SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4039-19

RIM BAOUAB,

Plaintiff-Appellant,

v.

2600 ASSOCIATION, INC.,

YAKNOW MANAGEMENT,

LLC, JOE WILLIAMS, FRAN

ARAGONA, STEVE

BOWMAN, MIKE CAMPBELL,

DANIEL LEVIN, and SHANTELL

MARTIN,

Defendants-Respondents.

______________________________

Submitted December 15, 2021 – Decided December 28, 2021

Before Judges Whipple and Geiger.

On appeal from the Superior Court of New Jersey, Law 

Division, Hudson County, Docket No. L-3760-18.

Rim Baouab, appellant pro se.

Leary Bride Mergner & Bongiovanni, PA, attorneys for 

respondents (Brian Peoples, on the brief).

NOT FOR PUBLICATION WITHOUT THE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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PER CURIAM

This case arises out of water infiltration from February to May 2018 into 

a condominium unit (Unit 10E), owned by plaintiff Rim Baouab, that is located 

on the top floor of The Hague Building in Jersey City. Plaintiff alleges that on 

February 11, 2018, a Nor'easter hit the area, causing a flood of water that 

infiltrated the roof of Unit 10E. Plaintiff also alleges second and third water 

intrusions in Unit 10E in February or March and May 2018. Plaintiff claims the 

water infiltration caused significant damage to the sheetrock, flooring, cabinets, 

molding, appliances, and other items in the Unit 10E. Plaintiff brought this 

action seeking damages for alleged negligence, breach of contract, and breach 

of fiduciary duty against the homeowners' association, its members, the building 

manager, and its sole member. 

Defendant 2600 Association, Inc. (the Association), is the condominium 

owners' association charged with upkeep, maintenance, and care of The Hague 

Building. Defendants Shantell Martin, Steve Bowman, Fran Aragona, Daniel 

Levin, and Mike Campbell are members of the Board of Trustees of the

Association. Defendant Yaknow Management, LLC (Yaknow) was hired by the

Association to maintain, oversee, and administer the common areas of The 

Hague Building. Defendant Joe Williams was the managing member of 
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Yaknow, which is no longer a registered business entity in New Jersey. There 

is no evidence that Williams had any personal contractual relationship with the

Association. 

Plaintiff appeals from Law Division orders: (1) barring plaintiff's expert 

report as a net opinion; (2) granting summary judgment to the trustees of the 

homeowners' association; (3) granting summary judgment to Williams; (4) 

dismissing plaintiff's claims for failure to substantiate her claims; and (5) 

denying reconsideration. 

On May 30, 2018, plaintiff filed a pro se verified complaint in the 

Chancery Division, alleging the following causes of action: (1) the right to 

injunctive relief compelling defendants the Association and its trustees to 

immediately repair the roof, among other immediate remedies (count one); (2) 

breach of covenant requiring injunctive relief and compensatory damages with 

respect to Unit 10E against the Association and its trustees for failing to repair, 

inspect, and detect the condition of the flooded roof (count two); (3) breach of 

covenant against the Association and its trustees; (4) breach of contract against 

the Association (count four); (5) breach of fiduciary duty against the Association 

and its trustees for failing to promptly repair the roof requiring injunctive relief 

and compensatory damages (count five); and (6) negligence against the
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Association, its trustees, Yaknow, and Williams for failing to exercise ordinary 

care in a reasonably safe and prudent manner by failing to inspect and repair the 

roof. 

Plaintiff sought injunctive relief: (a) "temporarily, preliminarily and 

permanently enjoining [the Association] and the Trustees from causing 

additional water damage to Unit 10E"; (b) "compelling the Association and its 

Trustees to repair the roof of The Hague Building and/or[] otherwise fix the 

water leaking into Unit 10E within three days of the order"; (c) "for specific 

performance of [the Association's] duties to repair and maintain the common 

areas, including the roof as well as the structural elements and interior of Unit 

10E that were damaged by water incursion within three days of the order"; and 

(d) awarding plaintiff $25,000 "to cover the relocation, temporary housing costs 

and storage fees for the tenant of Unit 10E while the repairs to that unit are 

made." Plaintiff also sought an award of compensatory damages, treble 

damages, punitive damages, attorney's fees and disbursements, interest, and 

costs of suit. 

The Chancery court issued an Order to Show Cause (OTSC) returnable 

July 13, 2018, that required defendants to appear and show cause why the 

injunctive relief sought by plaintiff should not be granted. On the return date of 
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the OTSC, the Chancery court granted injunctive relief, ordering defendants to: 

(1) submit to plaintiff's counsel the plan of a professional engineer regarding 

roof repairs; (2) repair and remediate the roof leak of the roof of Unit 10E, and 

if necessary, replace the roof; (3) submit conclusive evidence of remediations to 

plaintiff's counsel; (4) have Unit 10E inspected by a licensed contractor and 

professional engineer and provide a reasonable plan for repair and remediation 

to plaintiff's counsel; (5) repair and remediate all damage to Unit 10E caused by 

the water intrusions. 

On July 30, 2018, plaintiff requested entry of default against all 

defendants. On August 1, 2018, the Chancery court ordered that default be 

entered against defendants for failure to appear and scheduled a proof hearing 

for September 21, 2018. 

On August 22, 2018, the Chancery court conducted a case management 

conference and ordered: (1) default shall remain in place until further order; (2) 

the proof hearing was adjourned until the October 23 trial date; (3) paper 

discovery shall be answered by September 1; (4) plaintiff's expert reports shall

be served by September 21, and defendants' expert reports by October 21; (5) 

fact witness depositions shall be completed by September 23 and expert 
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depositions shall be completed by October 18; and (6) the parties shall confer 

and schedule the inspection of the property by expert witnesses. 

On September 14, 2018, the Chancery court granted defendants' informal 

request to vacate the default entered against the Association over plaintiff's 

objection. Five days later, the Chancery court transferred the case to the Law 

Division. The following month, plaintiff's counsel withdrew from representing 

plaintiff, who proceeded without counsel thereafter. 

The trial was adjourned, and the parties engaged in discovery, which was 

extended five times, ending on February 13, 2020. Plaintiff's motion to further 

extend discovery was denied. 

In June 2019, Yaknow, Williams, and the trustees filed a motion to vacate 

the default. The motion was granted. 

On November 20, 2019, plaintiff filed a motion to enforce litigant's rights. 

On January 14, 2020, the court granted the motion in part, ordering: (1) 

"[d]efendants to repair and remediate the leaking into Unit 10E from the roof 

and other sources, including replacement of the roof"; (2) "[d]efendants to 

submit conclusive evidence of remediation, including evidence of remediation 

of the violations concerning Unit 10E noticed in the Jersey City Fire 

Department's Notice of Violations dated May 22, 2018"; (3) permitting 
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"inspection of Unit 10E by a licensed contractor and a professional engineer 

within thirty (30) days"; (4) "[d]efendants to repair and remediate all damage to 

Unit 10E caused by the incursion of water into the Unit"; and (5) "[d]efendants 

to provide all known contact information for the owner of Unit 10C and for the 

owner's insurance carrier." The court denied plaintiff's request for sanctions and 

to compel service of a defense expert report before the discovery end date. 

On November 6, 2019, plaintiff's expert, Morse Associates, submitted its 

expert report, which was updated in January and February 2020. The report 

states that "[a]ll of the rooms in Unit 10E have been damaged by the water 

intrusion," with some rooms worse than others. The report opines that there are 

at least three or four areas "that have ongoing water intrusion that need to be 

repaired before repairs to the walls and ceilings are made." It further opined 

that all damaged areas were caused by the water intrusion, save for the damage 

to the master bedroom closet, which was caused by a leaking shower in the 

adjacent apartment. 

The report opined that the new roof system installed over the existing 

membrane was improperly installed and needed to be remediated and inspected 

on a semi-annual basis by a certified roofing contractor. 
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On February 14, 2020, defendants filed four dispositive motions to: (1) 

grant summary judgment to the individual trustees; (2) grant summary judgment 

to Williams; (3) bar plaintiff's expert opinion as a net opinion; and (4) dismiss 

plaintiff's claims for failure to substantiate her damages. On April 30, 2020, the 

court granted each motion, issuing four orders and a comprehensive eighteenpage memorandum of decision. 

First, the court found summary judgment should be granted in favor of the 

individual trustees. The court noted that the liability of the trustees is governed 

by the Business Judgment Rule (BJR), which limits liability to proven fraud, 

self-dealing, or unconscionable behavior. The court found plaintiff did not 

present any evidence of such conduct. The court explained:

Plaintiff argues that the mere fact that her Unit has 

suffered water damage is prima facie evidence that the 

Board abused its authority, meriting piercing the 

corporate veil and holding the individual members 

personally liable. The court disagrees. Though 

negligence by the condominium association may be a 

question of fact for the jury, the individual board 

members may be liable only upon a showing of fraud, 

self-dealing, or unconscionable behavior, which are 

questions of law reserved for the court. See Paplexiou 

v. Tower W. Condo., 167 N.J. Super. 516, 527 (Ch. 

Div. 1979). The BJR presents a lenient standard of 

conduct: a board need only have acted reasonably in 

exercising its business judgment. There is no evidence 

that the Board members engaged in fraud, self-dealing, 

or unconscionable conduct. The Affidavit of Stephen 
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M. Lattanzio, P.E., asserts that a roof membrane does 

not qualify as roof replacement under the 2018 

International Building Code Section 1511.3 and states 

that prior expert reports commissioned by [d]efendants 

in 2000, 2007, and 2014 opine that the roof required 

replacement and maintenance of the drainage system, 

to be initiated in 2015. He also states that [d]efendants 

did not provide any evidence supporting their decision 

to install the membrane instead of replacing the roof 

according to the 2018 International Building Code; that 

they have not provided any evidence of the standard of 

care prescribed publications of the National Roofing 

Contractors' Association in maintaining and repairing 

the roof and drainage system or its masonry; and that 

[d]efendants have not provided any evidence of 

remedial measures taken other than installing the roof 

membrane. Though this court also expressed doubt in 

its Addendum to Order dated January 14, 2020 

concerning the adequacy of the Nu-Tek membrane as a 

long-term remedy and enforced the Chancery 

Division’s order directing [d]efendants to replace the 

roof, it is [p]laintiff's burden to show that Defendants 

violated the BJR, not [d]efendants' burden to show 

compliance. At best, [d]efendants' use of the Nu-Tek 

membrane and other actions taken by the Board could 

be considered a practical business judgment and at 

worst, bad judgment. But courts will not second-guess 

the actions of directors unless it appears that they are 

the result of fraud, dishonesty or incompetence," 

[Paplexiou, 167 N.J. Super. at 527,] and "[b]ad 

judgment, without bad faith, does not ordinarily make 

officers individually liable." Alloco v. Ocean Beach & 

Bay Club, 456 N.J. Super. 124, 140 (App. Div. 2018) 

(quoting Maul v. Kirkman, 270 N.J. Super. 596, 614 

(App. Div. 1994)). The court therefore does not find 

that [d]efendants' actions warrant piercing the 

corporate veil . . . . 
10 A-4039-19

As for Williams, the court found that plaintiff proffered no evidence of 

fraudulent conduct by Williams that would warrant piercing the corporate veil 

to impose liability against Williams personally. 

Plaintiff's bare assertion that Mr. Williams owed an 

affirmative duty above and beyond his capacity as an 

employee of Yaknow Management because he was 

responsible for reporting issues on the property 

concerning the common elements is insufficient to 

support piercing the corporate veil. The [Association]

had a contract with Yaknow Management, LLC, not 

with Mr. Williams individually. The law of this State 

is clear that, short of a showing of fraudulent conduct, 

the corporate veil shall not be pierced to hold an 

individual member of an LLC liable for the company's 

actions. 

Next, the court found plaintiff's expert report by Morse Associates was 

admissible "regarding the causes of water damage to [p]laintiff's unit," but an 

inadmissible net opinion regarding estimated damages. The court stated that 

while "[a]n injured party may seek actual damages . . . 'that are real and 

substantial as opposed to speculative[,]' [d]amages must be proven with 

reasonable certainty." (Citations omitted). The court explained: 

Here, the court finds that [p]laintiff's expert 

report constitutes an inadmissible net opinion with 

respect to [p]laintiff's damages. . . . As the report is 

based on numerous prior expert reports and other 

sources, including the manufacturer's manual for the 

roof membrane and site inspections by Morse 

Associates, the court finds that the report's conclusions 
11 A-4039-19

regarding the causes of water damage to [p]laintiff's 

unit do not constitute an inadmissible net opinion. 

The damages estimate section of the Morse report 

consists of quotes from three different contractors 

listing the cost of services each would perform, the sum 

of which was either $74,215.18 or $82,715.18, 

depending on modifications to the work performed. A 

painting company provided a description of the work to 

be performed which was estimated to cost $19,688.31 

or $28,188.31 if [p]laintiff also had work performed on 

her kitchen cabinets. A plaster repair company listed 

the work to be performed at an estimated cost of 

$16,526.87. And a construction company estimated

that the cost of repair to the ceiling, walls, and water 

damage would be $38,000. Morse Associates provided 

each contractor with a scope of work and notes in its 

report that it intended to amend the report once it 

received documents related to roofing bids, which it 

apparently never received. It is unclear whether the 

other estimates are based on photos or verbal or written 

representations of the unit's condition provided by 

Morse Associates. It is also unclear if these numbers 

represent an average cost or are industry outliers, and 

no unit or labor costs were included. The court 

therefore finds that these unsubstantiated estimates 

constitute an inadmissible net opinion.

Finally, the court found plaintiff failed to substantiate her alleged 

damages. The court reasoned:

[Plaintiff] seeks as damages, inter alia, attorney's fees 

incurred prior to becoming self-represented, court 

filing fees, the cost of conducting or attending 

depositions, fact witness research, international travel, 

expert fees, unpaid rent which she would have received 

from [her tenant], childcare, and credit card interest 
12 A-4039-19

charges. Plaintiff also anticipates damages for having 

to hire an electrician to investigate and repair any 

corroded circuitry. She also listed mediation and 

international tax planning fees as prospective, presently 

uncalculated costs and seeks pre-and-post judgment 

interest and treble and punitive damages. Plaintiff did 

not attach invoices from her attorney prior to becoming 

self-represented; nor did she include receipts for her 

other itemized expenses. Plaintiff stated in her 

opposition papers that documentation substantiating 

her damages would be provided when discovery was 

over, that is, when [d]efendants served their 

outstanding discovery. But, as noted above, discovery 

has been five times in this case, the discovery end date 

has passed, and the Presiding Judge of the Civil 

Division denied [p]laintiff's latest motion to extend 

discovery. 

. . . . 

The transcript of the hearing for injunctive relief before 

[the Chancery judge] indicates that the [d]efendants and 

the [c]ourt agreed that the roof required repair and that 

plaintiff had been injured. But if [p]laintiff is unable to 

substantiate her damages so that a jury can ascertain the 

actual extent of her injury, then she is necessarily 

precluded from obtaining relief despite the injunction 

issued by the Chancery court. 

The court granted the dispositive motions and dismissed plaintiff's complaint

with prejudice but did not preclude plaintiff from seeking further relief in 

Chancery. 
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Plaintiff moved for reconsideration and clarification of the order barring 

plaintiff's expert. On June 12, 2020, the court issued an oral decision and 

accompanying order denying the motion. This appeal followed. 

Plaintiff raises the following points for our consideration:

POINT I

THE COURT ABUSED ITS DISCRETION BY 

GRANTING SUMMARY JUDGMENT IN FAVOR 

OF INDIVIDUAL TRUSTEES AND BUILDING 

MANAGER WILLIAMS BECAUSE DEFENDANTS 

BREACHED THEIR DUTY OF CARE, COVENANT 

AND FIDUCIARY DUTY TO PLAINTIFF AS AN 

ASSOCIATION MEMBER AND INVESTMENT 

PROPERTY OWNER.

POINT II

IN MATTERS OF PUBLIC HEALTH AND SAFETY, 

THE COURT ERRED BY CONCLUDING 

TRUSTEES' ACTIONS MUST BE GOVERNED BY 

THE BUSINESS JUDGMENT RULE ("BJR")[,]

FAILED TO APPLY THE REASONABLENESS 

STANDARD AND IGNORED THAT TRUSTEES 

ACTED REPEATEDLY IN A PALPABLY 

UNREASONABLE MANNER.

POINT III

THE COURT ABUSED ITS DISCRETION BY 

GRANTING DEFENDANTS' MOTION TO BAR 

PLAINTIFF'S EXPERT REPORT AND MOTION 

FOR SUMMARY JUDGMENT, ESSENTIALLY 

DISMISSING PLAINTIFF'S CASE FOR FAILURE 

TO SUBSTANTIATE DAMAGES.
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POINT IV

THE COURT ABUSED ITS DISCRETION BY 

DENYING PLAINITFF'S MOTION FOR 

RECONSIDERATION OF THE ORDERS DATED 

APRIL 30, 2020.

We find no merit in any of these arguments and affirm each of the 

dispositive orders entered in favor of defendants and the denial of 

reconsideration. 

We apply the same standard as the trial court in our review of summary 

judgment determinations. Lee v. Brown, 232 N.J. 114, 126 (2018). "Summary 

judgment is appropriate 'when no genuine issue of material fact is at issue and 

the moving party is entitled to a judgment as a matter of law.'" Ibid. (quoting 

Steinberg v. Sahara Sam's Oasis, LLC, 226 N.J. 344, 366 (2016)). We conduct 

a de novo review of the court's determination of legal issues, Ross v. Lowitz, 

222 N.J. 494, 504 (2015), and "its 'application of legal principles to such factual 

findings.'" Lee, 232 N.J. at 127 (quoting State v. Nantambu, 221 N.J. 390, 404 

(2015)). 

Under Rule 4:46-2(c), summary judgment is granted "if the pleadings, 

depositions, answers to interrogatories and admissions on file, together with the 

affidavits, if any, show that there is no genuine issue as to any material fact 
15 A-4039-19

challenged and that the moving party is entitled to a judgment or order as a 

matter of law." In applying the standard to our review of a summary judgment 

determination, we "must view the facts in the light most favorable to the nonmoving party." Bauer v. Nesbitt, 198 N.J. 601, 604 n.1 (2009); see also Brill v. 

Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). 

We first address the principles of liability that apply to trustees of a 

condominium association. Plaintiff named five trustees of the Association as 

defendants. The law is well-settled that the business judgment rule applies 

condominium associations and their trustees. 

The business judgment rule applies to 'common 

interest communities' such as the Club. Comm. for a 

Better Twin Rivers v. Twin Rivers Homeowners' Ass'n, 

192 N.J. 344, 369 (2007). Courts have "uniformly 

invoked the business judgment rule in cases involving 

homeowners' associations," because "a homeowners' 

association's governing body has 'a fiduciary 

relationship to the unit owners, comparable to the 

obligation that a board of directors of a corporation 

owes to its stockholders.'" Ibid. (quoting Siller v. Hartz 

Mountain Assocs., 93 N.J. 370, 382 (1983)). Similarly, 

"decisions made by a condominium association board 

should be reviewed by a court using the same business 

judgment rule which governs the decisions made by 

other types of corporate directors." Walker v. 

Briarwood Condo. Ass'n, 274 N.J. Super. 422, 426 

(App. Div. 1994).

[Alloco v. Ocean Beach & Bay Club, 456 N.J. Super. 

124, 134-35 (App. Div. 2018).] 
16 A-4039-19

As our Supreme Court has explained: 

The business judgment rule has its roots in corporate 

law as a means of shielding internal business decisions 

from second-guessing by the courts. Under the rule, 

when business judgments are made in good faith based 

on reasonable business knowledge, the decision makers 

are immune from liability from actions brought by 

others who have an interest in the business entity. The 

business judgment rule generally asks (1) whether the 

actions were authorized by statute or by charter, and if 

so, (2) whether the action is fraudulent, self-dealing or 

unconscionable. 

[Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 

175 (2011) (quoting Green Party v. Hartz Mountain 

Indus., 164 N.J. 127, 147-48 (2000)).] 

To "promote and protect the full and free exercise of the power of 

management given to the directors," the second prong of the business judgment 

rule "protects a board of directors from being questioned or second-guessed on 

conduct of corporate affairs, except in instances of fraud, self-dealing, or 

unconscionable conduct." In re PSE&G S'holder Litig., 173 N.J. 258, 276-77 

(2002) (quoting Maul v. Kirkman, 270 N.J. Super. 596, 614 (App. Div. 1994)). 

This principle applies with equal force to the trustees of a homeowner's 

association. Siller, 93 N.J. at 382. 
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"The business judgment rule creates 'a rebuttable presumption' that the 

actions of a Board are valid." Alloco, 456 N.J. Super. at 136 (quoting PSE&G 

S'holder Litig., 173 N.J. at 277). 

It places an initial burden on the person who challenges 

a corporate decision to demonstrate the decisionmaker's "self-dealing or other disabling factor." If a 

challenger sustains that initial burden, then the 

"presumption of the rule is rebutted, and the burden of 

proof shifts to the defendant or defendants to show that 

the transaction was, in fact, fair to the corporation." 

[Ibid. (quoting PSE&G S'holder Litig., 173 N.J. at 277)

(citations omitted).]

The evidence proffered by plaintiff was insufficient to rebut the 

presumption of validity and satisfy her initial burden of showing the Trustees' 

actions were fraudulent, self-dealing, or unconscionable. Plaintiff points to no 

facts to establish the trustees engaged in fraud, self-dealing, or unconscionable 

conduct. Indeed, plaintiff did not claim fraud or unconscionability and did not 

allege a cause of action under the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 

to -20. Instead, plaintiff simply refers to bad faith and bad judgment without 

specifying the underlying facts supported by citations to the record. 

Nor does the record support any claim that the Association or its trustees 

engaged in self-dealing or unconscionable conduct. Upon learning in February 

2018 of water infiltration into Unit 10E, the Association had the roof inspected. 
18 A-4039-19

Based on the results of that inspection, the Association had an aluminum roof 

coating installed above the leaking area of the roof in March 2018. The

Association then retained Fania Roofing, who found two cuts in the roof and a 

blister in the membrane in the area that was leaking. Fania Roofing treated the 

blister and repaired the cuts. Fania Roofing subsequently determined that the 

roof needed to be replaced. The Association retained Frank Pelligrino to 

produce drawings and specifications for the roof replacement. It then solicited 

three bids for the job and hired Nu-Tek Roofing Systems, Inc. to replace the 

roof. In the February 2020 update to the report of Morse Associates, plaintiff's 

own expert acknowledged that the new roof would continue to have "watertight

integrity" with regular inspections by a certified roofing contractor. "[T]he 

business judgment rule does not require [the trustees] to be construction 

experts." Alloco, 456 N.J. Super. at 141. 

A condominium association "is a representative body that acts on behalf 

of the unit owners. Its powers derive from its by-laws, the master deed, and 

applicable statutory provisions." Thanasoulis v. Winston Towers 200 Ass'n, 110 

N.J. 650, 656 (1988). "The most significant responsibility of a condominium

association is the management and maintenance of the common areas of the 

condominium complex." Id. at 656-57; see also N.J.S.A. 46:8B-12 ("The 
19 A-4039-19

association . . . is responsible for the administration and management of the 

condominium and condominium property . . . ."). "The [A]ssociation, acting 

through its officers or governing board, shall be responsible for the 

performance" of certain duties, including "[t]he maintenance, repair, 

replacement, cleaning and sanitation of the common elements." N.J.S.A. 46:8B14(a) (emphasis added). "Whether or not incorporated, the association shall be 

an entity which shall act through its officers and may enter into contracts, bring 

suit and be sued." N.J.S.A. 46:8B-15(a) (emphasis added). 

Regarding maintenance and repair, the Association acts through its Board 

of Trustees. N.J.S.A. 46:8B-14. Our courts have "uniformly invoked the 

business judgment rule in cases involving homeowners' associations." Twin 

Rivers, 192 N.J. at 369. This is because "a homeowners' association 'has a 

fiduciary relationship to the unit owners, comparable to the obligation that a 

board of directors of a corporation owes to its stockholders.'" Ibid. (quoting 

Siller, 93 N.J. at 382). "Similarly, 'decisions made by a condominium 

association board should be reviewed by a court using the same business 

judgment rule which governs the decisions made by other types of corporate 

directors.'" Alloco, 456 N.J. Super. at 134-35 (quoting Walker v. Briarwood 

Condo. Ass'n, 274 N.J. Super. 422, 426 (App. Div. 1994)). 
20 A-4039-19

Defendants Aragona, Bowman, Campbell, Levin, and Martin were sued 

in their official capacity as trustees of the Association. Noticeably absent from 

the complaint is any allegation that the named trustees are liable to plaintiff in 

for actions or omissions in their individual capacity. Therefore, for the same 

reasons that the trustees are not liable under the business judgment rule, the 

Association is likewise not liable. Id. at 134-41 (affirming the grant of summary 

judgment to a common interest community, which was a not-for-profit 

corporation, because the decision-making of the members of its Board of 

Directors was protected under the business judgment rule). 

For these reasons, summary judgment was properly granted to the

Association and its trustees. 

We next address the principles governing liability of the managing 

member of a limited liability company (LLC). Yaknow is an LLC registered to 

do business in New Jersey. Beginning in June 2012, the Association retained 

Yaknow to serve as the building manager for The Hague Building. Yaknow 

oversaw the day-to-day operation of the Association and the building complex. 

Williams is the managing member of Yaknow. Although Williams signed 

the agreement for management services on behalf of Yaknow, Williams had no 

independent contractual relationship with the Association. Absent personally 
21 A-4039-19

engaging in fraudulent conduct, a member of an LLC is not personally liable for 

the debts, obligations, or liabilities of an LLC. N.J.S.A. 42:2C-30(a)(2). There 

is no evidence in the record that Williams engaged in such conduct. Plaintiff 

bore the burden of proving that the corporate form should be disregarded by 

piercing the corporate veil. Richard A. Pulaski Constr. Co. v. Air Frame 

Hangers, Inc., 195 N.J. 457, 472 (2008). She did not satisfy that burden. 

Accordingly, summary judgment was properly granted to Williams. 

The trial court barred the damages estimate section of plaintiff's expert 

report and testimony as a net opinion. We review evidentiary decisions "under 

the abuse of discretion standard because . . . the decision to admit or exclude 

evidence is one firmly entrusted to the trial court's discretion." Rodriguez v. 

Wal-Mart Stores, 237 N.J. 36, 57 (2019) (quoting Est. of Hanges v. Metro. Prop. 

& Cas. Ins. Co., 202 N.J. 369, 383-84 (2010)). "Thus, we will reverse an 

evidentiary ruling only if it 'was so wide off the mark that a manifest denial of 

justice resulted.'" Griffin v. City of E. Orange, 225 N.J. 400, 413 (2016) 

(quoting Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)). 

The admissibility of expert opinion is guided by N.J.R.E. 702 and 703 and 

the net opinion rule. N.J.R.E. 702 provides: "If scientific, technical, or other 

specialized knowledge will assist the trier of fact to understand the evidence or 
22 A-4039-19

to determine a fact in issue, a witness qualified as an expert by knowledge, skill, 

experience, training, or education may testify thereto in the form of an opinion 

or otherwise." In turn, N.J.R.E. 703 contemplates that an expert's opinion must 

be founded on "facts or data." Hisenaj v. Kuehner, 194 N.J. 6, 24 (2008); accord

Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, cmt. 3 on N.J.R.E. 

703 (2021-22). 

In Davis v. Brickman Landscaping, Ltd., 219 N.J. 395 (2014), the Court 

recently elaborated on the parameters of the net opinion rule and the factors to 

be employed when applying it. 

An expert may not provide an opinion at trial that 

constitutes "mere net opinion." Pomerantz Paper Corp. 

v. New Cmty. Corp., 207 N.J. 344, 372 (2011). The 

rule prohibiting net opinions is a corollary of New 

Jersey Rule of Evidence 703, State v. Townsend, 186 

N.J. 473, 494 (2006), which provides that an expert’s 

testimony "may be based on facts or data derived from 

(1) the expert’s personal observations, or (2) evidence 

admitted at the trial, or (3) data relied upon by the 

expert which is not necessarily admissible in evidence 

but which is the type of data normally relied upon by 

experts in forming opinions on the same subject," 

Weisbsbard & Zegas, Current N.J. Rules of Evidence, 

cmt. 1 on N.J.R.E. 703 (2014). Thus, the net opinion 

rule can be considered a "restatement of the established 

rule that an expert's bare conclusions, unsupported by 

factual evidence, [are] inadmissible." Buckelew [v. 

Grossbard, 87 N.J. 512, 524 (1981)]. 
23 A-4039-19

The net opinion rule "requires that the expert 

'give the why and wherefore' that supports the opinion, 

'rather than a mere conclusion.'" Pomerantz Paper 

Corp., 207 N.J. at 372 (quoting Polzo v. Cnty. of Essex, 

196 N.J. 569, 583 (2008)). For example, "a trial court 

may not rely on expert testimony that lacks an 

appropriate factual foundation and fails to establish the 

existence of any standard about which the expert 

testified." Id. at 373. Therefore, an expert offers an 

inadmissible net opinion if he or she "cannot offer 

objective support for his or her opinions, but testifies 

only to a view about a standard that is 'personal.'" Ibid. 

[Id. at 410.]

"Expert testimony should not be received if it appears the witness is not 

in possession of such facts as will enable him to express a reasonably accurate 

conclusion as distinguished from a mere guess or conjecture." Vuocolo v. 

Diamond Shamrock Chems. Co., 240 N.J. Super. 289, 299 (App. Div. 1990). 

An expert opinion on the quantum of estimated damages that is not based on 

"supporting data or facts" is an inadmissible net opinion. Brach, Eichler, 

Rosenberg & Gladstone, P.C. v. Ezekwo, 345 N.J. Super. 1, 11 (App. Div. 2001). 

Here, the trial court found that damage estimates contained in the Morse 

Associates report were an unsubstantiated net opinion. The court observed: 

Morse Associates provided each contractor with a 

scope of work and notes in its report that it intended to 

amend the report once it received documents related to 

roofing bids, which it apparently never received. It is 

unclear whether the other estimates are based on photos 
24 A-4039-19

or verbal or written representations of the unit's 

condition provided by Morse Associates. It is also 

unclear if these numbers represent an average cost or 

are industry outliers, and no unit or labor costs were 

included.

We agree. The damage estimates were not supported by adequate facts or other 

data and were thereby inadmissible net opinions. We discern no abuse of 

discretion in barring the damage estimates. 

The trial court dismissed all of plaintiff's claims with prejudice, finding 

she failed to substantiate the damages she allegedly incurred and projected. We 

agree. "It is fundamental that a plaintiff must 'prove damages with such certainty 

as the nature of the case may permit, laying a foundation which will enable the 

trier of the facts to make a fair and reasonable estimate.'" Kelly v. Berlin, 300 

N.J. Super. 256, 268 (App. Div. 1997) (quoting Lane v. Oil Delivery, Inc., 216 

N.J. Super. 423, 420 (App. Div. 1987)). "Conjecture and speculation cannot be 

used as a basis for damages." Brach, Eichler, 345 N.J. Super. at 11 (citing 

Lesniak v. Cnty. of Bergen, 117 N.J. 12, 21 (1989)). "Thus, in general, '[a] jury

should not be allowed to speculate without the aid of expert testimony in an area 

where laypersons could not be expected to have sufficient knowledge or 

experience.'" Kelly, 300 N.J. Super. at 268 (quoting Biunno, Current N.J. Rules 

of Evidence, cmt. 2 on N.J.R.E. 702 (1996-97)). 
25 A-4039-19

Here, the cost of remedying the damages caused by the water infiltration 

is beyond the knowledge and experience of the average juror. Without expert 

testimony, the jury would be left to speculate as to the costs of repair. Expert 

testimony was necessary to determine the quantum of damages incurred by 

plaintiff as a result of the water infiltration. Absent admissible expert testimony, 

plaintiff cannot adequately prove the damages she suffered. 

Notably, the damage claims included attorney's fees, the cost of 

conducting or attending depositions, fact witness research, international travel, 

expert fees, unpaid rent which she would have received, childcare expenses, and 

credit card interest charges. Plaintiff projected the expense of hiring an 

electrician to investigate and repair any corroded circuitry. She also listed 

mediation and international tax planning fees as prospective, presently 

uncalculated costs and sought pre-and-post judgment interest, treble damages, 

and punitive damages. 

Plaintiff did not substantiate those expenses. As noted by the trial court, 

"[p]laintiff did not attach invoices from her attorney prior to becoming selfrepresented; nor did she include receipts for her other itemized expenses." 

Instead, her opposing papers stated that documentation substantiating her 

damages would be provided when discovery was concluded. However, as 
26 A-4039-19

further noted by the trial court, "discovery ha[d] been extended five times in this 

case, the discovery end date ha[d] passed," and the Presiding Judge denied 

plaintiff's motion to reopen and extend discovery. Plaintiff did not appeal that 

order. 

Now, on appeal, plaintiff has submitted voluminous additional documents 

that are not part of the motion record. "[A]ppellate courts will not ordinarily 

consider evidentiary material which is not in the record below by way of 

adduced proof, judicially noticeable facts, stipulation, admission or a recorded 

proffer of excluded evidence." Pressler & Verniero, Current N.J. Court Rules, 

cmt. 1 on R. 2:5-4(a) (2022); see also Townsend v. Pierre, 221 N.J. 36, 45 n.2 

(2015) ("We do not consider other deposition testimony that was not presented 

to the trial court and that was submitted by the parties for the first time on 

appeal."); Tremonte v. Jersey Plastic Molders, Inc., 190 N.J. Super. 597, 601 n.1 

(App. Div. 1983) (noting that in the absence of a motion to supplement the 

record, submission of a document that was not part of the record below "was a 

gross violation of appellate practices and rules"). Plaintiff was not granted leave 

to expand the record. We decline to consider these documents that were not 

presented to the trial court. 
27 A-4039-19

More fundamentally, several aspects of the damages sought by plaintiff 

are not recoverable. "New Jersey courts historically follow the 'American Rule,'

which provides that litigants must bear the cost of their own attorneys' fees . . . 

except[] in eight enumerated circumstances." Innes v. Marzano-Lesnevich, 224 

N.J. 584, 592 (2016) (citations omitted). Attorney's fees are not recoverable 

except when authorized by statute, court rule, or contract. Id. at 593 (citing In 

re Est. of Vayda, 184 N.J. 115, 121 (2005)); R. 4:42-9(a). No such basis is 

present in this case. Similarly, deposition costs are not ordinarily recoverable 

as part of the taxed costs. Smith v. Jersey Cent. Power & Light Co., 421 N.J. 

Super. 374, 388 (App. Div. 2011). Likewise, expert fees are not ordinarily 

recoverable as part of the taxed costs. Buccinna v. Micheletti, 311 N.J. Super. 

557, 565-66 (App. Div. 1998). Expenses incurred for international travel and 

fact witness research are also not recoverable as part of the taxed costs. 

Finally, we address plaintiff's challenge of the denial of her motion for 

reconsideration. For the reasons we have already expressed, defendant's 

argument lacks sufficient merit to warrant extended discussion. R. 2:11-

3(e)(1)(E). 

Reconsideration is appropriate when the movant demonstrates that the 

court overlooked material facts in the record or erred by ignoring or misapplying 
28 A-4039-19

to controlling decisions. R. 4:49-2. "The rule applies when the court's decision 

represents a clear abuse of discretion based on plainly incorrect reasoning or 

failure to consider evidence or a good reason for the court to consider new 

information." Pressler & Verniero, cmt. 2 on R. 4:49-2 (citing Kornbleuth v. 

Westover, 241 N.J. 289, 301-02 (2020)). Motions for reconsideration are 

addressed to the motion judge's sound discretion. Hinton v. Meyers, 416 N.J.

Super. 141, 148 (App. Div. 2010). We review the denial of a motion for 

reconsideration for clear abuse of discretion. Pitney Bowes Bank v. ABC 

Caging Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 2015). We discern no 

such abuse of discretion. Plaintiff has not demonstrated that the grant of 

summary judgment to defendants, barring of plaintiff's expert, and dismissal of 

the complaint was based on plainly incorrect reasoning or that the court 

overlooked relevant evidence or controlling decisions that compel a different 

outcome. See Cummings v. Bahr, 295 N.J. Super. 374, 384-85 (App. Div. 1986). 

Any issues raised but not otherwise addressed were found to lack 

sufficient merit to warrant discussion in our opinion. R. 2:11-3(e)(1)(E). 

Affirmed.