SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-2226- 21 SIMON COULL, Plaintiff-Appellant,

v. EISNER AMPER and HUBERT KLEIN, Defendants-Respondents.

__________________________ _

Argued November 6, 2023

– Decided December 4, 2023 Before Judges Marczyk and Chase. On appeal from the Superior Court, Law Division, Hudson County, Docket No. L- 3671

- 21. Simon Coull , appellant, argued the cause pro se. Charles William Mondora argued the cause for respondents (Landman Corsi Ballaine & Ford PC , attorneys; Charles William Mondora, on the brief).
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 2226

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Plaintiff Simon Coull appeals pro se from the tria l court's December 17,
2021 order gran ting defendants EisnerAmper LLP ("EisnerAmper"), Hubert Klein ("Klein"), and Charles Weinstein 's ("Weinstein") motion to dismiss. Plaintiff further appeals the court's February 18, 2022 order denying his motion for reconsideration. Based on our review of the record and the controlling legal principles, we affirm.
I. Plaintiff and his ex-wife entered into a marital settlement agreement ("MSA") in October 2011, requiring plaintiff to pay child and spousal support, and the court entered a judgment of divorce in Janu ary 2012. In 2014, plaintiff moved to reduce his child and spousal support oblig ations. Plaintiff's ex-wife retained defendants' accounting firm to serve as ex perts and to perform an income and cash-flow analysis in relation to plaintiff's motion. Klein generated reports addressing these issues

. Plaintiff retained his own accounting expert who pr epared reports on his behalf. On December 22, 2015, plaintiff and his ex -wife entered into a consent order resolving plaintiff's 2014 motion. 1 The December 22, 2015 order was

1 Plaintiff alleges in his statement of facts that "t he day before the tr[ ia ]l [he] found out a senior partner for[] the defendant[s] h ad contacted [his] then[-]3 A- 2226

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drafted by plaintiff's then-attorney, Jamie K. Von Ellen, 2 and executed by both parties and their attorneys. The December 22, 2015 order specifically recognized that the parties were "unable to agree t o [p]laintiff's income but were willing to agree to the support amounts" set forth in the order. In April 2021, plaintiff filed a complaint against defen dants EisnerAmper and Klein. 3 Plaintiff alleged accountant malpractice, fraud, br each of fiduciary duty, gross negligence, and other claims. Defendan ts moved to dismiss the complaint in July 2021 for improper service and fai lure to state a claim. The court heard oral argument and dismissed plaintiff's claims without prejudice for improper service and failure to state a claim. In September 2021, plaintiff attempted to amend his complaint to cure the defects leading to the dismissal of his first compl aint but instead filed a new

attorney asking her to settle the case before tr[ ia ]l and to get [him] to accept the offer . . . ." He further states he "refused and realized that something was going on behind the scenes he had not been [privy] to." He then alleges that when he refused to settle, his then-attorney threatened him by stating "listen I can do all sorts of bad things to you" and claims he recorded this conversation.

2 Plaintiff 's claims against his former attorney are the subject of a separate appeal. Coull v. Von Ell en , No. A- 3858 -21.

3 Prior to filing the civil claim, plaintiff moved in October 2020, for "declaratory relief," seeking to join Klein and Von Ellen as def endants in the family matter. The family judge denied plaintiff's application.4 A- 2226

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complaint under a different docket number. This time, in addition to defendants Klein and EisnerAmper, he sued Weinstein. The new complaint alleged many of the same claims, including accountant "malpracti ce," the "New Jersey 2A:53A -25 accountant liability act," "privity," "fraud," "Restatement of [T]ort[s] 552," and "Fiduciary duty." Defendants moved to dismiss plaintiff's second com plaint in October 2021 based on the statute of limitations, improper servi ce, and failure to state a claim. Defendants argued the statute of limitations for ma lpractice claims is six years. However, the claim was time-barr ed because plaintiff filed this new complaint under a new docket number on September 15, 2021, wh ich was more than six years after Klein generated his last report on July 16, 2015. Plaintiff opposed defendant's motion, arguing, with respect to the statute of limitations , that "[t]he date of accrual of loss is when the los s occurred which would be when the contract [4] came into effect which . . . is December 22[,] 2015." Following oral argument, the court dismissed plaint iff's complaint with prejudice on December 17, 2021. Regard ing plaintiff's claim that there was

4 When plaintiff says "contract" he is referring to t he December 22 , 2015 consent order arising out of the family matter.5 A- 2226

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malpractice, the court stated, "[t]his is the same argument that this court has reviewed in the past motion and decided . . . it wa s the ex-wife . . . who sought the services and therefore the duty was owed to the ex-wife as opposed to the plaintiff here." As to the statute of limitations, the court found plaint iff's claim time-barred because the clock starts "when the repo rts were generated . . . not when [plaintiff] entered into . . . the [consent] [ a]greement with the ex-wife." Additionally, the court addressed the question of whether defenda nts had litigation immunity. The judge found there was immunity for defendants because "they made their reports in the course of l itigation as part of the judicial proceedings. . . . And that's because . . . this i mmunity privilege [has] a strong public policy to [all ow ] experts [to] speak freely and rightfully without fear of litigation." In January 2022, plaintiff then moved for reconsideration and for leave to amend his complaint. The court denied both motions on February 18, 2022. The court concluded plaintiff:

did not provide any new arguments nor has he provid ed any information that shows that this [c] ourt has erred in dismissing the complaint. Rather, movant merely reemphasizes the arguments that he previously made. . . . Further, the request to amend is denie d on procedural as well as substantive reasons. Procedurally, [plaintiff] failed to prov id e the [c]ourt with a proposed amended complaint, which is in6 A- 2226

- 21 violation of [Rule] 4:9-1. Substantively, [plainti ff] does not demonstrate why the amendment should be granted given that this [c] ourt has determined . . . defendants did not owe a duty to plaintiff Coull. This appeal followed.
II. We use a de novo standard to review the dismissal o f a complaint for failure to state a claim. Dimitrakopoulos v. Borru s, Goldin, Foley, Vignuolo, Hyman and Stahl, P.C., 237 N.J. 91, 108 (2019). We apply the same standard under Rule 4:6 -2(e) that governed the motion judge and look to "t he legal sufficiency of the facts alleged on the face of the complaint." Printing MartMorristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989). We are limited to reviewing "the plead ing s themselves." Roa v. Roa, 200 N.J. 555, 562 (2010 ). "'At this preliminary stage of the litigation the [judge] i s not concerned with the ability of plaintiffs to prove the allegation conta ined in the complaint,' and the plaintiff is 'entitled to every reasonable inferenc e of fact.'" Dimitrakopoulos , 237 N.J. at 107 (quoting Printing Mart, 116 N.J. at 746). However, "if the complaint states no claim that supports relief, and discovery will not give rise to such a claim, the action should be dismissed." Ibid. "Motions for reconsideration are governed by Rule 4:49 -2, which provides . . . the decision to grant or deny a motion for re consideration rests within the7 A- 2226

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sound discretion of the trial court." Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 20 15). "Reconsideration should be used only where '1) the [c]ourt has expre ssed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious . . . the [c]ourt either did not consider, or failed to appreciate the signi ficance of probative, competent evidence. '" Ibid. (quoting D'Atria v. D'Atria , 242 N.J. Super. 392 , 401 (Ch. Div. 1990 )). Therefore, we will not disturb a trial court's deci sion on a motion for reconsideration unless there is a clear abuse of di scretion. Ibid. Plaintiff advances several arguments in support of his appeal: the statute of limitations is tolled under the extraordinary ci rcumstance doctrine ; defendants owed plaintiff a duty under the Accounta nts Liabilit y A ct , N.J.S.A. 2A:53A

- 25 ; defendants supplied reports with the knowledge that they were inaccurate contrary to Restatement of Torts § 552 ; fraud was pled with sufficient specificity in plaintiff's complaint under New Jers ey's liberal pleading standards; and the trial court erred in dismissing the complaint based on litigation immunity. We confine our discussion to the issue of litigati on immunity as the court properly dismissed plaintiff's complaint pursuant t o that doctrine. The thrust of plaintiff's argument regarding the litigation immun ity issue is that his complaint8 A- 2226

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is based on Klein's preparation of a report "and no t any testimony presented in court," and, therefore, the privilege is not applic able. We are unpersuaded by plaintiff's arguments. "It is well-settled that a witness in a judicial or quasi-judicial proceeding enjoys an absolute immunity from civil suit for his words and actions relevant to the judicial proceedings." Durand Equip. Co., I nc. v. Superior Carbon Prods. , Inc. , 248 N.J. Super. 581, 583 (App. Div. 1991). "This a bsolute immunity is afforded even if 'the words are written or spoken m aliciously, without any justification or excuse, and from personal ill will or anger against the party
. . . .' " Id. at 583-84 (quoting DeVivo v. Ascher, 228 N.J. Super. 453, 457 (App. Div. 1988)). Furthermore, the immunity "is not limited to what a person may say under oath while on the witness stand. It extends to sta tements or communications in connection with a judicial proceeding." Id. at 584 (quoting DeVivo, 228 N.J. Super. at 457). "The absolute immunity granted to witnesses is not designed to benefit the dishonest witness but to further the br oad public interest in having witnesses who are unafraid to testify fully and ope nly." Id. at 585. In Commercial Insurance Co. of Newark v. Steiger, 3 95 N.J. Super. 109 (App. Div. 2007), we concluded that an expert

— who provided a report in9 A- 2226

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support of a claim for uninsured motorist (UM) bene fits

— was immune from liability pursuant to the absolute litigation privi lege. The UM insurance company sued the expert for material misrepresentat ion regarding his report. Id. at 113-14. The expert opined a phantom vehicle was a contributing cause of the accident, and we determined th at the report was "clearly pertinent and relevant to the litigation" and therefore was "immune from l iability pursuant to the litigation privilege." Id. at 119. The litigation privilege is implicated in this mat ter. Klein's report was clearly prepared for the purposes of the underlying litigation. The privilege "extends to statements or communications in connect ion with a judicial proceeding." Durand, 248 N.J. Super. at 58 4 (quoting DeVivo, 228 N.J. Super. at 457). Klein's report falls squarely within the privilege. Accordingly, the trial court properly dismissed plaintiff's complaint with prejudice. To the extent we have not specifically addressed any of plaintiff' s remaining arguments, we conclude they lack sufficie nt merit to warrant discussion in a written opinion. R. 2:11 -3(e)(1)(E). Affirmed.