SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A - 2898
- 14T1 NORTH JERSEY MEDIA GROUP, INC., Plaintiff

- Appellant,

v.
IC SYST EM 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 Mana han. 1 On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L

2791
- 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 NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court . " A lthough it is posted on the internet , th is opinion is binding only on the parties in the case and its use in other cases is limited . R .1:36
- 3.

August 30, 20172 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 ca use for respondents IC System Solutions and Philip and Nancy Nolan (Netchert, Dineen & Hillmann, att orneys; Mr. Dineen and Matthew P . Posada, on the brief). Giuseppe Franzella argued the cause for respondent Computer Network Solutions (Lazer, Aptheker, Ro sella & Yed i d, PC, attorneys; Christina M. Rosas, on the brief). Respondent Laurie Van Lenten , on behalf of the Estate of Peter Van Lenten, Jr., join s in the brief of respondents.
PER CURIAM Plaintiff North Jersey Media Group , Inc. appeals from the

en try 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 V an 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 Nor th Jersey makes clear it has produced sufficient evide nce 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 mistaken ly exercised its discretion in denying North Jersey's d iscovery 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 pre sent the facts in the light most favorable to North Jersey and give it the benefit of all favora ble 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 publis hing 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' " busines s - critical IT operations." Phi lip 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 d enied North Jersey's moti on 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 for th 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 d iscovered the hard drive had been rem oved
from Van Lenten's office computer, h is administrative assistant
ha d 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 o ver $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 Net work and S ecur ity M onitoring contract and $44,298 was for an annual O n - D emand H ardware S upport contract. Shaugh nessy replied that Nolan's network and security monitoring equipment "was taken off line long ago" and that North Jersey had not "corresponded w ith [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." Shaughne ssy 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 nev er responded. At deposition, (continued)5 A - 2898
- 14T1

Those irregular ities pr ecipitated 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 go ods 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 f or 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 th is 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 s omething 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 fidu ciary 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; a nd 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 cam eras 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 Con stant Scan Camera and an7 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 othe r bids. Devetori claimed Computer Network Solutions and IC System performed the work on nights and weeke nds, 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 th e 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 Pel co cameras Computer Network Solutions and IC System claimed to have installed and none of8 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 Ne twork 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 m atter, 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 i ncluded 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
purpo rted service" and that such condu ct 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 survei llance systems, inspected the Rockaway facility and reviewed schematics provided by Computer Network Solutions and IC System . He concluded, among oth er things, that n either Comp any had the required New Jersey licenses for design and installation of a clos ed
- circuit camera surveillance system like the one they designed and installed for North Jersey , and that Computer Network Solutions used unlicensed el ectricians 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 camera s. 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 station e ry. LibertyNet was proposed for use in North Jersey's h uman r esources d epartment. After trying the software,10 A - 2898
- 14T1

however, the h uman r esources d epartment rejected it and had it removed from its computers. V an L enten 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.

N orth 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 w ritten purchase order , and further deceived the company by having Nolan disguise the purchase by sending five monthly invoices, each for $16,9 60, 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 techniqu e," 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 r esources department rejected the
software. Al though 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 Jer sey's Weekly D ivision to try and implement it there. Notwithstanding
the human resources d epartment's rejection of the software and North Jersey's claim it was never used elsewhere in the company , Van Lenten authoriz ed annual payments to IC System for

"ma intenance" 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 Network12 A - 2898
- 14T1

Solutions could perform them. Computer Network Solutions,
ho wever, 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 depa rtment , as [North Jersey] does." Cuervo acknowledged at deposition that it might be po ssible
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 s ervice, 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 200 7 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 Syst em . Shaughnessy also claimed that while Computer Network Solutions performed the scans for North Jersey in 2007, he was unaware "of any [payment card] s c anning performed by [IC System ]
– who billed [North13 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 N etwork Sol utions] 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 a nd Monitoring IC System billed North Jersey approximately $7 5 ,000 pe r year between 2005 and 2008 to monitor its network and detect security intrusions. Computer Network Solutions installed two
"Intruder Detector Systems " ma chines, which Cook claimed cost
b etween $15,000 to $20,000 each . Notwithstanding that the purchase of the machines w as 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 suppose d 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."
Sh aughnessy believed that both Computer Network Solutions and Van Lenten had largely abandoned the project shortly after its14 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 Monitori ng" 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, Shaugh nessy 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 us ing this service and [IC System ] and [Computer Network Solutions] were providing nothing to [Nor th 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 [Shaughness y] knowing it," but claimed that was because Van Lenten had lost confidence in Shaughnessy's ability to restore15 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 a nd 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, opine d 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 tha t the network monitoring Computer Network Solutions and IC System claim to have done is not suppor ted by the evidence , and that Van Lenten should have been aware that he16 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 acknowle dging 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 pro duced 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 S ystem 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 pre clusion 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 consi der 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 rema nd.17 A - 2898
- 14T1

Jersey's e ntire computer system IC System propos ed to North Jersey in September 2008. Following Van Lenten's review of the first o f 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 yo ur 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 la ter, 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 b alls. 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 protecti ng 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 attent ion 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 tri al judge assessed these proofs and the other evidence adduced on the motions and concluded that North Jersey's lawsuit w as "clearly a classi c example of 'buyer's remorse,'" premised on the "baseless conclusions" of its "self

proclaimed 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 to19 A - 2898
- 14T1

provide the equipment or services sold , and characterized " the instant litigation " as "then based on a n 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 soug ht competitive proposals f rom other vendor s , finding there was "no evidence that Van Lenten was required to do so as Vice Pres ident of IT " and concluded that North Jersey "cannot recover" for its "own improvident
conduct." The judge was critical of the certification of North

Jerse y's long
- serving f acility m anager 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 bas is 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 a ny 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 elect ronic security20 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 reg ards the issue of fraud" a net opinion and thus dismissed his ent ire opinion as inadmissible. The judge thus failed to consider Zwir n's opinion that neither Computer Network Solutions nor IC System had the necessary New Jersey licenses to design and insta ll the sort of closed circuit camera monitoring system they provided to North Jersey , 6 that defendants could not have installed the camera s they promised for the press room, as it was not even wired for cameras, that the outdoor wiring was improperly insta lled and that defendants had used unlicensed

e lectricians 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 installati on 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 ca mera 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 camer as, the engineering, the design, and the installation."21 A - 2898
- 14T1

The judge similarly dismissed the expert opinion of North Jersey's certifie d 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 manag eme nt 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 c onclusions. The judge specifically dismissed R echtman'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
frau d "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 were22 A - 2898
- 14T1 c omfortable 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 bu siness 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 Pl aintiff." In our vie w, the last sentence highlights the problem here. The judge assumed in deciding the motion that the transactions
bet ween North Jersey and IC System were "negotiated at arms' length," when the premise of North Jersey's case was that the relationship betwee n 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 pa rty, n or 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

Res cue 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 i ssue 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 qualifi ed 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 abl e 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 conclus ion 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 substand ard or not as represent ed; maintenance and spare parts for new camera s under manufacturer's warranty were not consiste nt with industry practice; the pricing grossly exceeded industry standards and defendants' own established gross prof it 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 o n facts in the record, his personal observations and the type of information commonly relied on by experts forming opinions on the same subject , s ee
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 t o 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 compa ny had rejected; failed to obtain the best pr ices for goods and services; failed to ensure Computer Network Solutions and IC System were capable of handling projects assigned t o them and purchased goods and services from defendants at grossly inflated

rate s , 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 reje cting 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 a nd civil conspiracy to have survived summary26 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 credibi lity 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 jur y will find, at this late date, that Van Lenten colluded with defendants to bilk North Jersey out of millions of do llars in the course of providing it IT equipment and services. I t 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 i t is for the jur y , and not the trial judge , to determine what evidence is credible, what inferences should be
drawn and whether defendant s breached a ny 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 th e 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 j udge who heard the matter has already weighed the evidenc e 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; r eversed in part and reman ded .