy appeal the October 11, 2018 order requiring

CrossFit to cease operations at 701 Clinton Street in Hoboken; restraining

Koszeghy from re-renting this premises as a cross-fit gym or from installing or

using a public music system in it, and awarding $100,000 in punitive damages

against CrossFit and Franklin individually, jointly and severally—although this

award was stayed as long as certain conditions were satisfied. Plaintiffs Richard

and Stephanie Gianacakos and Scott Freeman were denied compensatory

damages. We affirm the order without the punitive damages award and the "self-

executing" portion of the conditional stay, both of which we reverse.

                                     I.

      In August 2017, plaintiffs filed a complaint against defendants alleging

causes of action to restrain violation of the Hoboken noise ordinance (Chapter

133 of the City of Hoboken Code) (count one); to restrain continuation of a

private nuisance (count two); and for damages caused by a private nuisance tort

and by a breach of contract (counts three and four). In addition to seeking

compensatory damages, plaintiffs requested punitive damages for the private

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                                          2
nuisance tort and attorney's fees for all counts.       Defendants denied the

allegations. 1   Franklin and CrossFit filed a counterclaim against Richard

Gianacakos for tortious interference with prospective economic advantage.

                                     A.

      We glean the facts from the bench trial. The building at 701 Clinton Street

(701) is owned by defendant Koszeghy. Made of concrete, it was constructed

as a garage, but was renovated for use as a commercial business. In 2013,

Koszeghy leased the premises to defendant Hudson River Fitness, LLC.

Franklin signed the lease and signed a personal guaranty. Hudson River Fitness,

LLC operated as CrossFit.

      Plaintiffs own residences immediately next door to CrossFit at 703

Clinton Street (703). The Gianacakoses live in the lower two floors; Fre eman

in the upper floors. Both the Gianacakoses and Freeman purchased their

properties in April 2016. Shortly after moving into 703—which had been newly

constructed—plaintiffs "noticed the excessively loud music and the dropping of

weights that emanated from the neighboring gym."




1
   Defendants also filed a third-party complaint against Red Bridge Homes
Corporation and RB3 Holdings Corp, the builders of 703 Clinton Street. These
pleadings are not in the appendix.
                                                                         A-0808-18T2
                                          3
      Stephanie Gianacakos testified she was awakened at 5:30 a.m. by

vibrations and noise coming from CrossFit. She could hear people screaming

obscenities and repetitive thuds caused by dropping dumbbells and throwing

medicine balls against the wall. She testified the noise was so loud it interfered

with her telephone conversations. The noise disturbed her sleep and was having

a substantial impact on her life.     She described this as "horrible" and a

"nightmare." She was offended by the obscenities she could hear coming from

CrossFit.

      Richard Gianacakos (Gianacakos) testified the vibrations coursed through

the walls and floor. He testified there was no place to get away from the sounds,

which included music, profane language and dropping weights; he and his wife

could not use certain rooms including the master bedroom.

      Scott Freeman—who owned the upper floors of the building—testified the

vibrations from CrossFit were, "awful," and that enduring them was "a

nightmare." The vibrations occurred every ten to fifteen seconds and were

similar to "small explosions . . . . [C]aus[ing] the entire building to shake." He

testified the vibrations made his pots and pans rattle in the kitchen.        The

vibrations negatively affected his life because they woke him early in the

morning and he could not use his premises for work-related or social gatherings.


                                                                          A-0808-18T2
                                        4
Gianacakos complained to CrossFit's owner, Franklin, and Freeman wrote to

Koszeghy complaining about the noise, all to no avail.

      Gianacakos filed a municipal court complaint to enforce the noise

ordinance that he claimed was violated.          Following mediation, CrossFit,

Franklin and Gianacakos reached an agreement in May 2017.               Under the

agreement, CrossFit and Franklin agreed to "keep noise and vibration down to a

reasonable minimum pursuant to the relevant statutes." 2 Gianacakos testified

CrossFit and Franklin violated the agreement.

      Gianacakos maintained a log from October 2017 to August 27, 2018, that

documented the noises he heard inside his home from CrossFit's operation,

including the sound of weights dropping to the floor, things hitting the wall,

loud music, women screaming and profanities. He purchased sound meters to

measure the noise level within his premises.

      Jay Wein, the general manager of CrossFit, testified about various weight

lifts used in cross-fit training. He testified recent changes were made to the staff

manual to reduce the music, but the music was monitored by the individual




2
  The mediated agreement is not in the appendix. No one disputed this was the
language in the agreement.
                                                                            A-0808-18T2
                                         5
coaches during the workouts. (Wein acknowledged CrossFit's new equipment

pads "kind of mitigate[ed] the noise."

      Franklin is the owner of CrossFit. He testified about the efforts made to

mitigate sounds and vibrations by using pads when weights were dropped,

reducing the amount of music speakers, and by moving the remaining music

speaker. He acknowledged he had not visited plaintiffs' homes nor responded

to their letters to him.

      Koszeghy testified she owned 701, leasing it in 2013 to CrossFit. She was

not aware Franklin signed an agreement with plaintiffs to abate noise and impact

sounds. She did not contact Freeman after he wrote to her about the noise in

May 2017. The lease with CrossFit prohibited it from conducting a public

nuisance at the property. She renewed the lease with CrossFit in April 2018.3

      Paul Montgomery testified as an expert sound engineer. He measured

sound and impact noises within the Gianacakos home. He testified that on

November 13, 2017, between 5:41 a.m. to 6:12 a.m., there were nineteen

separate times when the impact noise exceeded the Hoboken ordinance. He

measured the sound from music which was double the level set by the Hoboken


3
  The lease is not in the appendix. No one disputed this was the date of renewal
in the lease.


                                                                        A-0808-18T2
                                         6
ordinance. The decibel levels were about the same in the evening around 5:30

p.m. On November 20, 2017, the readings were similar. The impact noise

exceeded the forty-decibel limit eleven times before 6:59 a.m.; the music

readings were nearly double the six-decibel limit. On November 21, 2017, the

impact noise exceeded the Hoboken noise ordinance thirty-seven times starting

at 5:30 a.m.   He also measured music levels more than double the noise

ordinance.

      Joel Mestre was employed by the City of Hoboken as the Deputy

Coordinator of the Office of Emergency Management. He testified he was aware

there had been "multiple" complaints about noise at CrossFit. He did not go into

plaintiffs' homes. He walked outside of the building at 703. He could not hear

the music or weights with the doors and windows closed.

      Peter Svoboda testified for defendants as a forensic construction engineer.

He opined that 703 was not constructed properly because it was interconnected

to 701 in a number of different places. He testified he heard music and impact

sounds from within CrossFit, but did not hear them inside the Gianacakos' s

residence.

      David Phelan testified for defendants as an expert in construction,

construction code, and fire evacuation systems. He testified he did not perform


                                                                         A-0808-18T2
                                       7
any sound testing inside the plaintiffs' homes nor was he qualified to evaluate

or enforce noise ordinances. He testified the music and impact sounds were

transmitting through the building materials of the wall between the two

premises. In his opinion, there should not have been a physical connection

between the two buildings.

                                     B.

      Following the trial on October 11, 2018, the trial court ordered defendants

to cease operations at 701.     Koszeghy was restrained from re-renting the

premises to any tenant who would operate a gym using cross-fit modalities,

including weightlifting or any apparatus attached to the walls. The order barred

the installation or use of a public music system at 701. Plaintiffs' request for

compensatory damages was denied because they had not proven monetary

damages.   However, the trial court ordered $100,000 in punitive damages

against CrossFit and Franklin. The trial court stayed the restraints to cease

operations and the punitive damages judgment if all weightlifting ceased at 701.

The court ordered that activities at CrossFit could be monitored by plaintiffs,

but if the music or vibration levels were measured to exceed the Hoboken

Municipal Code, the trial court's order was "self-executing" meaning CrossFit

would have to immediately close at 701, and the punitive damages award would


                                                                         A-0808-18T2
                                          8
be reduced to a judgment against Franklin individually and CrossFit, jointly and

severally.

      The trial court found plaintiffs and their witnesses were "far away more

credible" than the defense witnesses. It determined plaintiffs proved by clear

and convincing evidence that defendants "created and maintained both a

continuing acts and past acts [private] nuisance." The court found the music

noise and impact noise constituted an actionable private nuisance. The noise

unreasonably interfered with the use and enjoyment of the premises, interrupting

work and leisure. It found Franklin was "immediately" informed about the

noise, and efforts were made to remediate this, but the noise continued with his

knowledge. The court found the equities favored plaintiffs because the benefit

of the gym to Franklin was "purely economic" while it interfered with the

plaintiffs' ability to occupy and enjoy their homes.

      The court determined Franklin breached the mediation agreement. Noise

levels were not kept within the levels set by the ordinance.

      The trial court also found plaintiffs were "interested" parties under

N.J.S.A. 40:55D-18, allowing them to enforce the Hoboken municipal sound

ordinance. Montgomery's testimony provided adequate proof the sound levels




                                                                        A-0808-18T2
                                        9
within plaintiffs' residences from CrossFit exceeded the Hoboken noise

ordinance.

      The trial court found Koszeghy was liable. She was aware of the noise

complaints based on Freeman's letter to her.      In the lease, Koszeghy was

obligated not to permit her tenant to engage in any activities that were a public

nuisance. The court found she did not make any inquiry after Freeman's letter.4

      The trial court assessed $100,000 in punitive damages against CrossFit

and Franklin, individually, under N.J.S.A. 2A:15-5.12(a).          It found the

"conditions that were created resulted exclusively from the activities engaged in

by the athletes and staff of [CrossFit] with the full understanding and knowledge

of its owner Mr. Franklin." The court found his actions "were, nevertheless,

taken with a willful and wanton disregard by means of a deliberate act or

omission which created a knowledge of a high degree of probability of harm to

Mr. and Mrs. Gianacakos and Mr. Freeman, and also with reckless indifference

to the consequences of that act or omission." The court determined punitive



4
   The court determined the third-party defendants, who were the original
owners, contractors and sellers of 703, were liable to defendants because there
was adequate credible evidence based on Phelan's testimony that the "noise and
vibrations that emanated from the gym were due in part to the construction of
the building by a preponderance of the evidence."


                                                                         A-0808-18T2
                                      10
damages were needed to punish and deter future actions. The court found

Franklin "immediately violated" the mediation agreement and only paid "[l]ip

service" to compliance requirements. The conditions at plaintiffs' residences

continued unabated. The court concluded Franklin's motivation was solely

based on economics. The trial court denied attorney's fees to all parties because

there was no fee shifting statute or rule that applied. The trial court denied

defendants' motion to stay the October 11, 2018 order.

                                       C.

      On appeal, defendants allege the trial court erred by permitting 116 videos

into evidence, which they claim plaintiffs intentionally withheld in discovery

and were not properly authenticated. Defendants argue the trial court abused its

discretion because its October 11, 2018 order was against the weight of the

evidence. Defendants argue the remedies imposed by the trial court were overly

broad.   They contended the trial court's order, in effect, closed CrossFit's

business at this location. Defendants argue the punitive damage award against

Franklin individually was unfounded. The order was overbroad because it

prohibited Koszeghy from re-renting the premises to any other business using a

public music system.




                                                                         A-0808-18T2
                                      11
                                       II.

                                       A.

      Defendants contend the trial court abused its discretion by permitting 116

videos from CrossFit's Instagram account in evidence because these were

provided to defendants just a few days before trial and were not properly

authenticated. Defendants contend they were prejudiced, and that plaintiffs did

not show exceptional circumstances under Rule 4:24-1(c).

      "In reviewing a trial court's evidential ruling, an appellate court is limited

to examining the decision for abuse of discretion." Hisenaj v. Kuehner, 194 N.J.

6, 12 (2008). The general rule as to the admission or exclusion of evidence is

that "[c]onsiderable latitude is afforded a trial court in determining whether to

admit evidence, and that determination will be reversed only if it constitutes an

abuse of discretion." State v. Feaster, 156 N.J. 1, 82 (1998). An appellate court

should not substitute its judgment for that of the trial court, unless "the trial

court's ruling 'was so wide of the mark that a manifest denial of justice resulted.'"

State v. Marrero, 148 N.J. 469, 484 (1997) (quoting State v. Kelly, 97 N.J. 178,

216 (1984)).

      Richard Gianacakos' testimony was sufficient to authenticate the videos

for the limited purposes for which they were introduced. See Suanez v. Egeland,


                                                                             A-0808-18T2
                                        12
330 N.J. Super. 190, 195 (App. Div. 2000) (providing "authentication must

establish that the video tape is an accurate reproduction of that which it purports

to demonstrate."). Plaintiff had been inside CrossFit on prior occasions. Wein

was present in some of the videos and CrossFit's logo can be seen.

      We are satisfied the trial court did not abuse its discretion by admitting

the videotapes. They were created by defendants and posted on their own social

media account, remaining there until just prior to trial. The trial court limited

use of the videotapes "to illustrate the various exercises that were described, and

the equipment used . . . and the existence of the purported remedial measures."

These same topics also were addressed by Wein and Franklin in their testimony.

The videotapes were not used by the court as proof of the noise levels produced

by CrossFit. Even if it were error to admit the videotapes, the error was not

reversable because the videotapes were simply cumulative of Franklin and

Wein's testimony.

                                        B.

      We afford a deferential standard of review to the factual findings of the

trial court on appeal from a bench trial. Rova Farms Resort, Inc. v. Inv'rs Ins.

Co. of Am., 65 N.J. 474, 483-84 (1974). These findings will not be disturbed

unless they are "so manifestly unsupported by or inconsistent with the


                                                                           A-0808-18T2
                                       13
competent, relevant and reasonably credible evidence as to offend the interests

of justice[.]" Id. at 484 (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super.

154, 155 (App. Div. 1963)).       However, our review of a trial court's legal

determinations is plenary. D'Agostino v. Maldonado, 216 N.J. 168, 182 (2013)

(citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378

(1995)).

      Defendants contend the City of Hoboken was actively enforcing its noise

ordinance because at the same time this civil case was pending, defendants were

defending a municipal court action based on plaintiffs' complaints. Because of

this, defendants argue plaintiffs were not "interested" parties under N.J.S.A.

40:55D-18 to enforce the zoning ordinance. Defendants argue there was no

zoning violation because they were zoned to operate a gym at this location.

      Under N.J.S.A. 40:55D-18 "an interested party . . . may institute any

appropriate action or proceedings to . . . restrain, correct or abate [violation of a

municipal ordinance]." An "[i]nterested party" is defined as "any person, . . .

whose right to use, acquire, or enjoy property is or may be affected by . . . an

action or a failure to act under [this Act]." N.J.S.A. 40:55D-4.

      The trial court found plaintiffs' right to the use and enjoyment of their

property was negatively affected by CrossFit's operations. There is nothing in


                                                                             A-0808-18T2
                                        14
N.J.S.A. 40:55D-18 that provides plaintiffs are precluded from instituting an

action because there also is a municipal court complaint about the same conduct

nor have defendants cited authority to support this argument.

      Defendants argue the trial court erred by finding defendants liable for a

private nuisance. They argue there was testimony about their efforts to address

plaintiffs' complaints. These included equipment modifications, modifications

in the manner that members drop weights, and changes to the CrossFit program

itself. Defendants argue plaintiffs did not prove that defendants' conduct was

intentional. They contend CrossFit was operating at 701 for three years before

703 was constructed. They argue plaintiffs were aware of CrossFit prior to

purchasing their homes.

      "The essence of a private nuisance is an unreasonable interference with

the use and enjoyment of land." Sans v. Ramsey Golf & Country Club, Inc., 29

N.J. 438, 448 (1959). In evaluating whether there is a private nuisance, a trial

court must weigh "[t]he utility of the defendant’s conduct . . . against the

quantum of harm to the plaintiff" in order to determine "whether the annoyance

or disturbance arises from an unreasonable use of the neighbor’s land or

operation of his business." Id. at 449. A private nuisance does not require proof

of negligence. Smith v. Jersey Cent. Power & Light Co., 421 N.J. Super. 374,


                                                                         A-0808-18T2
                                      15
390-91 (App. Div. 2011). Noise may constitute a nuisance where it presents

"(1) injury to the health or comfort of ordinary people to an unreasonable extent,

and (2) unreasonableness under all the circumstances, particularly after

balancing the needs of the maker to the needs of the listeners." Traetto v.

Palazzo, 436 N.J. Super. 6, 12 (App. Div. 2014) (quoting Malhame v. Borough

of Demarest, 162 N.J. Super. 248, 261 (Law Div. 1978)). The evidence must be

clear and convincing. Benton v. Kernan, 130 N.J. Eq. 193, 198 (E. & A. 1941).

      Our thorough review of the record shows there was sufficient credible

evidence to support the finding by the trial court that the operation of CrossFit

created a private nuisance. There was proof the noise and vibration produced

significantly exceeded the municipal ordinance requirements within plaintiffs'

premises. The sound readings were taken early in the morning and late at night.

Plaintiffs testified there were rooms they could not use during certain parts of

the day. The sounds interfered with their sleep; there was no place to avoid the

sounds. Although there certainly is a utility to a gym in terms of adding to the

physical and mental fitness of its members, we cannot say the trial court erred

by determining the utility of those benefits did not outweigh the impact on

plaintiffs through the loss of enjoyment and use of their property on a daily

basis. The nature of the activities at 701 made it difficult for defendants to


                                                                          A-0808-18T2
                                       16
modify the activity to reduce the disturbance which remained unabated even up

to the day of the trial.

      CrossFit was liable because it operated the gym. Franklin was sued

individually. The trial court found—and there was evidence to support—that he

did not adhere to his agreement to keep noise at reasonable levels. Koszeghy

owned the building where CrossFit operated. She was aware of the noise based

on correspondence from Freeman, did not take action to abate it and re-leased

the property to CrossFit. As a landowner, she can be liable for a nuisance. See

Cogsville v. City of Trenton, 159 N.J. Super. 71, 73-74 (App. Div. 1978)

(providing a landlord ordinarily will not have liability for a nuisance on a leased

premises, unless the landlord "knew, or had reason to believe, that he was letting

the property for a use which must prove injurious to the plaintiff" (quoting

Wasilewski v. McGuire Art Shop, 117 N.J.L. 264, 267 (Sup. Ct. 1936))). Thus,

the trial court had ample evidence and legal support for its order finding liability

by defendants for a private nuisance.

                                        C.

      Defendants argue the trial court committed reversible error by finding

they breached the mediation agreement. They contend they acted in good faith




                                                                            A-0808-18T2
                                        17
and followed the agreement by "keep[ing] noise and vibration down to a

reasonable minimum, pursuant to the relevant statute."

      The record does not support defendants' contentions. The trial court found

plaintiffs and their witnesses to be credible. The testimony by the Gianacakoses

and Freeman was that the loud noise—starting early in the morning—continued

to significantly interfere with the use and enjoyment of their homes. The

agreement was to reduce the noise to reasonable levels. The court found that

was not achieved. Thus, the trial court did not err by finding Franklin and

CrossFit breached the mediation agreement.

                                       D.

      Defendants argue the trial court abused its discretion because its order

effectively shut down their business at this location. Although CrossFit has

relocated its business, defendants contend they continue to pay rent for this

premises.

      Where a nuisance has been found, the court can order the activity to cease.

See Kernan, 130 N.J. Eq. at 193. Here, the trial court stayed its order to cease

operations as long as the gym operated without dropping weights, throwing

medicine balls against the wall or playing loud music. The gym was not closed




                                                                         A-0808-18T2
                                      18
down.     Its operation was conditioned on not conducting certain types of

activities.

        We disagree with the trial court that the order to cease operations and to

enter a punitive damages judgment could be self-executing based upon

monitoring activities by plaintiffs.           This portion of the order was an

inappropriate delegation by the trial court of its powers. See Parish v. Parish,

412 N.J. Super. 39, 53 (App. Div. 2010) (providing that "[e]nforcement of orders

rests with the courts"). The court cannot delegate to plaintiffs the ability to

trigger the automatic entry or modification of an order. It is for the trial court

to determine, based on appropriate notice and opportunity to respond, whether

an order has been violated or whether there is a need to modify its terms. The

trial court erred in delegating this authority to plaintiffs.

                                          E.

        We agree with defendants that the punitive damages award must be

reversed. Under N.J.S.A. 2A:15-5.13(c) "[p]unitive damages may be awarded

only if compensatory damages have been awarded in the first stage of the trial."

See Longo v. Pleasure Prods., 215 N.J. 48, 58 (2013). The trial court did not

award compensatory damages. Therefore, there was no authority to award

punitive damages.


                                                                          A-0808-18T2
                                         19
      Defendants argue the trial court committed reversible error by restraining

the ability to re-rent 701 if it has a public music system.       We disagree.

Defendants presented no information about music levels that were reasonable

for this structure nor did the order preclude defendants from making application

for a modification in the future. On this record, the trial court did not commit

reversible error.

      Affirmed in part; and reversed in part. The punitive damages award is

reversed. The portion of the order that is self-executing is reversed. The

conditions of the stay are affirmed.




                                                                        A-0808-18T2
                                       20
