SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-3884-21 

COOLEST REFRIGERATION, LLC, 

 Plaintiff-Respondent, 

v.

ZINA'S SALADS, INC., 

 Defendant-Appellant. 

______________________________

Submitted December 11, 2023 – Decided December 27, 2023 

Before Judges Marczyk and Chase. 

On appeal from the Superior Court of New Jersey, Law 

Division, Morris County, Docket No. L-1852-20.

Levine DeSantis LLC, attorneys for appellant (Peter L. 

Nichols, on the briefs). 

Shawki & Associates, LLC, attorneys for respondent 

(Marco Mamdouh Shawki, on the brief). 

PER CURIAM 

Defendant Zina's Salads, Inc. ("Zina's") appeals from a May 16, 2022 

judgment, subsequent to a bench trial, where the trial court determined plaintiff 

NOT FOR PUBLICATION WITHOUT THE 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.
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Coolest Refrigeration, LLC ("Coolest") breached its contract with Zina's but 

awarded no damages. We affirm. 

I.

We glean these facts from the record. Coolest is a licensed heating, 

ventilation, air conditioning, and refrigeration ("HVACR") contractor owned by 

Samuel Sidhom. Zina's is a manufacturer and wholesaler of food products, 

namely salads and side dishes. In March 2019, Sidhom presented Zina's with 

an estimate totaling $29,400 for the installation of two custom walk-in 

refrigeration units at Zina's warehouse in East Hanover. This estimate explicitly 

outlined the requirement for the units to maintain a target temperature of thirtyfive degrees Fahrenheit, and it expressly acknowledged the need for the 

refrigeration units to compensate for products entering at room temperature. 

Installation began sometime in the middle of April 2019. In June, an electrician 

connected the coolers to power. 

The parties agree the second cooler was never able to achieve the target 

temperature. As part of his efforts to diagnose the problem, Sidhom sent a 

customer questionnaire to Zina's Chief Executive Officer ("CEO"), Valentin 

Chelnokov. The questionnaire asked, "Please describe what is going into the 

Walk In," to which Chelnokov responded, "hot/warm product 85-90°F, 15000 
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lbs a day in 5 lbs tubs[.]" The questionnaire also asked, "How soon should the 

product get down to target temperature?" to which Chelnokov responded, "[four] 

hours." Sidhom explained the unit would require additional equipment to reach 

target temperature within the specified time. 

Subsequently, Sidhom provided Zina's with an estimate to add an 

additional ten-horsepower condenser to the existing system, which Sidhom 

offered at half-price. Believing that the original job had not been completed, 

Zina's opted not to install the additional ten-horsepower condenser, and instead 

agreed to the addition of a five-horsepower unit at no cost. Sidhom informed 

Zina's the five-horsepower unit would not be sufficient for the unit to reach 

target temperature within the specified time. Nevertheless, this additional 

installation was completed by the end of August. 

Zina's made three payments according to the payment schedule on the 

estimate, but did not pay the final amount due of $6,400. Throughout September 

and October, Sidhom contacted Zina's for payment of the final amount. In 

response, Zina's Chief Financial Officer ("CFO"), Alex Chenakal, informed 

Sidhom that the cooler still failed to reach the target temperature, stating, "Your 

work is not complete. Please fix it." Sidhom explained the failure to reach 
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target temperature was due to Zina's decision not to include the additional 

capacity as Sidhom recommended. 

Coolest subsequently initiated suit. Coolest's amended complaint alleged 

breach of contract and unjust enrichment and demanded payment of the balance 

due on the contract plus fees. Zina's answered the complaint and asserted 

counterclaims for breach of contract, common law fraud, and consumer fraud 

under N.J.S.A. 56:8-1 to -227. Zina's also successfully moved to transfer the 

matter to the Law Division. 

A bench trial began in March 2022. After Sidhom testified on behalf of 

plaintiff, Zina's called three witnesses. An HVACR expert testified to why the 

system did not work. CEO Chelnokov testified as to his conversations with 

Coolest to diagnose and attempt to fix the problem. CFO Chenakal testified 

when the problems first arose, Zina's did not reach out to any other contractor 

because, in his experience, it was difficult to find HVACR professionals during 

the summer when they were in high demand. Further, he testified Zina's did not 

agree to the installation of the additional condenser because he and Chelnokov 

believed Sidhom should have completed the job as contracted without imposing 

additional charges. 
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Chenakal also testified to Zina's business losses. He presented a loss of 

revenue analysis for the summer of 2019 that he prepared, estimating $711,000 

in lost revenue from one client, Stop & Shop, and $176,000 in lost revenue from 

another client, NetCost. He supported the NetCost estimate with a letter of 

intent and supported the Stop & Shop estimate with evidence of a shipment 

rejected in May 2019 due to incorrect product temperature. He testified that in 

2021, Zina's gross profits were approximately 27.9% of total revenue. 

Therefore, he calculated the lost revenue of $887,000 would have generated a 

gross profit of $249,000. He testified it was unnecessary to deduct any fixed 

expenses from the gross profits estimate because the company's administrative, 

production, and real estate expenses would have already been paid for by 

existing business. Therefore, according to Chenakal, the lost gross profits were 

equal to lost net profits. 

On May 16, 2022, the court ordered an entry of judgment in Zina's favor 

on the complaint and count one of the counterclaim and dismissed counts two 

and three. In its written opinion, the court concluded Coolest failed to fulfill its 

contractual obligation to Zina's because the refrigeration system did not work as 

promised. 
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However, the court also found that while Zina's was relieved of its 

obligation to pay the outstanding balance of $6,400, it failed to prove its lost 

profits damages and would receive no award from Coolest. The court found 

Zina's claim for damages was not supported by adequate credible evidence. 

Specifically, the court found the lost profits analysis presented by Chenakal 

could not be used to determine damages. The court noted the purported loss of 

Stop & Shop business was not supported by any documentation, Chenakal's 

decision to exclude fixed costs from estimated lost profits was erroneous, and 

the report did not account for any other clients or the effects of the COVID-19 

pandemic on sales. The court also found Zina's failed to mitigate its damages 

by "failing to make other arrangements promptly to complete the installation." 

On June 3, 2022, Zina's moved for reconsideration and amendment of the 

court's order. On July 29, 2022, the court denied Zina's motion. The court stated 

Chenakal's testimony raised several credibility issues. The court found failing 

to deduct fixed costs from estimated gross profits was "fundamentally wrong 

. . . a fundamental principle of accounting and financial analysis that this alleged 

expert simply missed." The court said any attempt on its part to make an 

adjustment to the calculated damages would be too speculative and would 

involve "pulling numbers out of the air." The court found Zina's had not met its 
7 A-3884-21

burden to establish the quantity of the loss. The court found Chenakal, as an 

employee of Zina's, was not an independent witness and "lost all credibility in 

[the court's] mind when he didn't understand the fundamental principle that all, 

all profits bear some responsibility for being offset by direct, as well as indirect 

costs." The court reiterated there was no evidence Zina's tried, but was 

unsuccessful, in mitigating damages, and they had done "very little once they 

knew they had this fundamental problem . . . ." 

On appeal, Zina's raises the following points: 

POINT I 

THE TRIAL COURT ERRED IN DENYING [ZINA'S] 

DAMAGES ON THE BASIS OF CHENAKAL'S 

EVIDENCE, WHEN IT WAS CLEAR THAT 

DAMAGES RESULTED FROM [COOLEST'S] 

BREACH OF CONTRACT. 

POINT II 

THE TRIAL COURT ERRED IN FINDING THAT 

CHENAKAL WAS UNQUALIFIED TO GIVE 

DAMAGES EVIDENCE. 

POINT III 

THE TRIAL COURT ERRED IN ITS FINDING THAT 

[ZINA'S] HAD FAILED TO MITIGATE ITS 

DAMAGES. 
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II. 

Zina's first argues the court should not have denied relief for insufficiency 

of evidence because lost profits damages are, by nature, always speculative to 

some extent. Relying on Totaro, Duffy, Cannova & Co. v. Lane, Middleton & 

Co. 191 N.J. 1 (2007), Zina's argues uncertainty in the amount of damages 

cannot preclude recovery where it is certain that a breach resulted in loss. Zina's 

compares its method of estimating damages to that used in V.A.L. Floors, Inc. 

v. Westminster Communities, Inc., 355 N.J. Super. 416 (App. Div. 2002), which 

allowed evidence of prior business to form a reasonable basis to estimate lost 

profits. Zina's argues the estimates put forth by Chenakal for the lost revenues 

from NetCost and Stop & Shop, along with the profit margins from 2021, 

provided enough definiteness to permit the court to award damages. Zina's 

maintains that even if the failure to reduce the estimated gross profits by fixed 

costs was an error, that error is "hardly a basis for negating the entire amount of 

lost profit calculated." 

In response, Coolest emphasizes the court's decision rested on the 

credibility of Chenakal's testimony and analysis, which must be respected "but 

for a clear case where there is no doubt the trial court erred." Coolest argues 

"mere opinion" and "mere speculation" are not sufficient to determine damages. 
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A non-breaching party seeking compensatory damages in a contract action 

is "obligated to prove, by a preponderance of the evidence, that the losses it 

sought to recover were 'a reasonably certain consequence of the breach.'" 

Totaro, 191 N.J. at 15 (quoting Donovan v. Bachstadt, 91 N.J. 434, 445 (1982)). 

This burden also requires the non-breaching party "to demonstrate the 

appropriate method for quantifying that loss." Totaro, 191 N.J. at 15. A trial 

court may not rely on "wholly speculative" information to determine damages. 

Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 375 (2011). 

The cases on which Zina's relies do not support its position. Totaro 

involved a dispute where an accountant solicited business from a former 

employer in an established violation of a non-solicitation agreement. 191 N.J. 

at 17. The Supreme Court reduced the damages awarded by the trial court 

because the record supported the loss of only one year's profits, not the three 

years remaining on the agreement. Ibid. This outcome undermines Zina's 

request for this court to award damages despite a lack of competent, credible 

evidence and an appropriate method for quantifying them. 

V.A.L. addressed whether estimates of lost profits were sufficient to 

survive summary judgment, a determination different from a factfinder's 

assessment of credibility. 355 N.J. Super. at 419. While the V.A.L. court 
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acknowledged a factfinder is afforded great latitude to speculate as to the precise 

amount of damages, estimated lost profits still needed to be "based on sound 

fact and not on mere opinion evidence without factual support . . . ." Id. at 425 

(quoting Rempfer v. Deerfield Packing Corp., 4 N.J. 135, 144 (1950)). Here, 

the trial court rejected the evidence before it not for imprecision, but for lack of 

credibility and for Zina's failure to provide the court with a reliable method to 

calculate the award. 

While Zina's is correct that an inability to prove damages with absolute 

precision does not automatically preclude recovery, it still had an evidentiary 

burden to meet. Evidence of the damages did not need to be precise, but it did 

need to be competent and credible. Here, the trial court found the testimony and 

financial analysis put forward by Chenakal to be flawed, not based on sufficient 

underlying data, and not credible. Given the highly deferential standard 

afforded to a trial court's assessment of witness credibility and evidentiary 

matters, there is no reason to disturb the trial court's conclusion. L.M.F. v. 

J.A.F., Jr., 421 N.J. Super. 523, 533 (App. Div. 2011) (citing Rova Farms Resort, 

Inc. v. Invs. Ins. Co. of Am., 65 N.J. 474, 484 (1974)). 
11 A-3884-21

III. 

Zina's next argues the court, in both its original judgment and its denial of 

the motion for reconsideration, "strongly suggested that Chenakal was not 

qualified to testify as to [Zina's] damages because he was an officer of the 

company and not an independent expert witness." Zina's points to Totaro and 

V.A.L. as examples in which parties were permitted to testify as to their own 

lost profits. 

Coolest responds the trial court did not, in fact, find Chenakal unqualified 

to give damages evidence. Coolest notes Chenakal's testimony was admitted 

over Coolest's objection, raised in limine, which argued that expert testimony 

was necessary. Coolest argues the court's assessment of the testimony was "not 

due to Mr. Chenakal's position, experience or knowledge, but was solely due to 

his failure to provide adequate basis for his conclusions." 

Unless offered as experts, witnesses may testify only if they have 

"personal knowledge of the matter." N.J.R.E. 602. A non-expert witness may 

also offer opinion or inference testimony if the testimony "(a) is rationally based 

on the witness' perception; and (b) will assist in understanding the witness' 

testimony or determining a fact in issue." N.J.R.E. 701. "The fact that a person 

with personal knowledge of facts relevant to a dispute may also qualify as an 
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expert in the particular field associated with those facts does not convert his or 

her testimony based on personal knowledge of specific facts into expert 

testimony . . . ." E&H Steel Corp. v. PSEG Fossil, LLC, 455 N.J. Super. 12, 26 

(App. Div. 2018). 

Even though the trial court did refer to Chenakal as "this alleged expert," 

Zina's never tendered Chenakal as an expert witness. When denying Coolest's 

motion in limine, the court allowed Chenakal to testify about Zina's business 

because he had personal knowledge through his work as CFO. The testimony 

was admitted "subject to [the court's] ruling as to relevance and sufficient basis 

to the issue." Apart from a sustained objection to hearsay testimony, Coolest 

did not raise, and the court did not rule on, any challenge to Chenakal's 

testimony as not being adequately based on his own personal knowledge. 

Chenakal was therefore permitted to testify as a fact witness and give lay opinion 

testimony on the material fact of damages, subject to the requirements of 

N.J.R.E. 701.

The trial court's assessment of Chenakal's testimony and financial analysis 

was clearly an evaluation not of Chenakal's qualifications, but of his credibility, 

which the court found lacking due to errors in the report and Chenakal's "vested 

interest in the outcome." This does not mean the court deemed Chenakal 
13 A-3884-21

unqualified to give either factual or lay opinion testimony. Indeed, both types 

of evidence were introduced through his testimony. 

IV. 

Finally, Zina's argues due to the seasonal demands of its business and the 

scarcity of refrigeration professionals in the summer, mitigation was not 

realistic. Zina's argues, Coolest, as the breaching party, bore the burden of 

demonstrating it was possible for Zina to mitigate its damages. Coolest 

emphasizes it offered to install additional equipment, which Coolest maintains 

could have mitigated Zina's damages, but Zina's refused the offer. 

An injured party's duty to take reasonable steps to mitigate damages is 

"well settled." Nelson v. Elizabeth Bd. of Educ., 466 N.J. Super. 325, 344 (App. 

Div. 2021) (quoting McDonald v. Mianecki, 79 N.J. 275, 299 (1979)). 

Once a party has reason to know that performance by

the other party will not be forthcoming, he is ordinarily 

expected . . . to take such affirmative steps as are 

appropriate in the circumstances to avoid loss by 

making substitute arrangements or otherwise . . . . The 

amount of loss that he could reasonably have avoided 

by . . . making substitute arrangements . . . is simply 

subtracted from the amount that would otherwise have 

been recoverable as damages. 

[Ingraham v. Trowbridge Builders, 297 N.J. Super. 72, 

83 (App. Div. 1997) (quoting Restatement (Second) of 

Conts., § 350, cmt. b (Am. L. Inst. 1981)).] 
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While an injured party may "urge the [breaching] party to perform[,]" such 

efforts do not constitute mitigation, but are taken into account to determine the 

reasonableness of the time actual mitigation begins after a breach is discovered. 

Ibid. Whether a non-breaching party made "reasonable efforts to mitigate its 

damages [is] a question for the trier of fact." State v. Ernst & Young, L.L.P., 

386 N.J. Super. 600, 616 (App. Div. 2006) (citing Ingraham, 297 N.J. Super. at 

84). The breaching party has "the burden of proof . . . as to actual or potential 

mitigation and the amount thereof." Sandler v. Lawn-A-Mat Chem. & Equip. 

Corp., 141 N.J. Super. 437, 455 (App. Div. 1976) (citing Roselle v. La Fera 

Contracting Co., 18 N.J. Super. 19, 28 (Ch. Div. 1952)). 

Zina's is correct that as the breaching party, Coolest bore the burden to 

prove the possibility of mitigation, Zina's failure to mitigate, and the value of 

any corresponding reduction of damages. However, the court found factual 

support for its conclusion through Zina's own evidence. Zina's employees 

testified they took little, if any, action to contact other refrigeration professionals 

during the peak summer months, and they could not identify when another 

professional eventually was contacted. To the extent the trial court might have 

placed the burden of proving the facts of mitigation on Zina's, that was an error. 

However, because factual support for the court's conclusion was introduced by 
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Zina's anyway, and because there are no compensatory damages to be reduced 

by a purported failure to mitigate, any such error does not rise to an error clearly 

capable of producing an unjust result. R. 2:10-2.

Affirmed.