SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-2421-22 

LEROY KAY, 

 Plaintiff-Respondent, 

v.

SCI NEW JERSEY FUNERAL 

SERVICES, LLC, d/b/a 

BLOOMFIELD-COOPER 

JEWISH CHAPELS,1

MARK R. HARRIS, 

individually and as manager, 

ANTHONY GERAHTY, 

MELANIE CHONGOLOLANESTOR, SARA GIUSTINO 

TOLAND, ROBERT P. 

SZEGETI, JAIME MAYNARD, 

all individually and as

funeral directors, and SUSAN 

BATKO, individually and as 

Advanced Planning Director, 

 Defendants-Appellants, 

and 

DIGNITY MEMORIAL 

1

 Improperly pled as Bloomfield-Cooper Jewish Chapels. 

NOT FOR PUBLICATION WITHOUT THE 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.
2 A-2421-22

CORPORATION, 

 Defendant.

______________________________ 

Argued October 3, 2023 – Decided January 9, 2024 

Before Judges Gooden Brown and Natali. 

On appeal from the Superior Court of New Jersey, Law 

Division, Monmouth County, Docket No. L-2407-22.

James-Harry Oliverio argued the cause for appellants 

(Anselmi & Carvelli, LLP, attorneys; James-Harry 

Oliverio, on the briefs).

Clifford David Bidlingmaier, III, argued the cause for 

respondent (Law Offices of Robin Kay Lord, LLC, and 

Bidlingmaier & Bidlingmaier, PC, attorneys; Robin 

Kay Lord and Clifford David Bidlingmaier, III, on the 

brief). 

PER CURIAM 

Defendants SCI New Jersey Funeral Services, LLC, d/b/a BloomfieldCooper Jewish Chapels,2

 improperly pled as Bloomfield-Cooper Jewish 

Chapels, its manager, and several directors appeal from the March 31, 2023, 

Law Division order denying their motion to compel arbitration and dismiss 

2

 It is unclear in the record how SCI New Jersey Funeral Services, LLC, d/b/a 

Bloomfield-Cooper Jewish Chapels, and Dignity Memorial Corporation are 

related. According to defendants' merits brief, Dignity Memorial Corporation 

"is not affiliated with [d]efendants." 
3 A-2421-22

plaintiff Leroy Kay's complaint without prejudice. We reverse and remand for 

limited discovery concerning the formation of the operative agreement and 

specifically whether the parties agreed to arbitrate any disputes. 

I.

Defendants provided mortuary services to plaintiff, an eighty-five-yearold widower who had just lost his wife of sixty-three years on October 3, 2020, 

when she died in her sleep at their home. The dispute arose from a disastrous 

mishap that occurred when defendants mishandled plaintiff's deceased wife's 

body while performing the mortuary services shortly after her death. 

In his ensuing complaint, filed nearly two years later, plaintiff asserted 

that he and his wife, Janet Kay, were "of the Jewish faith" and wished to be 

buried in accordance with its tenets. As a result, plaintiff contacted defendants 

because they held themselves out as "specializ[ing] in Jewish mortuary 

services," and on October 3, 2020, defendants took possession of the body along 

with specific clothing and jewelry for the burial. Plaintiff averred in his 

complaint that "a contract was formed" between plaintiff and defendants the 

following day, October 4, 2020, "for mortuary services," and for Janet's3 remains 

to be "entombed" at "Mount Sinai Cemetery in Morganville." Plaintiff and 

3

 We use first names because of the common surname and intend no disrespect. 
4 A-2421-22

defendants agreed that the funeral would take place on October 6, 2020, and that 

defendants would prepare and transport Janet's body to the cemetery. 

According to the complaint, about sixty "friends and family [members]" 

gathered with plaintiff at Mount Sinai Cemetery on October 6, 2020, for the 

scheduled funeral service. However, after a prolonged delay, defendant's 

representative contacted plaintiff and asked questions "indicat[ing] that they had 

lost the remains of [the decedent]." During a FaceTime call initiated by the 

representative, plaintiff and family members were shown a deceased woman 

who was not plaintiff's wife but wearing her clothing and jewelry. Plaintiff and 

the guests were distraught. Nevertheless, due to the number of family and 

friends who had traveled to attend the service, the service continued at the 

mausoleum without Janet's body. 

The complaint asserted that later in the day, defendants contacted plaintiff 

and informed him that Janet "was found . . . buried in [n]orthern New Jersey" 

"in the wrong cemetery," "in the wrong clothes," "with another woman's 

jewelry" and "next to a deceased man she [did] not know." The following day, 

October 7, 2020, after Janet's exhumation was approved, her body was 

disinterred from the northern New Jersey burial site. On October 8, 2020, after 

plaintiff's daughter travelled to defendants' facilities in Manalapan to identify 
5 A-2421-22

Janet's decomposing body, Janet's final funeral service was held with members 

of the immediate family in attendance. At the conclusion of the service, 

defendants' representative "had [plaintiff] sign a contract" without "explaining" 

or "giving him the opportunity to review the document." Instead, plaintiff 

alleged the representative gave the impression that "they [would] handle 

everything." 

In the complaint, plaintiff asserted the following causes of action: (1) loss 

of right to interment; (2) breach of contract; (3) violation of the New Jersey 

Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to –228; (4) negligent infliction of 

emotional distress; (5) intentional infliction of emotional distress; and (6) 

negligence. Attached to the complaint was a copy of the contract, showing an 

unpaid balance of $13,241.12. 

The three-page contract, which is dated October 4, 2020, contained two 

provisions that referenced arbitration. The first provision, located on the second 

page above the signature line, read, "NOTICE: BY SIGNING THIS 

AGREEMENT, YOU ARE AGREEING THAT ANY CLAIM YOU MAY 

HAVE AGAINST THE SELLER SHALL BE RESOLVED BY ARBITRATION 

AND YOU ARE GIVING UP YOUR RIGHT TO A COURT OR JURY TRIAL 

AS WELL AS YOUR RIGHT OF APPEAL." (Boldface omitted). A statement 
6 A-2421-22

incorporating terms and conditions from the third page of the contract appeared 

above the notice referenced above, stating: "SEE OTHER SIDE FOR TERMS 

AND CONDITIONS THAT ARE PART OF THIS AGREEMENT. DO NOT 

SIGN THIS AGREEMENT BEFORE YOU READ IT OR IF IT CONTAINS 

ANY BLANK SPACES. YOU ACKNOWLEDGE RECEIPT OF AN EXACT 

COPY OF THIS AGREEMENT." (Boldface omitted). 

The referenced terms and conditions on the third page included an 

arbitration provision that read in pertinent part: 

ARBITRATION: YOU AGREE THAT ANY CLAIM 

YOU MAY HAVE RELATING TO THE 

TRANSACTION CONTEMPLATED BY THIS 

AGREEMENT (INCLUDING ANY CLAIM OR 

CONTROVERSY REGARDING THE 

INTERPRETATION OF THIS ARBITRATION 

CLAUSE) SHALL BE SUBMITTED TO AND 

FINALLY RESOLVED BY MANDATORY AND 

BINDING ARBITRATION IN ACCORDANCE WITH 

THE APPLICABLE RULES OF THE AMERICAN 

ARBITRATION ASSOCIATION ("AAA"); 

PROVIDED, HOWEVER, THAT THE FOREGOING 

REFERENCE TO THE AAA RULES SHALL NOT BE 

DEEMED TO REQUIRE ANY FILING WITH THAT 

ORGANIZATION, NOR ANY DIRECT 

INVOLVEMENT OF THAT ORGANIZATION. THE 

ARBITRATOR SHALL BE SELECTED BY 

MUTUAL AGREEMENT OF THE PARTIES. IF THE 

PARTIES FAIL TO OR ARE UNABLE TO AGREE 

ON THE SELECTION OF AN APPROPRIATE 

ARBITRATOR, THE AAA SHALL SELECT THE 

ARBITRATOR PURSUANT TO ITS RULES AND 
7 A-2421-22

PROCEDURES UPON THE APPLICATION OF ONE 

OR BOTH PARTIES. THIS AGREEMENT TO 

ARBITRATE ALSO APPLIES TO ANY CLAIM OR 

DISPUTE BETWEEN OR AMONG THE SELLER, 

YOU AS THE PURCHASER, ANY PERSON WHO 

CLAIMS TO BE A THIRD PARTY BENEFICIARY 

OF THIS AGREEMENT, ANY OF THE SELLER'S 

EMPLOYEES OR AGENTS, ANY OF THE 

SELLER'S PARENT, SUBSIDIARY, OR AFFILIATE 

CORPORATIONS, AND ANY OF THE EMPLOYEES 

OR AGENTS OF THOSE PARENT, SUBSIDIARY 

OR AFFILIATE CORPORATIONS.

[(Boldface omitted).] 

Below the arbitration clause was an integration clause which stated: 

This [a]greement contains all terms which have been

agreed upon by you and us relating to the goods and

services listed in the Statement of Funeral Goods and 

Services Selected. This [a]greement replaces all other 

discussions and agreements, whether oral or written, 

relating to those goods and services. No subsequent 

discussion or agreement can change the terms of this 

[a]greement unless it is written and is signed by both 

you and us. 

Relying on the arbitration provision in the contract, defendants moved to 

dismiss the complaint pursuant to Rule 4:6-2(a) and compel arbitration. In a 

certification opposing defendants' motion, plaintiff averred that he signed the 

contract on October 8, 2020, not October 4, 2020. Plaintiff asserted he signed 

the contract "on a podium . . . placed in front of [him] in the mausoleum" 

following his wife's funeral service "after having seen [his] wife's partially 
8 A-2421-22

decomposed body." Plaintiff certified he "was instructed to . . . sign what [he] 

believed to be an invoice presented by [defendant] Anthony Gerahty," one of 

the funeral directors. According to plaintiff, Gerahty "claimed that it needed to 

be signed so that the funeral home could 'pick up the bill.'" Plaintiff stated "[a]t 

no point [has he] ever been asked to . . . nor . . . paid . . . [d]efendants for the 

services and arrangements for [his] wife's funeral" and "at no time prior to 

October 8, 2020, did [he] ever discuss an arbitration agreement with . . . 

[d]efendants." 

On March 31, 2023, the motion judge conducted oral argument, positing 

that the issue before the court was "whether . . . the [arbitration] agreement 

[was] valid, and . . . whether this dispute falls within the agreement's scope." 

Defendants argued that the funeral services agreement was a valid contract 

containing an arbitration clause applicable to claims by both parties and required 

resolution by an arbitrator of any claims concerning the transaction or any 

related wrongdoing. Defendants further asserted that plaintiff's challenge to the 

enforceability of the contract as a whole, which included lack of consideration, 

fraud, duress, misrepresentation, and unconscionability, was a matter statutorily 

reserved for the arbitrator pursuant to N.J.S.A. 2A:23B-6 under Prima Paint 

Corp. v. Flood & Conklin Manufacturing Co., 388 U.S. 395 (1967). 
9 A-2421-22

Plaintiff countered that he entered into an oral agreement with defendants 

on October 4, 2020, which did not include any mention of an arbitration 

agreement. Therefore, according to plaintiff, the October 4, 2020, oral 

agreement rendered the arbitration clause contained in the October 8, 2020, 

invoice invalid under Bernetich, Hatzell & Pascu, LLC v. Medical Records 

Online, Inc., 445 N.J. Super. 173, 184 (App. Div. 2016), where this court held 

that "a party may not impose an arbitration clause after the parties have already 

exchanged consideration and created an enforceable contract." Plaintiff also 

argued the arbitration provision was unenforceable because there was no 

meeting of the minds or mutual assent, as the agreement was presented to him 

as simply an invoice acknowledging receipt of funeral services. Alternatively, 

plaintiff asserted the October 8, 2020, agreement was procedurally 

unconscionable and a contract of adhesion. 

In an order entered on March 31, 2023, the judge denied defendants' 

motion. In an oral decision, the judge acknowledged that "the parties actually 

entered into an oral contract previously, where no arbitration was discussed." 

However, the judge determined the subsequent written contract entered on 

October 8, 2020, following "an alleged breach . . . contain[ed] the required 

mutual assent required to enforce an arbitration provision." Further, the judge 
10 A-2421-22

found that "the terms of the arbitration provision [were] clear and 

unambiguous," and plaintiff's dispute "aris[ing] out of funeral services 

rendered" fell "within the scope" of the agreement. 

Nevertheless, the judge relied on Moore v. Woman to Woman Obstetrics 

& Gynecology, L.L.C., 416 N.J. Super. 30, 37-38 (App. Div. 2010), where this 

court stated that "courts may decline to enforce when well-established principles 

addressing the absence of a consensual agreement and unfairness in contracting 

and the agreement warrant relief." Applying Moore's principles, the judge

declined to enforce the agreement to arbitrate on the ground of 

"unconscionability." 

The judge explained: 

[I]t's presently disputed as to when plaintiff signed the 

subject contract, and the circumstances surrounding the 

signature. The [c]ourt finds that his age, regarding 

what could be a sophisticated business term, that the 

bargaining tactics, and more importantly, the particular 

setting, all weigh in favor of a finding of procedural 

unconscionability under Muhammad[ v. County Bank 

of Rehoboth Beach, 189 N.J. 1 (2006)]. 

The fact that he was told it was just an invoice he 

needed to sign off on also weighs against finding 

otherwise. 

The judge noted further, 
11 A-2421-22

if the paper contract was not presented to plaintiff until

after the funeral, plaintiff would have been in a position 

where he essentially had to accept the terms of [the] 

contract, which would indicate lack of . . . consent, 

especially in reviewing how the services were rendered, 

which would make it more of an adhesion contract. 

 . . . Last but not least, it would not be in the 

public interest to enforce an arbitration clause under 

these circumstances. 

This appeal followed. 

On appeal, defendants raise the following points for our consideration: 

POINT I 

THE LAW DIVISION ERRED BY NOT DISMISSING 

THE COMPLAINT SO THAT AN ARBITRATOR 

CAN DETERMINE THE VALIDITY AND 

ENFORCEABILITY OF THE CONTRACT 

CONTAINING THE ARBITRATION PROVISION. 

(NOT RAISED BELOW). 

POINT II

THE DECISION BELOW SHOULD BE REVERSED 

BECAUSE THE LAW DIVISION'S FINDING THAT 

THE ARBITRATION PROVISION WAS 

PROCEDURALLY UNCONSCIONABLE WAS NOT 

SUPPORTED BY ADEQUATE, SUBSTANTIAL 

AND CREDIBLE EVIDENCE. 

A. Plaintiff Failed to Carry His Burden 

That the Arbitration Agreement was 

Unconscionable. 
12 A-2421-22

B. Alternatively, The Law Division 

Should Have Permitted Limited Discovery 

on the Conscionability Issue. 

II. 

 In reviewing an order on a motion to compel arbitration, the principles 

governing our analysis are well-established. 

We review a trial court's order granting or 

denying a motion to compel arbitration de novo because 

the validity of an arbitration agreement presents a

question of law. Skuse v. Pfizer, Inc., 244 N.J. 30, 46 

(2020) (citing Kernahan v. Home Warranty Adm'r of 

Fla., Inc., 236 N.J. 301, 316 (2019)). As a result, we 

"need not give deference to the [legal] analysis by the 

trial court." Goffe v. Foulke Mgmt. Corp., 238 N.J. 

191, 207 (2019) (citing Morgan v. Sanford Brown Inst., 

225 N.J. 289, 303 (2016)). 

New Jersey has a long-standing policy favoring 

arbitration as a means of dispute resolution. See 

Flanzman v. Jenny Craig, Inc., 244 N.J. 119, 133 (2020) 

("Like the federal policy expressed by Congress in the 

FAA,[4] 'the affirmative policy of this State, both 

legislative and judicial, favors arbitration as a 

mechanism of resolving disputes.'" (quoting Martindale 

v. Sandvik, Inc., 173 N.J. 76, 92 (2002))). "Although 

'arbitration [is] a favored method for resolving disputes 

. . . [t]hat favored status . . . is not without limits.'" 

Gayles by Gayles v. Sky Zone Trampoline Park, 468 

N.J. Super. 17, 23 (App. Div. 2021) (alterations in

original) (quoting Garfinkel v. Morristown Obstetrics 

& Gynecology Assocs., PA, 168 N.J. 124, 131-32 

(2001)). 

4

 FAA refers to the Federal Arbitration Act, 9 U.S.C. §§ 1-16. 
13 A-2421-22

"An arbitration agreement must be the result of 

the parties' mutual assent, according to customary 

principles of state contract law." Skuse, 244 N.J. at 48 

(citing Atalese v. U.S. Legal Servs. Grp., LP, 219 N.J. 

430, 442 (2014)). "Thus, 'there must be a meeting of 

the minds for an agreement to exist before enforcement 

is considered.'" Ibid. (quoting Kernahan, 236 N.J. at 

319). 

[Santana v. SmileDirectClub, LLC, 475 N.J. Super. 

279, 285 (App. Div. 2023) (alterations in original).]

Therefore, "[t]he first step in considering plaintiff's challenge to 

enforcement of an arbitration requirement must be to determine whether a valid 

agreement exists." Martindale, 173 N.J. at 83; see also N.J.S.A. 2A:23B-6(b). 

In determining validity, "arbitration agreements may not be subjected to more 

burdensome contract formation requirements than that required for any other 

contractual topic." Martindale, 173 N.J. at 83. As such, "'[g]enerally applicable 

contract defenses, such as fraud, duress, or unconscionability, may be applied to 

invalidate arbitration agreements without contravening [the FAA],'"

Muhammad, 189 N.J. at 12 (emphasis omitted), and in New Jersey, "[i]t is well 

settled that courts 'may refuse to enforce contracts that are unconscionable,'" id.

at 15 (quoting Saxon Constr. & Mgmt. Corp. v. Masterclean of N.C., Inc., 273 

N.J. Super. 231, 236 (App. Div. 1994)). 
14 A-2421-22

There are two types of unconscionability, procedural and substantive. 

Delta Funding Corp. v. Harris, 189 N.J. 28, 55 (2006) (Zazzali, J., concurring in 

part and dissenting in part) (citing Sitogum Holdings, Inc. v. Ropes, 352 N.J. 

Super. 555, 564 (Ch. Div. 2002)). Pertinent to this appeal, procedural 

unconscionability includes "a variety of inadequacies, such as age, literacy, lack 

of sophistication, hidden or unduly complex contract terms, bargaining tactics, 

and the particular setting existing during the contract formation process," 

Muhammad, 189 N.J. at 15 (quoting Sitogum Holdings, Inc., 352 N.J. Super. at

564). 

Terms within a contract of adhesion, "'[a] contract where one party . . . 

must accept or reject the contract,'" Rudbart v. N. Jersey Dist. Water Supply 

Comm'n, 127 N.J. 344, 353 (1992) (alterations in original) (quoting Vasquez v. 

Glassboro Serv. Ass'n, 83 N.J. 86, 104 (1980)), "necessarily involve indicia of 

procedural unconscionability," Muhammad, 189 N.J. at 15 (citing Rudbart, 127 

N.J. at 356). "'[T]he essential nature of a contract of adhesion is that it is 

presented on a take-it-or-leave-it basis, commonly in a standardized printed

form, without opportunity for the "adhering" party to negotiate except perhaps 

on a few particulars.'" Ibid. (quoting Rudbart, 127 N.J. at 353). "The 
15 A-2421-22

determination that a contract is one of adhesion, however, 'is the beginning, not 

the end, of the inquiry.'" Ibid. (quoting Rudbart, 127 N.J. at 354). 

As such, a contract of adhesion is not by its nature alone unenforceable. 

Rudbart, 127 N.J. at 354. Instead, as the Court set forth in Rudbart, courts 

should look to additional factors such as "[1] the subject matter of the contract, 

[2] the parties' relative bargaining positions, [3] the degree of economic 

compulsion motivating the 'adhering' party, and [4] the public interests affected 

by the contract." Id. at 356. These factors "determine whether the contract is

so oppressive, or inconsistent with the vindication of public policy, that it would 

be unconscionable to permit its enforcement." Delta Funding Corp., 189 N.J. at

40 (citations omitted). Where there are allegations of unconscionability, courts 

must conduct a fact-sensitive analysis. Muhammad, 189 N.J. at 15-16. But the 

burden of proving the defense of unconscionability is on the party challenging 

the enforceability of the agreement. Martindale, 173 N.J. at 91. 

Defendants argue that because plaintiff challenged "the enforceability and 

validity of the [c]ontract as a whole," rather than specifically challenging the 

arbitration provision itself, under Prima Paint, 388 U.S. at 403-04, Goffe, 238 

N.J. at 195, and N.J.S.A. 2A:23B-6, an arbitrator should have determined the 
16 A-2421-22

threshold issue of the container contract's overall validity and enforceability. 

We disagree. 

We explained the holdings in Prima Paint and Goffe in Largoza v. FKM 

Real Estate Holdings, Inc., 474 N.J. Super. 61 (App. Div. 2022) as follows: 

In [Prima Paint], the United States Supreme 

Court, relying on the [FAA], concluded that arbitration 

clauses are severable from other provisions in the 

contracts in which they are embedded, despite general 

fraud in the inducement claims, unless such claims 

pertain to the arbitration clause specifically. Similarly, 

in Rent-A-Center, [West], Inc. v. Jackson, 561 U.S. 63, 

72 (2010), the Court enforced a provision in an 

arbitration agreement delegating the question of 

arbitrability to the arbitrator despite a challenge to the 

validity of the contract as a whole. 

Our Supreme Court followed Prima Paint and 

Rent-A-Center in [Goffe], and concluded that the 

plaintiffs' claims were subject to an enforceable 

arbitration agreement. In Goffe, the plaintiffs 

"attack[ed] the sales contracts in their entirety, 

challenging their formation process and arguing that 

they [were], at best, unenforceable." [238 N.J.] at 195. 

Plaintiffs did not, however, challenge the validity of the 

arbitration clause specifically. Ibid. Accordingly, the 

Court held that "the arbitration agreement [was] 

severable and enforceable" and required the plaintiffs 

to arbitrate their claims. Id. at 216-17. Similarly, in 

Van Syoc v. Walter, 259 N.J. Super. 337, 339 (App. 

Div. 1992), we enforced an arbitration clause despite 

allegations of fraudulent inducement as to the contract, 

reasoning "[u]nless the arbitration provision itself was 

a product of fraud, the election should be enforced." 
17 A-2421-22

[Largoza, 474 N.J. Super. at 74-75 (fifth, sixth, eighth, 

and ninth alterations in original).] 

Here, plaintiff maintains the parties entered into a binding oral agreement 

that did not include any arbitration provision, followed by a written agreement 

containing a new and unconscionable arbitration clause. Unlike Goffe, plaintiff 

challenges the enforceability of the arbitration provision contained in the written 

version of the agreement. Under such circumstances, as we stated in Knight v. 

Vivint Solar Developer, LLC, 

[T]he arbitrator cannot decide the validity of the 

[contract], unless and until the trial court initially 

resolves the issues of fact pertaining to the formation of 

the arbitration provision, and determines the parties 

agreed to arbitrate their claims. Absent that agreement, 

the arbitrator is not empowered to determine plaintiff's 

issues concerning the formation and execution of the 

[contract]. In that regard, we are unpersuaded by 

defendants' argument that because the arbitration 

agreement is contained within the [contract], which

plaintiff also challenges, the arbitrator must determine 

its validity. In our view, that procedure puts the cart 

before the horse. 

[465 N.J. Super. 416, 428 (App. Div. 2020).] 

We acknowledge that the written contract included an integration clause 

stating it "replace[d] all other discussions and agreements, whether oral or 

written, relating to th[e] goods and services." We also note, however, that the 

written agreement was a contract of adhesion, presented to plaintiff for signature 
18 A-2421-22

on a take-it-or-leave-it basis, after the funeral services had already been rendered 

and leaving nothing for plaintiff to negotiate. 

Defendants claim that without limited discovery, invalidating the 

arbitration provision on unconscionability grounds was not supported by 

adequate, substantial, and credible evidence. We agree that limited discovery is 

appropriate here. See Guidotti v. Legal Helpers Debt Resol., L.L.C., 716 F.3d 

764, 776 (3d Cir. 2013) (requiring limited discovery on the question of 

arbitrability when the party opposing arbitration "has responded to a motion to 

compel arbitration with additional facts sufficient to place the agreement to 

arbitrate in issue"). 

Stated differently, we are convinced that the facts in the record are 

insufficient to permit a full and proper consideration of the Rudbart factors and 

a remand is appropriate to permit further discovery and factual findings on those 

factors. Specifically, after reviewing plaintiff's certification, questions remain 

regarding his level of sophistication, his capacity to review and understand the 

agreement, and whether he was unduly influenced by other factors. In reaching 

our conclusion, we recognize that generally, defendants do not dispute the 

circumstances leading to the agreement's execution, including the fact that the 

agreement was presented as an invoice for services already performed as well 
19 A-2421-22

as the horrendous series of events leading to Janet's final funeral service at 

Mount Sinai Cemetery. Nevertheless, we remain convinced that discovery 

limited to the issues of arbitrability and unconscionability is necessary and 

appropriate as critical unresolved facts relevant to unconscionability are within 

plaintiff's knowledge and control. Cf. Friedman v. Martinez, 242 N.J. 449, 472 

(2020) (holding summary judgment is inappropriate "when discovery is 

incomplete and 'critical facts are peculiarly within the moving party's 

knowledge'" (quoting James v. Bessemer Processing Co., 155 N.J. 279, 311 

(1998))). 

Reversed and remanded. We do not retain jurisdiction.