SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2898-14T1

NORTH JERSEY MEDIA GROUP, INC.,

Plaintiff-Appellant,

v.

IC SYSTEM SOLUTIONS, INC., COMPUTER

NETWORK SOLUTIONS, LLC, PHILIP NOLAN, 

NANCY NOLAN, and THE ESTATE OF PETER 

VAN LENTEN, JR.,

Defendants-Respondents.

______________________________________

Argued December 7, 2016 – Decided

Before Judges Accurso and Manahan.1

On appeal from Superior Court of New Jersey, 

Law Division, Bergen County, Docket No. L2791-13.

 

1 Hon. Carol E. Higbee participated in the panel before whom this 

case was argued. The opinion was not approved for filing prior 

to Judge Higbee's death on January 3, 2017. Pursuant to 

R. 2:12-2(b), "Appeals shall be decided by panels of 2 judges

designated by the presiding judge of the part except when the 

presiding judge determines that an appeal should be determined 

by a panel of 3 judges." The presiding judge has determined 

that this appeal shall be decided by two judges.

NOT FOR PUBLICATION WITHOUT THE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.

August 30, 2017
2 A-2898-14T1

Samuel J. Samaro argued the cause for 

appellant (Pashman Stein, attorneys; Mr. 

Samaro and Adam B. Schwartz, on the brief).

John R. Dineen argued the cause for 

respondents IC System Solutions and Philip 

and Nancy Nolan (Netchert, Dineen & 

Hillmann, attorneys; Mr. Dineen and Matthew 

P. Posada, on the brief).

Giuseppe Franzella argued the cause for 

respondent Computer Network Solutions 

(Lazer, Aptheker, Rosella & Yedid, PC, 

attorneys; Christina M. Rosas, on the 

brief).

Respondent Laurie Van Lenten, on behalf of 

the Estate of Peter Van Lenten, Jr., joins 

in the brief of respondents. 

PER CURIAM

Plaintiff North Jersey Media Group, Inc. appeals from the 

entry of summary judgment dismissing its complaint for fraud,

consumer fraud, unjust enrichment, civil conspiracy and 

conversion against defendants Computer Network Solutions, LLC, 

IC System Solutions, Inc., Philip Nolan, Nancy Nolan and the 

Estate of Peter Van Lenten, Jr. North Jersey also appeals from 

the denial of a discovery motion and a motion to amend its 

complaint.

Because we find the motion record on summary judgment

reveals material facts in dispute and that viewing the facts

most favorably to North Jersey makes clear it has produced 

sufficient evidence to put its claims of fraud, consumer fraud, 
3 A-2898-14T1

unjust enrichment and civil conspiracy before a jury, we reverse 

the order of summary judgment on those counts. We also conclude 

the trial court mistakenly exercised its discretion in denying 

North Jersey's discovery motion and direct the court to consider 

North Jersey's motion to amend its complaint on remand. We 

affirm the grant of summary judgment dismissing North Jersey's 

claim for conversion.

We present the facts in the light most favorable to North 

Jersey and give it the benefit of all favorable inferences in 

support of its claim. R. 4:46-2(c); Brill v. Guardian Life Ins. 

Co. of Am., 142 N.J. 520, 540 (1995). North Jersey is a media 

company publishing daily and weekly newspapers and maintaining 

two news sites. Computer Network Solutions is a technology 

company providing equipment and services designed to "maintain

and safeguard" their customers' "business-critical IT 

operations." Philip Nolan is a fifty percent owner of Computer 

Network Solutions.2 Nolan and his wife, Nancy, created IC 

 

2 Nolan apparently sold his interest in Computer Network 

Solutions to his partner, Alan Cook, for $2,000,000 in 2013. 

Cook sold Computer Network Solutions for $10,000,000 to another 

entity in 2014 during the pendency of this suit. The trial 

court denied North Jersey's motion to amend its complaint to add 

Cook as a defendant when it granted summary judgment to all 

defendants, deeming the motion moot. In light of our 

disposition of the appeal, we vacate that order and remand the 

motion for consideration on the merits. 
4 A-2898-14T1

System, a smaller company offering the same products and 

services as Computer Network Solutions. The two companies share 

office space, refer business back and forth and frequently work 

projects together. 

In 2009, North Jersey fired its Vice President of 

Information Technology, Peter Van Lenten, Jr.,3 who had been with 

the company for over twenty years. In the wake of Van Lenten's 

firing, North Jersey discovered the hard drive had been removed 

from Van Lenten's office computer, his administrative assistant 

had a brand new company laptop she was not authorized to possess 

and North Jersey could not figure out why it made three large

payments to IC System totaling over $130,000.4 

 

3 Van Lenten died in 2010 before North Jersey instituted this 

action.

4 When Bryan Shaughnessy, a network analyst responsible for 

networking at North Jersey, inquired about the payments with 

Phil Nolan, Nolan told him that $77,195.49 was for a two-year 

Network and Security Monitoring contract and $44,298 was for an 

annual On-Demand Hardware Support contract. Shaughnessy replied

that Nolan's network and security monitoring equipment "was 

taken off line long ago" and that North Jersey had not 

"corresponded with [Computer Network Solutions'] technical 

people in possibly several years in regards to the [n]etwork and 

[s]ecurity [m]onitoring," and asked whether Nolan could explain 

why North Jersey "is paying for a service when it is clearly not 

in use." Shaughnessy also wrote he was "shocked to see" that 

North Jersey was paying for on-demand hardware support for the 

network for which Shaughnessy was responsible and asked if Nolan 

could tell him "if [North Jersey] has ever utilized this support

(any dates/examples)?" Nolan never responded. At deposition, 

(continued)
5 A-2898-14T1

Those irregularities precipitated its investigation into 

Van Lenten's management of North Jersey's multi-million-dollar 

technology budget and his relationship with Phil Nolan, a 

principal of both IC System and Computer Network Solutions. 

What it found prompted this lawsuit.

North Jersey learned that Van Lenten had over the course of 

several years regularly evaded company policy that all contracts 

over $10,000 be reviewed by North Jersey's legal department, and 

that he purchased millions of dollars of goods and services from 

IC System and Computer Network Solutions on North Jersey's 

behalf without written contracts. North Jersey also learned 

that Van Lenten had a close personal relationship with Nolan. 

The two met weekly for drinks, paid for by Nolan, had lunch 

together at least three times a month and met for dinner four 

times a year. Nolan's companies also paid for a couple of 

expensive, out-of-state fishing trips for Van Lenten. Following 

its investigation, North Jersey instituted this suit alleging 

 

(continued)

Nolan asserted he contacted either Van Lenten or Joe Cuervo, 

described in the papers as Van Lenten's "right-hand man," about 

Shaughnessy's email, who told him they would "look into it or 

don't worry about it or something to that effect." North Jersey

asserts that explanation was false as Van Lenten had been fired 

six months before Nolan's email exchange with Shaughnessy and 

Cuervo had left North Jersey to take a job with Nolan eighteen 

months before. 
6 A-2898-14T1

Van Lenten abused his position of trust and breached his 

fiduciary duties to allow IC System and Computer Network 

Solutions to steal more than a million dollars from the company.

Specifically, North Jersey alleged that IC System and 

Computer Network Solutions swindled it in connection with at 

least four different projects undertaken at Van Lenten's 

request: a security camera upgrade at North Jersey's printing 

facility; the sale and installation of LibertyNet software; 

payment card scanning; and network security and monitoring. 

North Jersey put forth the following facts in support of those 

claims in opposition to defendants' summary judgment motions.

Security Camera Upgrade

Although Nolan and IC System had no experience installing 

security cameras and Computer Network Solutions had never 

performed a camera installation on the scale North Jersey 

required, Van Lenten hired them for a project to install thirty 

new cameras, ten in the press room and twenty in the mailroom in 

North Jersey's Rockaway facility at a cost of $109,865 and 

eighteen Pelco brand cameras and associated equipment outside 

the building and in specified common areas for $172,000. Van 

Lenten also authorized a purchase order for spare cameras and 

accessories as well as a Pelco Constant Scan Camera and an 
7 A-2898-14T1

annual maintenance contract for the camera system at a cost of 

$33,000 per year. 

North Jersey's facility manager, Frank Devetori, certified 

that he was the one who advised his superiors that the security 

camera system in Rockaway was outdated and should be replaced. 

He researched options for upgrades and obtained a quote from a 

vendor the company had previously used for security camera work. 

Although Devetori claimed the security cameras were his 

responsibility, he averred that Van Lenten took over the 

project, shutting Devetori out, and brought in Computer Network 

Solutions and IC System to do the work without soliciting other

bids. Devetori claimed Computer Network Solutions and IC System

performed the work on nights and weekends, a highly unusual 

practice for such planned upgrades, which he posits was done to 

avoid his observation of the project.

When Devetori reviewed the bills for the project after Van 

Lenten was fired, he was shocked. Based on the quote he 

received from the company's former vendor, he expected the 

project to cost less than half of what Computer Network 

Solutions and IC System billed North Jersey. He also certified 

that North Jersey did not get everything it paid for. He could 

only account for half the Pelco cameras Computer Network 

Solutions and IC System claimed to have installed and none of 
8 A-2898-14T1

the spares and accessories beyond the Constant Scan Camera. 

Devetori also claimed that he was responsible for maintenance of 

the system, and that neither Computer Network Solutions nor IC 

System ever serviced the camera system to his knowledge.

Yigal Rechtman, a certified public accountant and certified 

fraud examiner specializing in information technology, retained 

by North Jersey to provide expert testimony in the matter, 

reviewed the invoices Computer Network Solutions and IC System

submitted to North Jersey against Computer Network Solutions' 

purchase orders for the equipment. Corroborating Devetori's 

certification that North Jersey only received half of the Pelco

cameras it paid for, Rechtman could only find purchase orders 

for eight Pelco cameras and associated equipment. 

Rechtman also found that Van Lenten authorized payment of 

IC System's invoice for $35,174.90 for a replacement camera that 

should have been included in the supposed spare-parts 

maintenance plan for which North Jersey paid $36,230.16. He

also reported that Van Lenten repeatedly "modified the budget 

coding for the account associated with the payment for the 

purported service" and that such conduct is consistent with 

attempts to conceal payments and "avoid budgetary outliers, as 

would be the case in a purchasing fraud."
9 A-2898-14T1

Jeffrey Zwirn, the expert North Jersey retained to testify 

on the design and installation of electronic security and video 

surveillance systems, inspected the Rockaway facility and 

reviewed schematics provided by Computer Network Solutions and 

IC System. He concluded, among other things, that neither 

Company had the required New Jersey licenses for design and 

installation of a closed-circuit camera surveillance system like 

the one they designed and installed for North Jersey, and that

Computer Network Solutions used unlicensed electricians on the 

project. Zwirn claimed the outside wiring for the cameras was 

improperly performed and that instead of installing what they 

represented would be provided, Computer Network Solutions and IC 

System installed lower cost or substandard cameras and 

equipment. He also concluded that the cameras intended for the 

press room were never installed as the room was not even wired 

for cameras. 

LibertyNet

Phil Nolan testified at deposition that Van Lenten 

approached him about purchasing document management software 

called LibertyNet, for North Jersey. IC System was a designated 

reseller of the software and the LibertyNet logo was on IC 

System's stationery. LibertyNet was proposed for use in North 

Jersey's human resources department. After trying the software, 
10 A-2898-14T1

however, the human resources department rejected it and had it 

removed from its computers. Van Lenten bought the software from 

IC System after its rejection at a cost of $84,800. North 

Jersey also contends that documents produced by IC System show 

that it paid LibertyNet only $12,383 for the same software it 

sold to North Jersey for $84,800. 

North Jersey never issued a written purchase order for the 

LibertyNet software. Instead, Nolan testified that Van Lenten 

gave him "a verbal purchase order." North Jersey contends Van 

Lenten circumvented North Jersey policy that no invoice be paid 

for new products without a written purchase order, and further 

deceived the company by having Nolan disguise the purchase by 

sending five monthly invoices, each for $16,960, for "LibertyNet 

Maintenance HR Project."

Rechtman, North Jersey's fraud examiner, opined that 

spreading the payment over several months and mischaracterizing 

the purchase as "maintenance," "indicate that Van Lenten was 

intentionally attempting to conceal the purchase of the 

software." He claimed that use of such an "expense smoothing 

technique," by which "colluding parties . . . conceal the 

magnitude of the billing for budgetary supervisory oversight" is 

"common in purchasing fraud schemes."
11 A-2898-14T1

Cuervo, a former North Jersey employee who was working for 

Computer Network Solutions at the time the suit was pending in 

the trial court, testified at deposition that he executed the

LibertyNet licensing agreement on behalf of North Jersey three 

months after the human resources department rejected the 

software. Although aware that the agreement required review by 

the legal department, Cuervo testified he signed the documents 

without such review at Van Lenten's direction. Although North 

Jersey claimed the LibertyNet software was never used by anyone 

at North Jersey, Cuervo claimed he worked with North Jersey's 

Weekly Division to try and implement it there. Notwithstanding

the human resources department's rejection of the software and 

North Jersey's claim it was never used elsewhere in the company, 

Van Lenten authorized annual payments to IC System for 

"maintenance" of the software for three years at a cost of 

$34,000.

Payment Card Scanning

Nolan testified at deposition that Van Lenten contacted him 

to inquire as to whether IC System could perform payment card 

scans for North Jersey to detect weaknesses in the company's 

network that might expose the credit card information of its 

subscribers to hackers. Nolan was not familiar with the 

technology but his partner Cook advised that Computer Network 
12 A-2898-14T1

Solutions could perform them. Computer Network Solutions, 

however, had never before performed such scans and has only ever 

performed them for North Jersey. North Jersey claims the reason 

for that is "that it is completely unnecessary to hire an 

outside vendor to perform the scans if the company has its own 

IT department, as [North Jersey] does." 

Cuervo acknowledged at deposition that it might be possible 

for "a low-level clerk [to] actually do the scans" today, but 

North Jersey could not perform the scans itself in 2007, when 

Van Lenten first inquired about the service, because Qualys, the 

software provider, "would not work with [North Jersey] directly" 

because it was "going strictly through [its] reseller market." 

North Jersey, however, produced evidence that it purchased the 

Qualys software for the scans in 2007 directly from Qualys for 

$2,145, and that Computer Network Solutions charged North Jersey 

$10,543 to run the scans that year. 

Bryan Shaughnessy, North Jersey's network analyst, averred 

that he could have run the scans for North Jersey in 2007 as he 

did for the company in 2008, for a fraction of the cost charged 

by Computer Network Solutions and IC System. Shaughnessy also 

claimed that while Computer Network Solutions performed the 

scans for North Jersey in 2007, he was unaware "of any [payment 

card] scanning performed by [IC System] – who billed [North 
13 A-2898-14T1

Jersey] for this service – in 2008." Shaughnessy claimed that 

by 2008, he "was in charge of any running [of] the [payment 

card] scanning and . . . did so without any assistance from 

[Computer Network Solutions] or [IC System]." IC System claims 

it ran or directed the scans for North Jersey in 2008, for which 

it received payment authorized by Van Lenten for $8715.15. 

Network Security and Monitoring

IC System billed North Jersey approximately $75,000 per 

year between 2005 and 2008 to monitor its network and detect 

security intrusions. Computer Network Solutions installed two 

"Intruder Detector Systems" machines, which Cook claimed cost 

between $15,000 to $20,000 each. Notwithstanding that the 

purchase of the machines was a one-time cost passed along to 

North Jersey in the first year of the project, Cook admitted at 

deposition that IC System continued to charge North Jersey 

$70,000 each year thereafter. 

Shaughnessy claimed the system, which was supposed to 

provide notification to North Jersey whenever its network and 

servers were experiencing problems, "never worked." He averred 

"recall[ing] several instances when [North Jersey's] servers 

went down and the monitoring service did not know about it." 

Shaughnessy believed that both Computer Network Solutions and 

Van Lenten had largely abandoned the project shortly after its 
14 A-2898-14T1

installation and that Computer Network Solutions "was simply 

billing [North Jersey] for nothing." He also certified that the 

"System Administration and Network Monitoring" service for which 

IC System charged North Jersey $5000 per month between November 

2003 and May 2007 was simply "another ineffective service 

provided by [Computer Network Solutions]."

Shaughnessy further claimed the "Extended Network Services 

with On-Demand Spares" for which North Jersey paid Computer 

Network Solutions and IC System approximately $31,500 in 2007 

and $44,000 annually in 2008 and 2009, as authorized by Van 

Lenten did not even exist. Specifically, Shaughnessy certified 

that the "service literally could not have been in existence 

without [him] knowing about it," and he was thus "certain [North 

Jersey] was not using this service and [IC System] and [Computer 

Network Solutions] were providing nothing to [North Jersey] in 

return for the $44,000 annual payment." 

Nolan acknowledged the service was "kind of a unique

opportunity that [North Jersey] came to [him] with, what is 

considered emergency service over and above what a standard 

maintenance contract would be" and not offered to other 

customers. He agreed that the service "was being used without 

[Shaughnessy] knowing it," but claimed that was because Van 

Lenten had lost confidence in Shaughnessy's ability to restore 
15 A-2898-14T1

the network in the event of an emergency. Nolan admitted he 

kept no written list of the "spares" IC System maintained for 

North Jersey and was not aware of whether any "spares" were used 

or whether IC System or Computer Network Solutions actually 

performed any emergency maintenance or repairs to North Jersey's 

network during the period the company billed North Jersey for 

the service. Cook likewise testified at deposition that he did 

not have a list of the "spares" Computer Network Solutions 

maintained for North Jersey pursuant to this contract and could 

not identify any emergency maintenance or repairs to North 

Jersey's network during the period the company billed North 

Jersey for the service.

Having reviewed the depositions of Nolan, Cook and Cuervo, 

Rechtman, North Jersey's fraud expert, opined that none could 

clarify or describe the nature of these different monitoring 

services, and that Computer Network Solutions and IC System's 

failure to produce any evidence of "on-going exception reports 

or notices of downed servers between the years 2007 and 2009" 

suggests that although the "Intruder Detector" devices were 

installed, they were not "deployed or used in a meaningful way." 

Rechtman concluded that the network monitoring Computer Network 

Solutions and IC System claim to have done is not supported by 

the evidence, and that Van Lenten should have been aware that he 
16 A-2898-14T1

was overpaying for services not being provided by Computer 

Network Solutions and IC System and not utilized by North 

Jersey.

Evidence of Motive or Intent to Collude

Although acknowledging it was not successful within the 

discovery the trial court allowed in demonstrating any direct 

benefit to Van Lenten from the many improvident payments he 

authorized to Computer Network Solutions and IC System,

5 North 

Jersey claims it produced direct evidence of the collusive 

scheme in the form of email exchanged between Van Lenten and 

Nolan. North Jersey points in particular to exchanges between 

the two in connection with a $2,000,000 upgrade to North 

 

5 While the judge was especially critical on that point, North 

Jersey points out that the judge denied its motion to compel 

discovery of IC System and the Nolans, stating "[t]he current 

request is unreasonable given the time constraints of the 

discovery end date [sixty days remained]. Extensive discovery 

has been provided as the Defendant is aware of its discovery 

obligations and failure to produce may result in preclusion at 

the time of trial." The judge denied plaintiff's motion for 

reconsideration but extended discovery for four months. Given 

that the extension provided the parties six more months of 

discovery, the judge's reason for denying the request in the 

first instance, the nearness of the discovery end date, no 

longer had any vitality. Failure to consider the motion on its 

merits was thus a mistaken exercise in discretion. See State in 

Interest of A.B., 219 N.J. 542, 554 (2014). Accordingly, 

plaintiff's motion to compel discovery from IC System and the 

Nolans should be considered on its merits on remand.
17 A-2898-14T1

Jersey's entire computer system IC System proposed to North 

Jersey in September 2008. 

Following Van Lenten's review of the first of three 

proposals IC System prepared for the upgrade, he sent the 

following email to Nolan with a copy to Cook:

Hope your [sic] having fun getting sunburn 

on the top of your head. Now that we're 

going to move forward I'm digging into some 

of the details in the proposals. I just 

reviewed the desktop piece and have some 

concerns, I've highlighted them in red. 

Next week when you have some time let's get 

Montoya on the phone and go over the issues 

for clarity or reconciliation so we're all 

on the same page. I'll send the other 2 

stages when I'm done going through them. 

Have fun, don't drink too much. 

Twenty-two minutes later, Van Lenten sent a second email to 

Nolan, this time with no copy to Cook:

Need to clean up the typo's [sic] and 

misspellings as well as adjust the numbers. 

This can't be sloppy. This is not a 

criticism, the Finance guys don't know what 

they're doing so it's the only thing they 

can focus on to bust balls. 

Nineteen minutes later, Van Lenten sent yet a third email, 

again, only to Nolan:

Probably 100K in more room. Please strip my 

comments about money from the documents 

before sharing with Tom. Also need to talk 

about transfer of knowledge, licensing and 

maintenance.

 
18 A-2898-14T1

After this exchange, Nolan sent revised proposals to Van Lenten, 

which contained approximately $150,000 in increased costs. 

North Jersey contends these emails "demonstrate that Van Lenten 

was not an IT executive interested in protecting his employer 

and obtaining the best possible prices" but was instead 

colluding with Nolan and Cook to swindle North Jersey.

North Jersey contends that any doubt as to whose interests 

Van Lenten was promoting are put to rest by another exchange 

between Cook and Van Lenten several weeks later. On December 3, 

2008, Cook sent Van Lenten an email with an attached PowerPoint 

entitled "Business Impact of Infrastructure," along with a note, 

saying: "[I] [j]ust did this for another client. Would 

something like this be helpful to you?" Van Lenten replied:

Good stuff, if they had the attention span 

of more than 5 seconds it would work but 

I'll try. Hoping for the best, meeting with 

the family on Tuesday to pitch it. 

Hopefully great holiday for all. 

The trial judge assessed these proofs and the other 

evidence adduced on the motions and concluded that North 

Jersey's lawsuit was "clearly a classic example of 'buyer's 

remorse,'" premised on the "baseless conclusions" of its "selfproclaimed expert." He found "[t]he record [is] devoid" of any 

complaints by North Jersey over the several years that the 

parties did business that defendants overcharged or failed to 
19 A-2898-14T1

provide the equipment or services sold, and characterized "the 

instant litigation" as "then based on an inference upon another 

unrelated inference." We highlight a few of the findings.

The judge dismissed the evidence that Van Lenten had not 

negotiated the prices for the equipment and services it 

purchased from defendants or sought competitive proposals from 

other vendors, finding there was "no evidence that Van Lenten 

was required to do so as Vice President of IT" and concluded 

that North Jersey "cannot recover" for its "own improvident 

conduct." The judge was critical of the certification of North 

Jersey's long-serving facility manager Frank Devetori, in which 

Devetori asserted that North Jersey did not get all the cameras 

it paid for, stating "[t]he mere assertion by a witness that he 

now cannot find something sold years earlier is insufficient as 

a basis for an assertion that it was not tendered." The judge 

dismissed what Devetori characterized as Van Lenten's highly 

unusual act of having all the camera work done on nights and 

weekends, which Devetori surmised as having been done to 

preclude him from any involvement, as a "net suspicion, not 

within the personal knowledge of the affiant." 

The judge also concluded he need not consider the proofs 

offered by Jeffrey Zwirn, the expert North Jersey retained to 

testify on the design and installation of electronic security
20 A-2898-14T1

and video surveillance systems. Although acknowledging that 

Zwirn was "qualified to opine on the characteristics of security 

systems, and the appropriateness of Defendants' actions in 

regard thereto," the judge found Zwirn's opinion "as regards the 

issue of fraud" a net opinion and thus dismissed his entire 

opinion as inadmissible. The judge thus failed to consider 

Zwirn's opinion that neither Computer Network Solutions nor IC 

System had the necessary New Jersey licenses to design and 

install the sort of closed circuit camera monitoring system they

provided to North Jersey,

6 that defendants could not have 

installed the cameras they promised for the press room, as it 

was not even wired for cameras, that the outdoor wiring was 

improperly installed and that defendants had used unlicensed 

electricians to perform the work, as bearing on North Jersey's 

claims of fraud, consumer fraud, unjust enrichment and civil 

conspiracy.

 

6 The judge found the installation of the cameras "was performed 

under the direct control and supervision of [North Jersey's] IT 

director who merely used co-defendants to assist in the project" 

and concluded that "[t]he mere assisting in the installation of 

security cameras by or at the direction of [North Jersey's] IT 

director did not require a license and is not an unlawful 

practice under the NJCFA [New Jersey Consumer Fraud Act]." The 

judge's factual conclusion of defendants' role in the security 

camera upgrade appears at odds with Cook's deposition testimony, 

included in the motion record, that "[t]he role of [his] 

organization was to supply the cameras, the engineering, the 

design, and the installation."
21 A-2898-14T1

The judge similarly dismissed the expert opinion of North 

Jersey's certified public accountant and certified fraud 

examiner Yigal Rechtman. Although finding that Rechtman is 

"arguably qualified to offer an opinion as to fraud and 

fraudulent billing," the judge dismissed his opinions as to Van 

Lenten's frequent overrides of management controls in purchasing 

equipment and services from Computer Network Solutions and IC 

System and those entities unusually high profits from their 

sales to North Jersey as "conjecture" and not providing 

sufficient information as to how he reached his conclusions.

The judge specifically dismissed Rechtman's conclusions 

that Computer Network Solutions and IC System's "unreasonable 

profits in the range of 200% to 415%," which were "four times as 

high as [Computer Network Solutions] own gross profit margin, of 

about 50%" and well exceeding the 35% for the industry based on 

the NAICS [North American Industry Classification System] code 

for "computer and computer peripheral equipment and software 

merchant wholesalers," as "speculative," and concluded that 

fraud "is simply not a legitimate inference to be drawn from the 

mere existence of a large profit." 

The judge concluded 

The undisputed evidence, viewed in the light 

most favorable to [North Jersey], only 

demonstrates that the Defendant vendors were 
22 A-2898-14T1

comfortable and friendly with Van Lenten; 

that [North Jersey] paid large sums of money 

for services that, in retrospect, it wishes 

it had not, and which may not have been 

needed; that the Defendants obtained very 

high profits from [North Jersey] in their 

business transactions; and that, in 

hindsight, Van Lenten's purchasing decisions 

were impecunious.

The judge found "[t]he only matter in dispute was the unfounded 

conjecture that Defendants engaged in a fraudulent scheme." He 

concluded that "[t]here is no provision in the laws of New 

Jersey that allows for an argument that Defendants [Computer 

Network Solutions and IC System] took advantage of [North 

Jersey] by getting too good of a deal when they negotiated at 

arms' length with the Plaintiff."

In our view, the last sentence highlights the problem here. 

The judge assumed in deciding the motion that the transactions 

between North Jersey and IC System were "negotiated at arms' 

length," when the premise of North Jersey's case was that the 

relationship between Van Lenten and Nolan and his companies was 

not an arms' length one. Because the court assumed the 

transactions plaintiff complained of were legitimate, it did not 

view the competent evidence in the light most favorable to North 

Jersey, the non-moving party, nor accord it the legitimate 

inferences to be drawn from those facts. R. 4:46-2(c). Doing 

so mandates reversal of the motions. 
23 A-2898-14T1

We, of course, review summary judgment using the same 

standard that governs the trial court. Murray v. Plainfield 

Rescue Squad, 210 N.J. 581, 584 (2012). Thus, we consider 

"whether the competent evidential materials presented, when 

viewed in the light most favorable to the non-moving party, are 

sufficient to permit a rational factfinder to resolve the 

alleged disputed issue in favor of the non-moving party." Brill

supra, 142 N.J. at 540. Applying that standard here, we 

conclude summary judgment was inappropriate on North Jersey's 

claims of fraud, consumer fraud, unjust enrichment and civil 

conspiracy.

We turn first to the trial judge's decision striking 

plaintiff's expert reports as net opinions. See Estate of 

Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 384-85

(2010) (noting a court confronted with an evidentiary question 

on summary judgment must resolve that question before ruling on 

summary judgment and appellate review follows in the same 

sequence). As previously noted, the trial court found both 

experts qualified to provide expert testimony in the case, 

although noting Rechtman as only "arguably" so. We agree that 

both experts were qualified to offer opinions in this matter, 

Zwirn on electronic security and video surveillance systems and 

Rechtman as a CPA and Certified Fraud Examiner. See Agha v. 
24 A-2898-14T1

Feiner, 198 N.J. 50, 62 (2009) (noting an expert "must 'be

suitably qualified and possessed of sufficient specialized 

knowledge to be able to express [an expert opinion] and to 

explain the basis of that opinion'" (quoting State v. Moore, 122 

N.J. 420, 458-59 (1991))).

We reject, however, the trial court's conclusion that the 

expert reports were net opinions. Zwirn's opinions that

defendants were not qualified or licensed to install the 

surveillance camera system; the system was not installed 

correctly and the equipment provided was substandard or not as 

represented; maintenance and spare parts for new cameras under 

manufacturer's warranty were not consistent with industry 

practice; the pricing grossly exceeded industry standards and 

defendants' own established gross profit margins; and the press 

room was not wired for cameras were not "'based merely on 

unfounded speculation and unquantified possibilities,'" 

Townsend v. Pierre, 221 N.J. 36, 55 (2015) (quoting Grzanka v. 

Pfeifer, 301 N.J. Super. 563, 580 (App. Div. 1997), certif. 

denied, 154 N.J. 607 (1998)), but on facts in the record, his 

personal observations and the type of information commonly 

relied on by experts forming opinions on the same subject, see

N.J.R.E. 703; Polzo v. Cty. of Essex, 196 N.J. 569, 583 (2008).
25 A-2898-14T1

We reach a similar conclusion with regard to Rechtman's 

report. His opinions that Van Lenten had not followed internal 

management controls in approving purchases from Computer Network 

Solutions and IC System; agreed to purchase products that were 

not needed, and in at least one instance, the company had 

rejected; failed to obtain the best prices for goods and 

services; failed to ensure Computer Network Solutions and IC 

System were capable of handling projects assigned to them and 

purchased goods and services from defendants at grossly inflated 

rates, are all grounded in the facts and explained in his 

report. To the extent the court believed that particular 

conclusions of either expert were not justified, it was free to 

conduct a N.J.R.E. 104 hearing, and might have been advised to 

do so before rejecting wholesale the reports of qualified 

experts, who defendants had elected not to depose. See Kemp v. 

State, 174 N.J. 412, 426-27 (2002).

Having considered the reports of plaintiff's experts and 

reviewed the voluminous record on summary judgment, we are

convinced that the competent proofs on the motion, viewed in the 

light most favorable to plaintiff and according it all 

reasonable inferences, establish that plaintiff put forth 

sufficient proofs on its claims of fraud, consumer fraud, unjust 

enrichment and civil conspiracy to have survived summary 
26 A-2898-14T1

judgment.7 See In re Estate of DeFrank, 433 N.J. Super. 258, 266 

(App. Div. 2013) ("'[T]he cases are legion that caution against 

the use of summary judgment to decide a case that turns on the 

intent and credibility of the parties.'") (quoting McBarron v. 

Kipling Woods, L.L.C., 365 N.J. Super. 114, 117 (App. Div. 

2004)). We do not suggest that a jury will find, at this late 

date, that Van Lenten colluded with defendants to bilk North 

Jersey out of millions of dollars in the course of providing it 

IT equipment and services. It may well conclude, as the trial 

judge did, that plaintiff failed to have adequate controls over 

its purchasing in place and the case is only one of "buyer's 

remorse." But it is for the jury, and not the trial judge, to 

determine what evidence is credible, what inferences should be

drawn and whether defendants breached any duty owing to 

plaintiff resulting in damages. See Scully v. Fitzgerald, 179 

N.J. 114, 130 (2004).

Because it is not the judge's function on summary judgment 

to weigh the evidence and determine the truth of the conflicting 

claims but only to identify the existence of such genuine 

disputes, Brill, supra, 142 N.J. at 540, we reverse the grant of 

 

7 In the course of the panel's questions to plaintiff's counsel 

at oral argument regarding the basis for its conversion claim, 

counsel conceded summary judgment on that claim was appropriate. 

We agree and affirm the trial court's order in that respect.
27 A-2898-14T1

summary judgment and remand the case for trial. North Jersey's 

discovery motion is to be considered on the merits as is its 

motion to amend its complaint to add an additional party. We do 

not retain jurisdiction. Because the judge who heard the matter 

has already weighed the evidence and expressed his views of the 

credibility of plaintiff's experts, the matter should be 

reassigned to another judge on remand. See In re Guardianship 

of R.G. and F., 155 N.J. Super. 186, 195 (App. Div. 1977).

Affirmed in part; reversed in part and remanded.