SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-2404-21 

MANSOUR S. MANSOUR, 

 Plaintiff-Appellant, 

v.

GEMINI RESTORATION, INC., 

RAMESH BENIMADHO, 

R. BENIMADHO & SON 

ELECTRICAL CONTRACTORS, 

STAN PALAKA, and TOP NOTCH 

CLIMATE CONTROL, LLC, 

 Defendants-Respondents. 

______________________________

Submitted September 19, 2023 – Decided November 17, 2023 

Before Judges Sumners and Smith. 

On appeal from the Superior Court of New Jersey, Law 

Division, Ocean County, Docket No. L-0087-20.

Hegge & Confusione, LLC, attorneys for appellant 

(Michael Confusione, of counsel and on the briefs).

Leary, Bride, Mergner & Bongiovanni, attorneys for 

respondents Ramesh Benimadho and R. Benimadho & 

NOT FOR PUBLICATION WITHOUT THE 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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Son Electrical Contractors, Inc. (David J. Dering, of 

counsel and on the brief). 

Sweeney & Sheehan, attorneys for respondents Stan 

Palaka and Top Notch Climate Control, LLC (Gaetano 

Mercogliano, of counsel; Louis J. Vogel, Jr., of counsel 

and on the brief). 

Zirulnik DeMille & Flynn, attorneys for Gemini 

Restoration (Everett E. Gale and Courtney E, Dowd, on 

the brief). 

PER CURIAM 

Plaintiff Mansour S. Mansour appeals from the trial court's order granting 

summary judgment in favor of defendants Gemini Restoration (Gemini), 

Ramesh Benimadho of R. Benimadho & Son Electrical Contractors 

(Benimadho) and Stan Palaka of Top Notch Climate Control, LLC (Top Notch). 

Plaintiff contends defendants are liable for a fire in his home, which originated 

in a location where defendants had completed renovations. The trial court found 

plaintiff's expert did not articulate an appropriate duty that defendants owed to

plaintiff and failed to identify the cause of the fire. For the reasons which 

follow, we affirm. 

I.

After plaintiff's home sustained flood damage in 2014, his insurance 

carrier supplied a list of recommended contractors to make necessary repairs. 
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Plaintiff selected Gemini. Gemini hired two subcontractors: Benimadho and 

Top Notch. Benimadho performed the electrical wiring repair work and Top 

Notch performed the plumbing repair work. 

On December 27, 2017, a fire damaged plaintiff's home, rendering it 

uninhabitable. Plaintiff also suffered extensive property damage and personal 

property loss. Plaintiff's home insurance carrier paid damage related claims in 

the amount of $548,121.23 for the dwelling and $161,697.00 for personal 

property. The carrier sent the payments to Wilmington Savings Fund Society as 

payoff under a final judgment, as plaintiff's home was in foreclosure. 

The Ocean County Prosecutor's Office issued an arson Investigation 

Report, the day after the fire on December 28, 2017, which concluded the fire 

originated in the ceiling area "above the shower" in the basement bathroom 

where defendant contractors had performed the disputed work three years ago. 

Their report noted oxidation on the metal duct and pipe work in the ceiling, and 

that the shower enclosure had "melted from the top down approximately two 

feet from the ceiling." Next, the report stated, "all these observations indicate 

that the fire . . . burned hotter and longer in this area compared to other areas of 

the basement." The detectives concluded that the fire was not caused by arson, 
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and that "a failure in energized electrical wiring cannot be eliminated as the 

cause of the fire." 

Plaintiff sued defendants for damages arising from the house fire, 

claiming the damages exceeded his homeowner's insurance carrier payout. 

Plaintiff's liability theories included common law fraud, violations of the 

Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -227, and negligence. Following 

discovery, both parties moved for summary judgment. 

At oral argument, plaintiff relied solely on the arson report and an expert 

report by professional engineer Timothy Geis of Trident Engineering, Inc., dated 

September 1, 2021. Geis inspected the fire scene three and a half years after the 

fire occurred, during July and August 2021. In his report, Geis first noted that 

the light fixture he observed hanging from the ceiling in 2017 photographs taken 

by the prosecutor's office was now buried beneath debris on the shower floor. 

He further noted that the wires that had previously connected the shower stall 

light to the "ground conductor" in the ceiling were cut. Geis stated: 

While it appears that the fire started above the shower, 

this cannot be absolutely confirmed, as a fire origin 

could not be found. It is [his] strong opinion, however, 

that the fire did start above the shower as this was the 

most burned area found in the home. If the shower light 

had been left on, it is possible that the lighting module 

inside the light fixture could have been the origin of the 
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fire. This, however, cannot be confirmed. There were 

no flammable fuel sources above the fire. 

Geis concluded, "[t]he origin and cause of the fire cannot absolutely be 

determined. The fire most likely started and burned for the most time in the 

ceiling area above the basement shower. This was most likely the origin point 

of the fire." 

The trial court granted defendants' motion for summary judgment and 

denied plaintiff's cross-motion. The court found plaintiff's expert failed to give 

an opinion on duty or causation. Plaintiff then moved for reconsideration and 

submitted a supplemental expert report dated March 30, 2022, which further 

supported his negligence claim. 

At the reconsideration motion, plaintiff argued his claims were viable 

under the CFA due to defendants' lack of permitting and licensing, and that there 

were certain factual issues regarding Palaka's liability. The trial court denied 

reconsideration in an order dated April 1, 2022, refusing to consider the late 

supplemental report. 

Plaintiff contends the trial court erred: by granting summary judgment; 

denying reconsideration; and rejecting his CFA claims. 

II. 
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In reviewing the grant or denial of summary judgment, the standard of 

review is de novo; this court will use the same standard as the motion judge. 

Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 

N.J. 189, 199 (2016). It decides first whether there was a genuine issue of fact. 

If there wasn't, this court is required to "decide whether the trial court correctly 

interpreted the law." DepoLink Court Reporting & Litig. Support Servs. v. 

Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (quoting Massachi v. AHL 

Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007)); see also Bhagat v. 

Bhagat, 217 N.J. 22, 38 (2014) ("[T]his [c]ourt must 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."). 

Summary judgment must be granted if "the pleadings, depositions, 

answers to interrogatories and admissions on file, together with affidavits, if

any, show that there is no genuine issue as to any material fact challenged and 

that the moving party is entitled to a judgment or order as a matter of law." 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 the non-moving party, would 
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require submission of the issue to the trier of fact." R. 4:46(c). The judge must 

engage in a weighing process and decide whether: 

the competent evidential materials presented, when 

viewed in the light most favorable to the non-moving 

party, are sufficient to permit a rational factfinder to

resolve the alleged disputed issue in favor of the nonmoving party. . . . If there exists a single, unavoidable 

resolution of the alleged disputed issue of fact, that 

issue should be considered insufficient to constitute a 

'genuine' issue of material fact for purposes of Rule 

4:46-2. 

[Brill v. Guardian Life Ins. Co. of Am., 142 N.J 520, 

540 (1995) (citation omitted).] 

 

Thus, "when the evidence 'is so one-sided that one party must prevail as a matter 

of law,' the trial court should not hesitate to grant summary judgment." Ibid. 

(citation omitted). The trial court must not decide issues of fact: it must only

decide whether there are any such issues. Ibid. 

III. 

 In addition to arguing that his expert's opinion passes muster, plaintiff 

argues the trial court erred by granting summary judgment on his CFA claims, 

and by denying reconsideration. He raises for the first time on appeal the 

argument that res ipsa loquitur should apply to defeat summary judgment. We 

are not persuaded, as the dispositive issue on all claims is plaintiff's absence of 

proof on causation. 
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To sustain a cause of action for negligence, a plaintiff must establish four 

elements: "(1) a duty of care, (2) a breach of that duty, (3) proximate cause, and 

(4) actual damages." Townsend v. Pierre, 221 N.J. 36, 51 (2015) (quoting Polzo 

v. Cnty. of Essex, 196 N.J. 569, 584 (2008)). A plaintiff "must establish the 

existence of negligence 'by some competent proof,'" Franco v. Fairleigh 

Dickinson Univ., 467 N.J. Super. 8, 25 (App. Div. 2021) (quoting Townsend, 

221 N.J. at 51). Negligence "'must be shown and . . . will not be presumed 

. . .The mere showing of an incident[]is not alone sufficient to authorize the 

finding of an incident of negligence." Ibid. (quoting Long v. Landy, 35 N.J. 44, 

54 (1961)). 

"[W]hen deciding whether expert testimony is necessary, a court properly 

considers 'whether the matter to be dealt with is so esoteric that jurors of 

common judgment and experience cannot form a judgment as to whether the 

conduct of the [defendant] was reasonable.'" Davis v. Brickman Landscaping, 

219 N.J. 395, 407 (2014) (quoting Butler v. Acme Mkts., Inc., 89 N.J. 270, 283 

(1982)). We require an expert "be able to identify the factual bases for their 

conclusions, explain their methodology, and demonstrate that both the factual 

bases and the methodology are reliable." Townsend, 221 N.J. at 55. 
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The trial court's assessment that plaintiff was required to present an expert 

to testify, because both the origin and cause of fires are beyond the ken of the 

average juror, was proper. We do not expect jurors of common judgment and 

experience to "form a judgment as to whether the conduct of [defendants] was 

reasonable." Davis, 219 N.J. at 407. The burden is on plaintiff to establish an 

applicable standard of care and a breach thereof. We conclude plaintiff's expert 

falls short. 

There were three defendants: Gemini, the general contractor; Top Notch, 

the plumbing subcontractor; and Benimadho, the electrical contractor. In his

report, Geis did not establish an applicable standard of care by which a jury 

could measure each defendant's conduct. He also did not "identify the factual 

bases for [his] conclusions, explain [his] methodology, and demonstrate that 

both the factual bases and the methodology are reliable." 221 N.J. at 55. Such 

an opinion places a jury in the unenviable position of being forced to speculate 

about the reasonableness of defendants' conduct. On this record the court 

properly found plaintiff's expert failed to identify an applicable standard of care. 

Turning to causation, we note plaintiff's case rested on two reports: the 

initial arson report and Geis's expert report. The arson report contained a twosentence conclusion: 
10 A-2404-21

It is the opinion of this detective that this fire originated 

between the basement ceiling and first floor subfloor, 

over the basement on the South side of the structure. 

The cause of the fire is accidental, a failure in energized 

electrical wiring cannot be eliminated as the cause of 

the fire. 

While the arson report does not eliminate faulty electrical wiring as a cause of 

the fire, it clearly does not implicate defendants on causation. The report does 

not identify any defendant by name, nor does it highlight any defendant action 

or inaction which may have caused the fire. Next, the report does not provide 

an analysis or explanation of the conclusions reached by its author. It rules out 

arson, but offers no guidance on the central question of causation. 

As for Geis's report, it states: 

The possible origins of the fire . . . were investigated. 

Although one or more of these could not be ruled out as 

possible origin of the fire, there was no solid evidence 

that any of them did originate the fires. Therefore, 

Trident was unable to determine the exact cause of the 

fire. 

A careful reading of the report shows Geis did not express an opinion to a 

reasonable degree of scientific probability as to the cause of the fire. When we 

consider this fact together with Geis's admission that he "was unable to 

determine the cause of the fire," we conclude that his expert report constitutes 

an inadmissible net opinion. 
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 Plaintiff next contends he has a viable cause of action under the CFA, and 

that the trial court erred in dismissing this claim on summary judgment. Plaintiff 

argues that Gemini's failure to secure permits violated the CFA, and that because 

of this he suffered an ascertainable loss. 

Plaintiff cites Cox v. Sears Roebuck & Co., 138 N.J. 2 (1994), as support 

for his argument that the failure to secure permits allowed defendants to perform 

their work in a substandard manner without government supervision or 

inspection. Plaintiff contends defendants' failure to secure permits in violation 

of the CFA amounts to negligence. Plaintiff points out numerous supporting 

arguments to buttress its CFA claim. The arguments include: Gemini 

improperly used defective ceiling tiles not specified in the contract; Top Notch's 

lack of a plumbing license as required by N.J.S.A.45:14C-1 kept it from securing

permits for the plumbing work; and Benimadho's history of negligence in 

performing electrical work. 

 "In analyzing claims under the CFA . . . there are only three elements 

required for the prima facie proofs: 1) unlawful conduct by defendant; 2) an 

ascertainable loss by plaintiff; and 3) a causal relationship between the unlawful 

conduct and the ascertainable loss." Bosland v. Warnock Dodge, Inc., 197 N.J. 

543, 557 (2009) (citing Int'l Union of Operating Eng'rs Local No. 68 Welfare 
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Fund v. Merck & Co., Inc., 192 N.J. 372, 389 (2007)). A finding of a CFA 

violation does not necessarily result in recovery under the CFA, as the plaintiff 

must still demonstrate causation and ascertainable loss. Perez v. Professionally 

Green, LLC, 215 N.J. 388, 401 (2013). 

 Plaintiff's reliance on Cox is misplaced. In Cox, a homeowner sued Sears 

for breach of contract and violation of the CFA after it contracted to do a kitchen 

renovation. 138 N.J. at 8. The trial record showed: Sears's work was visually 

unappealing; its electrical wiring installation was substandard and incomplete; 

it failed to comply with construction codes and related regulations; and Sears 

did not secure permits. Ibid. In Cox, plaintiff proffered an expert witness who 

testified thoroughly on causation, explaining that the entire kitchen had not been 

rewired, and what new wiring had been installed did not meet code. Id. at 9. 

The expert further testified that the electrical wiring amounted to a dangerous, 

concealed defect. Ibid. The court therefore found Sears liable under the CFA. 

Cox is readily distinguishable from this case on the crucial issue of causation. 

Geis provided no such detail, and plaintiff failed to present sufficient 

evidence on causation. Insufficient causal connection is just as fatal to plaintiff's 

CFA claim as it is to his negligence claim. This remains so even if plaintiff can 
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demonstrate a CFA violation, as the violation must cause the ascertainable loss, 

and plaintiff has not cleared that hurdle. 

Finally, plaintiff submits the trial court erred by denying his motion for 

reconsideration when it failed to consider plaintiff's expert evidence and the 

2017 arson report in the light most favorable to him. This argument suggests 

that plaintiff misreads our well-settled jurisprudence concerning expert 

testimony in negligence matters, and we do not accept the premise of his 

argument. With that caveat, we disagree. 

A motion for reconsideration is "primarily an opportunity to seek to 

convince the court that either 1) it has expressed its decision based upon a 

palpably incorrect or irrational basis, or 2) it is obvious that the court either did 

not consider, or failed to appreciate the significance of probative, competent 

evidence." Kornblueth v. Westover, 241 N.J. 289, 301 (2020) (quoting Guido 

v. Duane Morris LLP, 202 N.J. 79, 87-88 (2010)). Reconsideration "is not 

appropriate merely because a litigant is dissatisfied with a decision of the court 

or wishes to reargue a motion. . . ." Palombi v. Palombi, 414 N.J. Super. 274, 

288 (App. Div. 2010). 

Rule 4:24-1(c) states in relevant part: "[n]o extension of the discovery 

period may be permitted after an arbitration or trial date is fixed, unless 
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exceptional circumstances are shown." Exceptional circumstances can be 

shown when " (1) counsel is diligent in pursuing discovery during the discovery 

time period; (2) the additional discovery or disclosure sought is essential to the 

case; (3) the reason why counsel failed to request an extension of discovery 

within the original discovery period is provided; and (4) the circumstances 

surrounding the failure to complete discovery are clearly beyond the control of 

both the attorney and the litigant seeking the extension." Zadigan v. Cole, 369 

N.J. Super. 123, 133 (Law Div. 2004). The trial court properly disregarded the 

late supplemental expert report, as plaintiff failed to show exceptional 

circumstances warranting its use pursuant to Rule 4:24-1(c). Plaintiff did not 

meet his burden on reconsideration, as he did not demonstrate that the trial court: 

"made its decision upon a palpably incorrect or irrational basis"; or "did not 

consider, or failed to appreciate the significance of probative, competent 

evidence." Kornblueth, 241 N.J. at 301 (quoting Guido, 202 N.J. at 87-88). A 

motion for reconsideration is not an opportunity for plaintiff to secure a "second 

bite at the apple." We find no abuse of discretion. 

We note plaintiff raises res ipsa loquitur the first time on appeal. While 

we "ordinarily will not consider issues that were not presented to the trial court" 

State v. Arthur, 184 N.J. 307, 327 (2005) (citing Nieder v. Royal Indem. Ins. 
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Co., 62 N.J. 229, 234 (1973)), we make the following short observation. 

Plaintiff cites several cases to support his theory involving defendant contractors 

which had exclusive control of the premises and instrumentalities which caused 

the fire. The record shows defendants surrendered exclusive control of the 

premises and any instrumentalities suspected of causing the fire years before its 

occurrence in 2017. Again, absence of proof on causation is fatal to plaintiff's 

latest theory of recovery. 

Affirmed.