SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A- 2220-17T4

MARUKA USA, INC.,

Plaintiff-Respondent,

v.

SPECIALTY LIGHTING

INDUSTRIES, INC.,

Defendant/Third-Party

Plaintiff-Appellant/

Cross-Respondent,

v.

MORI SEIKI USA, INC. d/b/a

DMG/MORI SEIKI USA,

and DMG MORI SEIKI 

COMPANY, LTD.,

Third-Party DefendantRespondent/Cross-Appellant.

______________________________

Argued September 25, 2019 – Decided 

Before Judges Koblitz, Gooden Brown and Mawla.

NOT FOR PUBLICATION WITHOUT THE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.

November 4, 2019
2

A-2220-17T4

On appeal from an interlocutory order of the Superior 

Court of New Jersey, Law Division, Morris County, 

Docket No. L-2920-13.

Donald E. Taylor argued the cause for appellant/crossrespondent (Wilentz, Goldman & Spitzer PA, 

attorneys; Donald E. Taylor, of counsel and on the 

brief; Robert Selvers and Risa M. Chalfin, on the brief).

Denis F. Driscoll argued the cause for respondent 

Maruka USA Inc. (Inglesino Webster Wyciskala 

Taylor, LLC, and Pezold Smith Hirschmann & 

Selvaggio, LLC, attorneys; Raymond A. Selvaggio

(Pezold Smith Hirschmann & Selvaggio, LLC) of the 

New York bar, admitted pro hac vice, Gerard F. Smith, 

Denis F. Driscoll, and Owen T. Weaver, on the brief).

William K. Pelosi argued the cause for respondent/

cross-appellant Mori Seiki USA Inc. d/b/a DMG/Mori 

Seiki USA and DMG Mori Seki Company, Ltd. 

(Litchfield Cavo, LLP, attorneys; William K. Pelosi 

and Zachary E. Danner, on the brief).

PER CURIAM

This is an interlocutory appeal on leave granted arising from a dispute 

involving the sale of a lathe.

1 We now affirm the December 19, 2017 grant of 

summary judgment in favor of plaintiff Maruka USA, Inc. (Maruka) and partial 

summary judgment in favor of third-party defendant Mori Seiki USA, Inc. d/b/a 

 

1 A lathe is "[a] machine on which a piece of wood, metal, or other material is 

spun and shaped by a fixed cutting or abrading tool." Webster's II New College 

Dictionary 621 (1995).
3

A-2220-17T4

DMG/Mori Seiki USA, and DMG Mori Seiki Company, Ltd. (collectively Mori 

Seiki).

Mori Seiki manufactures machine tools, turning centers, and lathes. 

Maruka distributes machinery and equipment on behalf of Mori Seiki. Specialty 

Lighting manufactures and sells custom lighting systems to commercial and 

residential customers. In November 2013, Maruka filed a complaint against 

defendant Specialty Lighting Industries, Inc., alleging breach of contract and 

conversion and requesting an order directing Specialty Lighting to immediately 

return its lathe or pay the full purchase price. 

Specialty Lighting filed its answer, a twelve-count counterclaim, and a 

third-party complaint against Mori Seiki. Specialty Lighting's counterclaims

alleged the following counts against Maruka: breach of contract; breach of the 

implied covenant of good faith and fair dealing; violations regarding remedies 

and warranties under the Uniform Commercial Code (UCC), N.J.S.A. 12A:1-

101 to 12-26; common law fraud; and negligent misrepresentation. It pleaded 

the following counts against third-party defendant Mori Seiki: breach of 

warranty; negligent design and construction; and conspiracy. Specialty Lighting 

also alleged a violation of the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -

198, against both Maruka and Mori Seiki.
4

A-2220-17T4

The motion court granted summary judgment, dismissing Specialty 

Lighting's counterclaims against Maruka. The court also denied, in part, Mori 

Seiki's motion for summary judgment, leaving intact Specialty Lighting's breach 

of warranty claim against Mori Seiki.

 Specialty Lighting appeals, arguing the motion court erred both when

finding the transaction did not involve "merchandise" as defined by the CFA,

and when finding the agreement's statute of limitations barred Specialty 

Lighting's breach of warranty claim against Maruka. Mori Seiki cross-appeals, 

claiming the court erred in denying summary judgment as to Specialty Lighting's 

breach of warranty claim, because Specialty Lighting refused to accept the 

replacement lathe, and also erred when finding no warranty existed because the 

sales agreement did not apply to Mori Seiki.

The record reveals the following facts. In late 2009 and 2010, Specialty 

Lighting explored doing lathe work in-house, to reduce costs and complete the 

work on its own schedule. James McMillan, the production manager at 

Specialty Lighting, considered three different machines before he ultimately 

chose one manufactured by Mori Seiki.2 McMillan communicated with a 

 

2

 The machines at issue here are the NL2500SY/700 (NL) and the 

NLX2500SY/700 (NLX), computerized lathes that performed milling and 

drilling functions. 
5

A-2220-17T4

Maruka sales engineer and an application engineer to discuss Specialty 

Lighting's needs. They suggested that Mori Seiki's NL would fit Specialty

Lighting's requirements. In March 2011, Specialty Lighting accepted Maruka's 

proposal for the NL, executed a purchase order for $264,990, and tendered a 

deposit in the amount of $52,990.

One or two days later, McMillan was informed that the NL was 

unavailable because Mori Seiki had stopped making the NL series and had 

transitioned to the NLX series of machines. The NLX lathes incorporated 

changes that NL lathe customers had requested, consumed less power, occupied 

less space, and circulated cooling fluid through its casting to promote thermal 

stability. 

Maruka issued a proposal to Specialty Lighting to buy the NLX for the 

same price as the NL. The sales engineer told McMillan the NLX was an 

upgrade over the NL and that features that were optional add-ons for the NL 

were standard in the NLX. The sales engineer gave McMillan a brochure that 

included information about the NLX. In March 2011, Specialty Lighting signed 

a sales agreement for the NLX. 

Maruka invited McMillan to attend "Innovation Days," a three-day event 

in Chicago where visitors could observe Mori Seiki products in operation. 
6

A-2220-17T4

McMillan testified that at the event, Mori Seiki representatives reassured him 

the NLX was everything the NL was and more, with improved processing times, 

and "[e]verything that was familiar to an NL was going to be the same" on the 

NLX.

McMillan observed the NLX with a gantry loader, an optional lathe 

component that helped move parts to and from the cutting chamber of the 

machine, allowing for unattended operation. Specialty Lighting cancelled its 

order and on June 1, 2011, Maruka submitted a new proposal for a NLX 

containing the gantry loader.

Maruka's proposal contained a section titled "Mori Seiki Machine 

Warranty," that provided that "for a period of twenty-four (24) months, from the 

date of installation, any new machine tool purchased from Mori Seiki, . . . and 

all its parts shall be free from defects in workmanship and materials" when 

"under normal use and maintenance." Under the heading "Liability," the

warranty stated:

Mori Seiki's and Maruka U.S.A.['s] liability under this 

warranty is limited solely to the replacement or repair, 

at Mori Seiki's sole election, of defective workmanship 

or materials by Mori Seiki or an authorized distributor. 

Mori Seiki will not be liable for any expenses, loss or 

damage whether incidental, consequential or direct in 

connection with the sale or use of or inability to the use 

of the machinery for any purpose. All other warranties, 
7

A-2220-17T4

whether expressed or implied, including without 

limitation any implied warrant of merchantability or 

fitness for a particular purpose are hereby disclaim[ed].

The warranty also established a one-year limitation for bringing an action 

regarding the warranty and the machine, stating: 

Any legal action to enforce this warranty must be 

commenced no later than one year after the expiration 

of the warranty period set forth in this warranty or one 

year after Mori Seiki Co., Ltd. or its affiliates cease 

efforts to repair the Equipment or replacement part, 

whichever comes later.

Section five of the terms of the warranty, titled "Limited Warranty; 

Disclaimer of Warranties; Limitation of Liability; Pass-Through of

Manufacturer's Warranties," identified additional limitations on the warranty, 

stating:

This limited warranty is exclusive and in lieu of all 

other warranties, whether express, implied written or 

oral including, but not limited to, any implied

warranties of merchantability or fitness . . . . No 

representative of seller may alter or amend this limited 

warranty. Seller shall not be liable for any incidental 

or consequential loss, damage or expense arising 

directly or indirectly from installation or use of the 

product or from any breach of warranty; rather, buyer 

and seller agree that the sole and exclusive remedy for 

breach of any warranty concerning the product shall be 

the repair of replacement of defective parts or, at 

seller's option, refund of the purchase price . . . . Buyer 

hereby waives the benefit of any rule that disclaimer of 

warranty shall be construed against the seller and 
8

A-2220-17T4

agrees that the foregoing disclaimer in the agreement 

shall be construed liberally in favor of seller.

Specialty Lighting and Maruka executed a sales agreement dated June 1, 

2011, for the NLX with gantry loader reflecting the new total price of $418,950. 

Specialty Lighting signed the agreement and paid an additional $30,800 deposit, 

leaving a new balance of $335,160. 

The agreement included the terms and conditions detailed on the back of 

the sales agreement. Those terms included waivers of other warranties. It

included the language that the machine would be free of defects for one year:

4. Limited One Year Parts and Service Warranty. 

Provided that the Customer complies with its 

obligations under this Agreement, Seller warrants that 

the Equipment (capital goods excluding tooling and 

parts not manufactured by the manufacturer of the basic 

machine) shall be free of defects in material and 

workmanship at the time of delivery for a period of one 

(1) year from the date the Equipment is installed at the 

Customer's facility . . . . Seller's sole responsibility shall 

be to repair or replace the part found to be defective or, 

at Seller's option, Seller may rescind this Agreement

and, in such event, Seller's only obligation shall be to 

refund amounts previously paid by Customer pursuant 

to this Agreement . . . .

It further included language, in capital letters, disclaiming warranties:

5. Disclaimer of Warranties. THE ONE YEAR PARTS 

AND SERVICE WARRANTY PROVIDED FOR IN 

PARAGRAPH 4 IS THE EXCLUSIVE WARRANT 

MADE BY THE SELLER AND THE CUSTOMER 
9

A-2220-17T4

HEREBY WAIVES ANY AND ALL OTHER 

WARRANTIES, EXPRESS, IMPLIED OR 

STATUTORY, INCLUDING THE WARRANTIES OF 

MERCHANTABILITY AND FITNESS FOR A 

PARTICULAR PURPOSE AND ALL OTHER 

REMEDIES AND LIABILITIES. THE CUSTOMER 

ACKNOWLEDGES AND AGREES THAT NO 

OTHER REPRESENTATIONS OR WARRANTIES 

WERE MADE OR RELIED UPON BY CUSTOMER 

WITH RESPECT TO THE QUALITY AND 

FUNCTION OF THE GOODS SOLD HEREIN . . . .

The sales agreement additionally included a provision limiting remedies:

6. Exclusive Remedies and Limitation of Liability. 

Customer expressly agrees that the remedies granted to 

it in Paragraph 4 are Customer's sole and exclusive 

remedies and the total liability of the Seller with respect 

to this Agreement or the Equipment and service 

furnished hereunder, in connection with the 

performance of breach thereof, or from the 

manufacture, sale, delivery, installation, repair or 

technical direction covered by or furnished under this 

Agreement, whether based on agreement, warranty, 

negligence, indemnity, strict liability or otherwise, 

shall not exceed the one year parts and service 

warranty. Seller shall in no event be liable to the 

Customer, any successors in interest, third-parties, or 

any beneficiary or assignee of this Agreement for any

direct, indirect, special, consequential, incidental or 

indirect damages whether arising out of breach of this 

Agreement, warranty or tort (including negligence, 

failure to warn, or strict liability) or otherwise, or any 

defect in or failure of, or malfunction of the Equipment, 

including but not limited to lost profits or revenues, loss 

of use of Equipment, damage to associated equipment, 

cost of substitute products, facilities, services, or 

downtime costs, lost goodwill, work stoppage, lost 
10 A-2220-17T4

material, impairment or loss of other goods, loss by 

reason of shutdown, interruption or non-operation, 

increased expenses of operation, or the costs or claims 

of third parties including customer of Customer.

Specialty Lighting acknowledged it had read and agreed to those provisions by 

signing the sales agreement.

As of December 2017, Mori Seiki's website stated: "With DMG MORI, 

you've got the most complete, high-quality line of machine tools on the market. 

You also have peace of mind – thanks to our extensive two-year warranty on 

non-wear machine components." This two-year warranty was also included in 

Mori Seiki's brochure for the NLX.

In December 2011, the NLX with gantry loader was delivered to Specialty 

Lighting. The Maruka application engineer was training a Specialty Lighting 

employee on how to use the machine when he discovered an issue with it.

Maruka's service job summary form regarding the training indicated that 

"[i]nterference with sub-spindle occurs when standard Mori ID holders are used 

for drilling in sub-spindle."

In its counterstatement of undisputed material facts, Mori Seiki 

acknowledged that an interference point in the NL was "slightly more 

pronounced on the NLX." Mori Seiki stated the effect of that difference was 

that Specialty Lighting "might have [had] to use a slightly longer tool holder" 
11 A-2220-17T4

for boring bar operations. The application engineer informed Specialty Lighting 

of this and "also instructed them as to how the interference could be eliminated 

in other operations by rotating the parts so that the area being cut was on the 

turret side of the spindle center line."

In March 2012, Specialty Lighting sent a letter to Maruka and Mori Seiki, 

requesting a new machine. Mori Seiki offered to remove, redesign, and 

reengineer the machine Specialty Lighting had. In April 2012, Specialty 

Lighting sent a letter to Mori Seiki rejecting its offer, stating that the NLX it 

received had "fatally flawed design problems and [could not] be repaired to 

produce the products according to the original design specifications."

Mori Seiki disagreed that the original machine was defective but, in July 

2012, agreed to replace Specialty Lighting's NLX with another NLX using a 

turret with a smaller profile that resulted in less interference (the replacement 

NLX). Because the replacement NLX would require some time to design, 

produce, and deliver, Mori Seiki gave Specialty Lighting a loaner machine. The 

parties executed an agreement to loan a DuraTurn2050MC lathe from August 1, 

2012, through December 1, 2012.

Maruka informed Specialty Lighting that it wanted to install the 

replacement NLX at the end of May. However, on May 24, 2013, Specialty 
12 A-2220-17T4

Lighting informed Maruka it would not allow Maruka to deliver and install the 

replacement NLX without confirming that the defects in the replacement NLX 

had been properly corrected. Specialty Lighting visited Maruka's facility to 

inspect the machine and discovered that the original issue still existed. Specialty 

Lighting provided a list of the replacement NLX 's defects to Maruka in July 

2013. Specialty Lighting represented that over the next six weeks, Maruka 

"continually advised" that it was addressing the list of defective items with Mori 

Seiki. When Specialty Lighting inspected the replacement NLX again at 

Maruka's facility in August 2013, however, certain requested design 

modifications had still not been made.

Specialty Lighting asked whether, if it accepted the replacement NLX, it 

could also be permitted to keep the loaner machine and the original NLX for the 

next six months before fully accepting the replacement NLX, to allow it to revert

to another machine if the replacement NLX was unacceptable. Maruka 

responded by commencing this litigation in November 2013.

In April 2014, Mori Seiki offered Specialty Lighting another opportunity 

to accept the replacement NLX and offered to make the machine available for 

inspection and acceptance for a thirty-day period. It advised that if Specialty 

Lighting refused delivery, the replacement NLX would be sold. Specialty 
13 A-2220-17T4

Lighting rejected the offer, but also objected to Mori Seiki selling the 

replacement while litigation was pending.

Mori Seiki filed a motion for leave to sell the replacement NLX. On June 

11, 2014, the motion court ordered that Mori Seiki could sell the replacement 

machine, after making it available for sixty days to allow Specialty Lighting to 

inspect it. A year later, Specialty Lighting's mechanical expert inspected the 

replacement machine and opined that the replacement did not conform to the 

parties' contract and "deviated from the [p]roposals provided to Specialty 

Lighting."

I. CFA claims.

Specialty Lighting argues that the motion court erred in dismissing its 

CFA claim against Mori Seiki and Maruka and in denying its motion for 

reconsideration. When deciding motions for summary judgment, motion courts 

"review the competent evidential materials submitted by the parties to identify 

whether there are genuine issues of material fact and, if not, whether the moving 

party is entitled to summary judgment as a matter of law." Bhagat v. Bhagat, 

217 N.J. 22, 38 (2014); R. 4:46-2(c). "An issue of fact is genuine only if, 

considering the burden of persuasion at trial, the evidence submitted by the 

parties on the motion, together with all legitimate inferences therefrom favoring 
14 A-2220-17T4

the non-moving party, would require submission of the issue to the trier of fact."

R. 4:46–2(c). "An appellate court reviews an order granting summary judgment 

in accordance with the same standard as the motion judge." Bhagat, 217 N.J. at 

38.

The original purpose of the CFA was to "combat 'sharp practices and 

dealings' that victimized consumers by luring them into purchases through 

fraudulent or deceptive means." Cox v. Sears Roebuck & Co., 138 N.J. 2, 16 

(1994) (quoting D'Ercole Sales, Inc. v. Fruehauf Corp., 206 N.J. Super. 11, 23 

(App. Div. 1985)). Now, the CFA "protect[s] the public even when a merchant 

acts in good faith." D'Ercole Sales, Inc., 206 N.J. Super. at 23. 

The CFA defines "unlawful practice" as:

The act, use or employment by any person of any 

unconscionable commercial practice, deception, fraud, 

false pretense, false promise, misrepresentation, or the 

knowing, concealment, suppression, or omission of any 

material fact with intent that others rely upon such 

concealment, suppression or omission, in connection 

with the sale or advertisement of any merchandise or 

real estate, or with the subsequent performance of such 

person as aforesaid, whether or not any person has in 

fact been misled, deceived or damaged thereby is 

declared to be an unlawful practice . . . .

[N.J.S.A. 56:8-2.]
15 A-2220-17T4

N.J.S.A. 56:8-1(c) defines "merchandise" to "include any objects, wares, goods, 

commodities, services or anything offered, directly or indirectly to the public 

for sale."

The CFA further authorizes a remedy for "[a]ny person who suffers any 

ascertainable loss of moneys or property, real or personal, as a result of the use 

or employment by another person of any method, act, or practice declared 

unlawful under this act." N.J.S.A. 56:8-19. An ascertainable loss exists under 

the CFA if it is "'quantifiable or measurable,' not 'hypothetical or illusory.'" 

D'Agostino v. Maldonado, 216 N.J. 168, 185 (2013) (quoting Thiedemann v. 

Mercedes-Benz USA, LLC, 183 N.J. 234, 248 (2005)). The remedy includes 

treble damages and reasonable attorneys' fees. N.J.S.A. 56:8-19. 

"The CFA requires a plaintiff to prove three elements: '1) unlawful 

conduct by defendant; 2) an ascertainable loss by plaintiff; and 3) a causal 

relationship between the unlawful conduct and the ascertainable loss.'" 

D'Agostino, 216 N.J. at 184 (quoting Bosland v. Warnick Dodge, Inc., 197 N.J. 

543, 557 (2009)). 

"[I]t is well-established that the CFA is applicable to commercial 

transactions." All the Way Towing, LLC v. Bucks Cnty. Int'l, Inc., 236 N.J. 

431, 443 (2019). The Supreme Court has clarified, however, that "context is 
16 A-2220-17T4

important" and that not "all business-to-business transactions automatically fit 

the intendment of a sale offered to the public." Ibid. "In business-to-business 

transactions it is the 'nature of the transaction' that will determine whether it can 

fit within the CFA's definition of 'merchandise.'" Id. at 447 (quoting 

D'Agostino, 216 N.J. at 187).

The CFA may apply to custom-made goods. Id. at 443-45. See, e.g., Czar, 

Inc. v. Heath, 198 N.J. 195, 197, 209-10 (2009) (applying the CFA to the 

building and installation of custom kitchen cabinets); Sprenger v. Trout, 375 

N.J. Super. 120, 128, 134 (App. Div. 2005) (holding the CFA applied to the 

"business of customizing and refabricating automobiles"); Perth Amboy Iron 

Works, Inc. v. Am. Home Assurance Co., 226 N.J. Super. 200, 204-05, 211

(App. Div. 1988) (holding the CFA applied to a transaction involving a yacht 

manufactured by defendant with a custom modification to the engine).

The Court recently adopted four considerations "[t]o promote consistency 

in assessing the nature of a transaction in a business-to-business setting for 

purposes of determining whether the CFA will apply to the merchandise." All 

the Way Towing, 236 N.J. at 447. Those four considerations are:

(1) the complexity of the transaction, taking into 

account any negotiation, bidding, or request for 

proposals process; (2) the identity and sophistication of 

the parties, which includes whether the parties received 
17 A-2220-17T4

legal or expert assistance in the development or 

execution of the transaction; (3) the nature of the 

relationship between the parties and whether there was 

any relevant underlying understanding or prior 

transactions between the parties; and . . . (4) the public 

availability of the subject merchandise.

[Id. at 447-48.]

To meet the public availability requirement, a party may show "that any member 

of the public could purchase the product or service, if willing and able, 

regardless of whether such a purchase is popular." Id. at 447. 

Here, the motion court dismissed Specialty Lighting's CFA claim as to 

both Maruka and Mori Seiki. The court found that the CFA did not apply to the 

transaction because it did "not involve merchandise 'offered . . . to the public 

for sale.'" See N.J.S.A. 56:8-1(c). It compared this matter to Princeton 

Healthcare System v. Netsmart New York, Inc., 422 N.J. Super. 467 (App. Div. 

2011), where we held that because the parties were sophisticated corporate 

entities that had entered into a heavily-negotiated contract for the sale of a 

custom-made program that involved the plaintiff's computer consultant and legal 

counsel as active participants, the product was not "merchandise" under the CFA 

and the CFA did not apply. 

The motion court here found that, although the NLX Specialty Lighting 

ordered was sold from a brochure, it was "made to order[,] assembled with 
18 A-2220-17T4

accessories . . . unique to a purchaser's needs and specific functions," and took

a long time to produce. The court also reasoned that "the parties spent many 

months determining and negotiating the particular machine and parts Specialty 

Lighting would purchase," and that the transaction occurred between 

"sophisticated corporate entities." See Princeton Healthcare System, 422 N.J. 

Super. at 474. The court concluded the transaction did "not constitute a 'sale of 

merchandise' within the intent of the CFA" and granted summary judgment.

In its motion for reconsideration, Specialty Lighting argued the motion

court erred because the NLX was not custom-made. The motion court denied 

this motion, clarifying that Specialty Lighting had misconstrued the basis of its 

decision. The motion court clarified that it considered several factors to reach 

its decision, including: "(1) that the parties were sophisticated corporate entities;

(2) that the parties spent many months [discussing] and negotiating the particular 

machine and parts . . . ; and (3) the [m]achine's configuration was based upon 

[Specialty Lighting's] needs and specific requirements." 

In the recent decision of All the Way Towing, the Supreme Court affirmed 

our conclusion that the particular transaction between two commercial entities 

fell within the purview of the CFA. 236 N.J. at 434. The Court distinguished 

All the Way Towing from Princeton Healthcare System, because anyone from 
19 A-2220-17T4

the public could purchase a tow truck with the tow body that the plaintiffs had 

requested and the sale was "a direct consumer purchase transaction" that 

involved no attorneys or other experts. Id. at 446- 48.

The object of the transaction here, the lathe, is more akin to the complex 

computer software in Princeton Healthcare System, than the tow truck in All the 

Way Towing. The affidavits submitted by Mori Seiki demonstrate the 

complexity of the machine. Additionally, Specialty Lighting informed Maruka 

and Mori Seiki what elements of the lathe required design corrections. Specialty 

Lighting further indicated that the specific modifications it had requested had 

not been installed when it inspected the replacement NLX for the second time

in August 2013. These specifications further support that the lathes were 

specialized and complex.

Maruka provided three proposals to Specialty Lighting over the course of 

six months before Specialty Lighting agreed to purchase the NL, and then 

engaged in further discussions with Maruka and Mori Seiki to determine the 

requirements for the NLX. Additionally, McMillan was familiar with its 

functions, and had a more specialized knowledge of lathes than the general 

public. Although the machines are available for purchase to the public, there is 

no evidence that anyone in the public other than the type of sophisticated entity 
20 A-2220-17T4

with the specialized knowledge of Specialty Lighting would seek to enter into 

such a transaction.

Moreover, the record contains evidence that Specialty Lighting 

communicated through counsel, as shown by the May 2013 letter, refusing to 

accept the machine. Those facts support the result here. See All the Way 

Towing, 236 N.J. at 447-48 (considering whether the parties received legal or 

expert assistance in the development or execution of the transaction to determine 

whether the CFA applied).

After a de novo review of the record, we conclude that the transaction 

involved two sophisticated corporate entities that heavily negotiated a contract 

over a significant period of time, which involved the sale of a highly technical 

machine. The motion court properly found the lathe did not qualify as

"merchandise" under the CFA when dismissing Specialty Lighting's CFA

claims.

II. Specialty Lighting's warranty counterclaim against Maruka.

Specialty Lighting additionally asserts that the motion court improperly 

found the sales agreement's statute of limitations provision barred Specialty 

Lighting's breach of warranty claim against Maruka. It argues that its claim is 

not time-barred because Maruka was estopped from enforcing the statute of 
21 A-2220-17T4

limitations, Specialty Lighting did not "accept" the lathe to trigger the 

commencement of the statute of limitations, and Maruka guaranteed future 

performance. 

The motion court held the one-year statute of limitations provision barred 

Specialty Lighting's counterclaims and rejected Specialty Lighting's arguments 

that there were genuine disputes of material facts. Specialty Lighting argued 

that the statute of limitations provision was unenforceable because it was 

illegible, against public policy, and unreasonable. The court found Specialty 

Lighting's president signed the agreement, which "explicitly alerted him to its 

terms and conditions, including the limitations period." The motion court 

concluded the provision was clearly legible, was not unconscionable, and was 

reasonable.

Specialty Lighting's motion for reconsideration of its breach of warranty 

claim against Maruka was denied by the motion court. Because Specialty 

Lighting raised for the first time during this reconsideration motion that N.J.S.A. 

12A:2-725(2) rendered its claim timely, the motion court did not consider the

argument. We "will decline to consider questions or issues not properly 

presented to the [motion] court when an opportunity for such a presentation is 

available unless the questions so raised on appeal go to the jurisdiction of the 
22 A-2220-17T4

[motion] court or concern matters of great public interest." State v. Robinson, 

200 N.J. 1, 20 (2009).

Specialty Lighting does not assert that this argument was not available 

when it first opposed Maruka's motion for summary judgment, and the record 

does not suggest otherwise. See Cummings v. Bahr, 295 N.J. Super. 374, 384-

85 (App. Div. 1996) (affirming a motion court's denial of the plaintiff's second 

motion for reconsideration because it asserted a new theory without identifying 

new facts or overlooked case law); see also ASHI-GTO Assocs. v. Irvington 

Pediatrics, P.A., 414 N.J. Super. 351, 360 (App. Div. 2010) (finding no error in 

denying a motion for reconsideration because the motion did not rely on matters 

the court had overlooked or as to which it had erred). We decline to consider 

arguments against the warranty raised for the first time at the motion for 

reconsideration or on appeal.

III. Denial of Mori Seiki's motion for summary judgment.

A. Express Warranty

When deciding Mori Seiki's motion for summary judgment, the motion

court first addressed whether the contract between Mori Seiki and Specialty 

Lighting contained an express warranty. The court found the terms and 

conditions of the June 1, 2011 proposal were not incorporated into the executed 
23 A-2220-17T4

sales agreement and only governed the relationship between Maruka and 

Specialty Lighting. Therefore, the motion court held that Mori Seiki failed to 

show that the executed agreement precluded Specialty Lighting from recovering 

under a consequential damages or breach of warranty claim against Mori Seiki.

In its cross-appeal, Mori Seiki asserts that, if the sales agreement did not 

govern Mori Seiki and Specialty Lighting's relationship, then the express 

warranty that was contained in that agreement also could not be applicable. 

Specialty Lighting responds that Mori Seiki misread the motion court's decision. 

It contends that although the motion court held that the sales agreement and 

proposal terms, which included the one-year statute of limitations and damages 

limitations, did not apply to Mori Seiki and Specialty Lighting, the court did not 

conclude that Mori Seiki failed to provide its standard warranty.

The motion court's statement of reasons confirm that it only held that the

sales agreement did not incorporate the proposal and did not apply to Mori Seiki. 

Specialty Lighting was given a brochure for the NLX, which advertised a twoyear warranty for Mori Seiki machines that stated: "Subject to limitations, Mori 

Seiki machines ordered after April 1, 2007 now have a 2-year warranty. Please 

contact your sales representatives for details." Specialty Lighting also provided 

an image from Mori Seiki's website stating that it has a two-year warranty. The 
24 A-2220-17T4

website, however, shows 2017 as the copyright year and there was no evidence 

presented that this warranty was offered on the website at the time that Specialty 

Lighting purchased the machine.

Although the brochure does not specify the scope of the warranty and 

directs the reader to contact a sales representative, the brochure suggests some 

type of express warranty, particularly when viewed in favor of the non-moving 

party, Specialty Lighting. Therefore, despite the motion court's finding that the 

sales agreement did not govern the transaction between Mori Seiki and Specialty 

Lighting, Specialty Lighting's breach of warranty claim against Mori Seiki 

survives summary judgment because there is a material dispute of fact as to the 

applicable warranty.

B. Limitation of Damages

In its summary judgment motion, Mori Seiki sought to limit Specialty 

Lighting's damages to the time when the replacement machine was ready to be 

delivered. The motion court rejected the argument and denied summary 

judgment on the measure of damages, reasoning that in order to find the damages 

were limited in that way, it would have "to find that [Specialty Lighting] was 

obligated to accept a defective replacement." The court concluded that Mori 

Seiki "failed to show that [Specialty Lighting] [was] not entitled to proceed 
25 A-2220-17T4

before a jury and argue that (1) the [r]eplacement was defective and (2) damages 

are to be measured from the date the [m]achine was delivered to the date 

[Specialty Lighting] purchased a suitable replacement."

Courts are obligated to examine a contract's "plain language . . . and the 

parties' intent, as evidenced by the contract's purpose and surrounding 

circumstances." Highland Lakes Country Club & Comty. Ass'n v. Franzino, 186 

N.J. 99, 115 (2006). "It is not the court's function to make a contract for the 

parties or to supply terms that have not been agreed upon." Schenck v. HJI 

Assocs., 295 N.J. Super. 445, 450 (App. Div. 1996). "When terms of a contract 

are clear 'it is the function of the court to enforce it as written and not to make a 

better contract for either party.'" Ibid. (quoting U.S. Pipe & Foundry Co. v. Am.

Arbitration Ass'n, 67 N.J. Super. 384, 393 (App. Div. 1961)). Importantly, "it 

is clear that a contract must be interpreted considering the surrounding 

circumstances and relationships of the parties, at the time it was entered into, to 

understand their intent and to give effect to the nature of the agreement as 

expressed on the written page." Id. at 450-51.

Here, the sales agreement is not clear as to whether Specialty Lighting 

was required to accept a defective replacement machine or whether it could 

recover any damages accruing after the date the replacement machine was ready 
26 A-2220-17T4

to be delivered. The sales agreement references only Maruka and Specialty 

Lighting and has no signature line for Mori Seiki. Although underneath the 

description of the equipment section, it states Specialty Lighting was purchasing 

the Mori Seiki NLX2500SY/700 with gantry loader "and options as per 

quotation # NJNJ116-JAM dated 6-1-11," it does not state that the terms and 

conditions of that proposal are included in the sales agreement. The motion

court did not err when concluding that the sales agreement and proposal did not 

govern Mori Seiki's and Specialty Lighting's relationship.

C. Breach of Warranty

Finally, Mori Seiki asserts that the motion court should have found that 

Specialty Lighting's refusal to accept the replacement machine precluded its 

breach of warranty claim. Under the UCC, "where circumstances cause an 

exclusive or limited remedy to fail of its essential purpose, the buyer has the 

remedy as provided in N.J.S.A. 12A:2-719(2)." Gen. Motors Acceptance Corp. 

v. Jankowitz, 216 N.J. Super. 313, 329 (App. Div. 1987). "[T]he exclusive 

remedy of repair and replacement of defective parts fails of its essential purpose 

if, after numerous attempts to repair, the [product] did not operate as . . . 

[intended,] free of defects." Ibid. If the product or a component of the product

"contains a defect or malfunction, after a reasonable number of attempts to 
27 A-2220-17T4

remedy defects or malfunctions of the product, the consumer may elect a refund

including reasonable incidental expenses." Id. at 330 (citing U.S.C. § 2304(d)).

In cases where a breach of warranty provision limits a seller's obligation 

to repair or replace defective equipment, "before the exclusive remedy is 

considered to have failed in its essential purpose, the seller must be given an 

opportunity to repair or replace the product." BOC Grp., Inc. v. Chevron Chem. 

Co., LLC, 359 N.J. Super. 135, 147 (App. Div. 2003). A remedy may fail in its 

essential purpose if the product does not operate free of defects after several 

attempts to repair, "or repair or replacement take an unreasonable time to 

complete." Id. at 148.

To determine if a remedy failed in its essential purpose, courts "must 

examine 'the facts and circumstances surrounding the contract, the nature of the 

basic obligations of the party, the nature of the goods involved, the uniqueness 

or experimental nature of the items, the general availability of the items, and the 

good faith and reasonableness of the provision.'" Ibid. (quoting J.A. Jones 

Constr. Co. v. City of Dover, 372 A.2d 540, 549 (Del. Super. Ct. 1977)).

Here, the motion court denied summary judgment on Specialty Lighting's 

breach of warranty claim in favor of Mori Seiki because it concluded that even 

if "a repair-or-replace provision applie[d] to the dispute, whether the warranty 
28 A-2220-17T4

failed [in] its essential purpose [was] a question of fact." The court also found 

that Specialty Lighting's "refusal to accept the [r]eplacement . . . [did] not 

preclude [Specialty Lighting] from showing that the warranty failed [in] its 

essential purpose."

The motion court properly denied summary judgment because a material 

factual dispute existed as to the terms of the warranty and because the issue of 

"[w]hether an exclusive remedy fail[ed] in its essential purpose is a question of 

fact." See ibid. at 148. A factual question also existed as to whether the 

replacement machine was actually defective and, if so, whether Specialty 

Lighting was obligated to accept a defective machine.

Affirmed.