SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0424-21

ARTHUR AARON, individually

and derivatively on behalf of

Nominal Defendant SARA KETY 

LLC,

Plaintiff-Appellant,

v.

FRANK ORTEGA, and 

ORTEGA & DI LEONARDO,

Defendants-Respondents, 

and 

SARA KETY LLC, 

Nominal Defendant.

____________________________

Submitted September 13, 2022 – Decided October 11, 2022

Before Judges Gilson and Rose.

On appeal from the Superior Court of New Jersey, Law 

Division, Bergen County, Docket No. L-1977-21.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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A-0424-21

Sragow & Sragow, attorneys for appellant (Allen P. 

Sragow, on the briefs).

Kaufman Dolowich & Voluck, LLP, attorneys for 

respondents (Robert A. Berns and Timothy M. 

Ortolani, of counsel and on the brief).

PER CURIAM

Plaintiffs Arthur Aaron (Aaron) and Sara Kety LLC (SK LLC) appeal 

from an August 27, 2021 order that dismissed with prejudice their complaint 

against Frank Ortega (Ortega) and Ortega & Di Leonardo (O & D). The motion 

judge dismissed the complaint based on the entire controversy doctrine, as well 

as principles of res judicata, collateral estoppel, and the law of the case doctrine. 

The judge also held that the claims were precluded by the New Jersey 

Accountant Liability Act (the Accountant Act), N.J.S.A. 2A:53A-25.

Because plaintiffs' claims were or could have been asserted in a prior 

litigation, we affirm based on the entire controversy doctrine. We also affirm 

the dismissal of the claims based on the Accountant Act.

I.

We summarize the relevant facts and procedural history based on the 

pleadings and motion papers filed in this action and the previous action. We 

view the facts and procedures in the light most favorable to plaintiffs, the nonmoving parties. See Diaz v. Reynoso, 468 N.J. Super. 73, 88 (App. Div. 2021).
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The facts involve the relationship among three individuals, two 

companies, and an accountant. In 2004, Aaron and Marc Steinberg (Steinberg) 

formed a corporation named A & M Cards Worldwide, Inc. (A & M Cards). 

Four years later in 2008, Steinberg and Sara Kety (Kety) formed a company to 

sell baby clothing, which they later named Sara Kety LLC. Thereafter, Aaron 

became a member of SK LLC with a one-third ownership interest. Steinberg 

and Kety owned the remaining two-thirds interest in SK LLC. Ortega, through 

his accounting firm O & D, was the accountant for SK LLC.

In 2009, A & M Cards borrowed $300,000 from the Bank of New Jersey 

(NJ Bank), and Aaron and Steinberg guaranteed the repayment of that loan. For 

a period of time, SK LLC made installment payments to NJ Bank to repay part 

of the A & M Cards loan.

In February 2018, NJ Bank sued A & M Cards, Aaron, and Steinberg,

alleging that they had defaulted on the repayment of the loan (the First Action). 

Aaron filed an answer, counterclaims, crossclaims, and third-party complaint in 

the First Action. In his crossclaims and third-party complaint, Aaron asserted 

claims against Steinberg and Kety. He also asserted claims derivatively against 

them on behalf of SK LLC. Aaron alleged that beginning in May 2011, 

Steinberg and Kety caused SK LLC to improperly distribute profits by paying 
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themselves weekly salaries and improperly account for some of their personal 

expenses as business expenses. Aaron further alleged that those improper 

payments and expenses damaged him by reducing his profits from SK LLC. 

In his third-party complaint against Ortega, Aaron alleged that Ortega was 

the accountant for SK LLC and that he improperly accounted for the payments 

to Kety and Steinberg and their personal expenses. Aaron asserted causes of 

action against Ortega for negligence, aiding and abetting Kety's and Steinberg's 

breaches of fiduciary duties, and breach of fiduciary duty. In his third-party 

complaint, Aaron identified Ortega as "Frank Ortega of Ortega & Di Leonardo 

(Ortega)."

In June 2018, Ortega moved to dismiss Aaron's third-party complaint in 

the First Action arguing, among other things, that Aaron could not bring a claim 

against him under the Accountant Act. While that motion was pending, in July 

2018, Aaron submitted an amended third-party complaint asserting claims 

against Ortega and O & D. Aaron also asserted derivative claims on behalf of 

SK LLC against Ortega and O & D. That amended third-party complaint, 

however, was not accepted for filing because Aaron had not moved for 

permission to file the amended pleading.
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On August 3, 2018, the trial court in the First Action dismissed Aaron's 

claims against Ortega without prejudice. The court held that Aaron, who was 

not Ortega's client, could not bring what were essentially third-party 

professional negligence claims against Ortega under the Accountant Act. The 

trial court also noted that Aaron had not submitted the required affidavit of 

merit. 

In granting the motion to dismiss, the court acknowledged that Aaron had 

attempted to amend his third-party complaint, but the amendment had not been 

effective because it was not made by the required motion. The trial court 

accordingly noted that the amended third-party complaint was not properly 

before it. The court then dismissed the claims against Ortega without prejudice.

Shortly thereafter, in September 2018, the trial court in the First Action 

entered a case management order requiring that any motion to amend be filed 

by March 1, 2019. Aaron never sought leave to file an amended complaint 

against Ortega and O & D in the First Action. Discovery in the First Action 

concluded in December 2019, and the case was first scheduled for trial on March 
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2, 2020. Because of the COVID-19 pandemic, the trial was thereafter adjourned 

and did not take place in 2021.1

In March 2021, Aaron, individually and derivatively on behalf of SK LLC, 

filed a separate action against Ortega and O & D (the Second Action). In the 

Second Action, Aaron and SK LLC asserted nearly identical allegations and 

claims against Ortega and O & D as they had asserted or had attempted to assert 

in the First Action. In that regard, the complaint in the Second Action alleged 

causes of action for negligence, aiding and abetting Kety's and Steinberg's 

breaches of fiduciary duties, and breaches of fiduciary duties. 

Ortega and O & D moved to dismiss the complaint in the Second Action,

arguing that the claims were barred by the entire controversy doctrine, as well 

as principles of res judicata and collateral estoppel. Ortega and O & D also 

argued that the claims in the Second Action were precluded by the Accountant 

Act under the law of the case doctrine.

The motion was heard by the same judge who was handling the First 

Action. The judge treated the motion to dismiss as a motion for summary 

judgment and allowed Aaron and SK LLC to file a responding statement of facts. 

1 The parties informed us that as of February 2022, the trial in the First Action 

had still not been scheduled or conducted.
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Thereafter, on August 27, 2021, the motion judge heard arguments, issued a 

written opinion, and entered an order dismissing with prejudice the complaint 

in the Second Action.

The motion judge found that the allegations and claims in the Second 

Action were "identical, in all material ways," to the allegations and claims that 

Aaron asserted or had attempted to assert in the First Action. In that regard, the 

motion judge stated: "Aaron also could have asserted any viable claims against 

Ortega [and O & D] in the [First Action] – via an appropriate motion to amend 

– but Aaron chose not to do so." The motion judge therefore held that the claims 

in the Second Action were barred by the entire controversy doctrine, the law of 

the case doctrine, and principles of res judicata and collateral estoppel. The 

motion judge also held that the claims derivatively asserted on behalf of SK LLC 

were barred because Aaron had attempted to assert those claims in the First 

Action, but the amended third-party complaint had not been properly filed, the 

court had given Aaron until March 2019 to move to file an amended third-party 

complaint, and Aaron and SK LLC had failed to file that motion in the First 

Action. 

Aaron, individually and derivatively on behalf of SK LLC, now appeals

from the August 27, 2021 order.
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II.

On appeal, plaintiffs make four arguments. They contend that the motion 

judge in the Second Action erred in (1) dismissing the complaint under the entire 

controversy doctrine because the doctrine does not require party joinder; (2) 

dismissing the complaint under the law of the case doctrine because SK LLC 

was a client of Ortega and O & D; (3) dismissing the complaint because the 

claims and parties in the Second Action were not the same as in the First Action; 

and (4) dismissing the complaint based on the Accountant Act. Given the 

proceedings in the First Action, we hold that the claims in the Second Action 

were barred by the entire controversy doctrine. We also hold that Aaron's 

individual claims against Ortega and O & D were precluded by the Accountant 

Act and Aaron did not properly bring derivative claims on behalf of SK LLC.

Appellate courts use a de novo standard when reviewing an order granting 

summary judgment or dismissing a complaint for failure to state a cause of 

action. RSI Bank v. Providence Mut. Fire Ins. Co., 234 N.J. 459, 472 (2018); 

State ex rel. Campagna v. Post Integrations, Inc., 451 N.J. Super. 276, 279 (App. 

Div. 2017). Moreover, the application of the entire controversy doctrine and the 

Accountant Act involve questions of law and, accordingly, we review those 

issues de novo. See Higgins v. Thurber, 413 N.J. Super. 1, 6, 14 (App. Div. 
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2010), aff'd, 205 N.J. 227 (2011); Correa v. Grossi, 458 N.J. Super. 571, 577 

(App. Div. 2019).

A. The Entire Controversy Doctrine.

The entire controversy doctrine, codified in Rule 4:30A, is rooted in the 

goal of encouraging parties to resolve all their disputes in one action. 

Dimitrakopoulos v. Borrus, Goldin, Foley, Vignuolo, Hyman & Stahl, P.C., 237 

N.J. 91, 98 (2019); see also Kent Motor Cars, Inc. v. Reynolds & Reynolds, Co., 

207 N.J. 428, 443 (2011) (noting that the doctrine finds its support in our State 

Constitution and the goal "that all matters in controversy between the parties 

may be completely determined" (quoting N.J. Const. art. VI, § III, ¶ 4)); Pressler 

& Verniero, Current N.J. Court Rules, cmt. 1 on R. 4:30A (2023). Underlying 

the doctrine "are the twin goals of ensuring fairness to parties and achieving 

economy of judicial resources." Kent Motor Cars, 207 N.J. at 443. 

"The entire controversy doctrine is fact sensitive and dependent upon the 

particular circumstances of a given case." 700 Highway 33 LLC v. Pollio, 421 

N.J. Super. 231, 236 (App. Div. 2011). At bottom, the doctrine is an equitable 

one. Hobart Bros. Co. v. Nat'l Union Fire Ins. Co., 354 N.J. Super. 229, 241 

(App. Div. 2002). "'[A]ccordingly, all parties involved in a litigation should at 

the very least present in that proceeding all of their claims and defenses that are 
10 A-0424-21

related to the underlying controversy.'" Wadeer v. N.J. Mfrs. Ins. Co., 220 N.J. 

591, 605 (2015) (quoting Highland Lakes Country Club & Cmty. Ass'n v. 

Nicastro, 201 N.J. 123, 125 (2009)). Moreover, "[t]he doctrine is intended to be 

applied to prevent a party from voluntarily electing to hold back a related 

component of the controversy in the first proceeding by precluding it from being 

raised in a subsequent proceeding thereafter." Oltremare v. ESR Custom Rugs, 

Inc., 330 N.J. Super. 310, 315 (App. Div. 2000).

The entire controversy doctrine has evolved over time. In that regard, 

mandatory party joinder under the doctrine was eliminated. See R. 4:5-1(b)(2); 

Pressler & Verniero, cmt. 1 on R. 4:30A. Nevertheless, preclusion of a 

successive action against a person not a party to the first action still applies in 

situations involving both inexcusable conduct and substantial prejudice to the 

non-party resulting from his or her omission from the first suit. Hobart Bros. 

Co, 354 N.J. Super. at 242.

Although the First Action was still pending when the Second Action was 

filed, the equitable principles under the entire controversy doctrine apply and 

preclude the Second Action. Aaron had attempted to file individual and 

derivative claims against Ortega and O & D in the First Action. Contrary to the 

rules, he did not file a motion and the amended third-party complaint was not 
11 A-0424-21

accepted. The court in the First Action gave Aaron almost a year to move to file 

an amended third-party complaint. Aaron failed to do so. He candidly admits 

that he did not have an expert to prepare the required affidavit of merit until 

August 2020. Instead of seeking leave to extend the discovery expert deadlines

in the First Action, Aaron filed the Second Action. 

The entire controversy doctrine applies to the Second Action for two 

reasons. First, Ortega was a party to the First Action and Aaron knew that 

Ortega was a member of the accounting firm O & D. Accordingly, Aaron could 

have and should have asserted claims against O & D.

Second, even if we were to consider O & D as an entity that was not a 

direct party in the First Action, it was inexcusable for Aaron not to assert a 

timely direct claim against O & D in the First Action. Ortega and O & D would 

also be subject to substantial prejudice if Aaron, individually or derivatively, 

was allowed to pursue claims in the Second Action. Ortega was granted a 

dismissal of all claims against him in the First Action in August 2018. 

Discovery in the First Action was completed, and a trial date was set. It would 

be prejudicial for Ortega or O & D to separately face claims that should have or 

could have been brought in the First Action.
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B. The Accountant Act.

The Accountant Act was enacted to "'limit accountants' liability to third 

parties for the accountants' negligent acts.'" Finderne Mgmt. Co. v. Barrett, 355 

N.J. Super. 197, 205 (App. Div. 2002) (quoting S. Com. Comm. Statement to 

S.826 (Oct. 13, 1994)). The Act allows negligence claims against the accountant 

by its client. N.J.S.A. 2A:53A-25(b)(1). The Accountant Act defines a "client" 

as "the party directly engaging an accountant to perform a professional 

accounting service." N.J.S.A. 2A:53A-25(a)(3).

The Accountant Act limits negligence claims by third parties and only 

allows non-clients to bring claims if they can establish three facts: 

The accountant:

(a) knew at the time of the engagement by the client, or 

agreed with the client after the time of the engagement, 

that the professional accounting service rendered to the 

client would be made available to the claimant, who 

was specifically identified to the accountant in 

connection with a specified transaction made by the 

claimant; 

(b) knew that the claimant intended to rely upon the 

professional accounting service in connection with that 

specified transaction; and 

(c) directly expressed to the claimant, by words or 

conduct, the accountant's understanding of the 

claimant's intended reliance on the professional 

accounting service[.]
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[N.J.S.A. 2A:53A-25(b)(2)(a) to (c).]

The Act defines a "specified transaction" as a "particular transaction 

between a client and a claimant." N.J.S.A. 2A:53A-25(a)(5). Consequently, for 

a non-claimant to sue an accountant for negligence, the claimant must plead and 

ultimately prove the three elements set forth in the Act. E. Dickerson & Son, 

Inc. v. Ernst & Young, LLP, 179 N.J. 500, 502 (2004) (citing N.J.S.A. 2A:53A25). 

Aaron's individual claims fail to satisfy the three elements of N.J.S.A. 

2A:53A-25(b)(2). While the complaint in the First and Second Actions made 

general accusations, neither complaint identified nor described a specified

transaction or transactions that would satisfy the requirements of the Accountant 

Act. Moreover, the motion to dismiss in the Second Action was converted to a 

motion for summary judgment, but Aaron failed to identify facts that would 

support the three elements required by the Accountant Act.

The derivative claims Aaron sought to assert on behalf of SK LLC also 

fail as a matter of law. The revised Uniform Limited Liability Company Act 

(the LLC Act), N.J.S.A. 42:2C-1 to -94, governs limited liability companies 

organized in and existing under the laws of New Jersey. N.J.S.A. 42:2C-91. 

The LLC Act restricts a member's ability to assert derivative claims that belong 
14 A-0424-21

to the LLC. N.J.S.A. 42:2C-67 to -68; see also Brown v. Brown, 323 N.J. Super. 

30, 36 (App. Div. 1999) (distinguishing between derivative actions, which are 

conditioned on injury or breach of duty to the corporation, and direct actions, 

involving injury sustained by a shareholder or member).

The LLC Act permits a member to "maintain a derivative action to enforce 

a right of a limited liability company" only if the member "makes a demand on 

the other members in a member-managed limited liability company . . . 

requesting that they cause the company to bring an action to enforce the right, 

and the . . . members do not bring the action within a reasonable time" or 

establish that making such a demand "would be futile." N.J.S.A. 42:2C-68(a) to 

(b). An LLC member bringing a derivative action must, in his or her complaint, 

state with particularity, "[t]he date and content of [his or her] demand and the 

response to the demand by the managers or other members" of the LLC or "[i]f 

a demand has not been made, the reasons a demand . . . would be futile." 

N.J.S.A. 42:2C-70(a) to (b). Generally, demand futility must be pled with 

particularity and the complaint must allege facts "creating a reasonable doubt 

that: (1) the directors are disinterested and independent, or (2) the challenged 

transaction was otherwise the product of a valid exercise of business judgment." 

In re PSE & G S'holder Litig., 173 N.J. 258, 286 (2002). 
15 A-0424-21

Aaron did not show that he made a demand of the other members of SK 

LLC prior to filing the derivative action. He did plead in the complaint that such 

a demand would be futile because the other members – Steinberg and Kety –

benefitted from Ortega's and O & D's alleged negligence and were involved in 

the acts that allegedly caused harm to SK LLC. The allegations, however, were 

conclusory and without detailed factual support. Just as importantly, in response 

to the motion, which was converted to a summary judgment motion, Aaron

failed to identify facts that would demonstrate his right to bring a derivative 

action on behalf of SK LLC.

In summary, we affirm the dismissal of the complaint in the Second 

Action. The claims were barred both by the entire controversy doctrine and the 

Accountant Act.

Affirmed.