SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-2404- 21 MANSOUR S. MANSOUR, Plaintiff-Appellant,

v. GEMINI RESTORATION, INC., RAMESH BENIMADHO, R. BENIM ADHO & 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 2404

- 21 Son Electrical Contractors, Inc. (David J. Dering, of counsel and on the brief). Sweeney & Sheehan, attorneys for respondents Sta n Palaka and Top Notch Climate Control, LLC (Gaetano Mercogliano, of counsel; Louis J. Vogel, Jr., of co unsel and on the brief). Zirulnik DeMille & Flynn, attorneys for Gemini Restoration (Everett E. Gale a nd Courtney E, Dowd, on the brief).
PER CURIAM Plaintiff Mansour S. Mansour appeals from the trial co urt's order granting summary judgment in favor of defendants Gemini Rest oration (Gemini), Ramesh Benimadho of R. Benimadho & Son Electrical C ontractors (Benimadho) and Stan Palaka of Top Notch Climate Con trol, LLC (Top Notch). Plaintiff contends defendants are liable for a fire in his home, which originated in a location where defendants had completed renova tions. The trial court found plaintiff's expert did not articulate an appropriate duty that defendants owe d to plaintiff and failed to identify the cause of the f ire. For the reasons which follow, we affirm.
I. After plaintiff's home sustained flood damage in 20 14, his insurance

c ar rier supplied a list of recommended contractors to make necessary repairs.3 A- 2404

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Plaintiff selected Gemini. Gemini hired two subcon tractors: Benimadho and Top Notch. Benimadho perform ed the electrical wiring repair work and Top Notch performed the plumbing repair work. On December 27, 2017, a fire damaged plaintiff's ho me, rendering it uninhabitable. Plaintiff also suffered extensive p roperty damage and personal property loss . Plaintiff's home insurance carrier paid damage r elated 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 Fu nd Society as payoff under a final judgment, as plaintiff's home was in foreclosure

. The Ocean County Prosecutor's Office issued an arso n Investigation Report, the day after the fire on December 28, 2017 , which concluded the fire originated in the ceiling area "above the shower" i n the basement bathroom where defendant contractors had performed the dispu ted work three years ago

. The ir 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 thi s area compared to other areas of the basement." The detectives concluded that the fire was not caus ed by arson,4 A- 2404

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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 insur ance 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 ar son report and an expert report by professional engineer Timothy Geis of Tri dent Engineering, Inc., dated September 1, 2 021. Geis inspected the fire scene three and a half year s after the fire occurred, during July and August 2021. In his report, Geis first noted that the light fixture he observed hanging from the ceil ing 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 sh ower, this cannot be absolutely confirmed, as a fire orig in could not be found. It is [ his ] strong opinion, however, that the fire did start above the shower as this wa s 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 the5 A- 2404

- 21 fire. This, however, cannot be confirmed. There were no flammable fu el sources above the fire. Geis concluded, "[t]he origin and cause of the fire cannot absolutely be determined. The fire most likely started and burne d for the most time in the ceiling area above the basement shower. This was m ost likely the origin point of the fire." The trial court granted defendants' motion for summ ary judgment and denied plaintiff's cross-motion. The court found p laintiff's expert failed to give an opinion on duty or causation. Plaintiff then mo ved 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 liab ility

. The trial court denied reconsideration in an order dated April 1, 2022, re fusing to consider the late supplemental report

. Plaintiff contends the trial court erred: by grant ing summary judgment ; denying reconsideration; and rejecting his CFA claims.
II.6 A- 2404

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In reviewing the grant or denial of summary judgmen t, the standard of review is de novo; this court will use the same sta ndard 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 the re 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 & Li tig. 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. 2 007)); see also Bhagat v. Bhagat, 217 N.J. 22, 38 (2014) ("[T]his [c]ourt mus t review the competent evidential materials submitted by the parties to id entify whether there are genuine issues of material fact and, if not, whethe r 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, would7 A- 2404

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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 non moving 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 op inion passes muster, plaintiff argues the trial court erred by granting summary ju dgment 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 def eat summary judgment. We are not persuaded, as the dispositive issue on all claims i s plaintiff's absence of proof on causation.8 A- 2404

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To sustain a cause of action for negligence, a plai ntiff must establish four elements: "(1) a duty of care, (2) a breach of that duty, (3) pr oximate cause, and (4) actual damages." Townsend v. Pierre, 221 N.J. 36, 51 (2015) (quoting Polzo v. Cnty. of Ess ex , 196 N.J. 569, 584 (2008)). A plaintiff "must est ablish the existence of negligence 'by some competent proof,'" Franco v. Fairleigh Dickinson Univ., 467 N.J. Super. 8, 25 (App. Div. 2 021) (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 Lo ng v. Landy, 35 N.J. 44, 54 (1961)). "[W]hen deciding whether expert testimony is necess ary, a court properly considers 'whether the matter to be dealt with is s o esoteric that jurors of common judgment and experience cannot form a judgme nt 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 demonst rate that both the factual bases and the methodology are reliable." Townsend, 221 N.J. at 55.9 A- 2404

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The trial court's assessment that plaintiff was req uired 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

ex perience to "form a judgment as to whether the cond uct 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 con clude plaintiff's expert falls short. There were three defendants: Gemini, the general co ntractor; Top Notch , the plumbing sub contractor; and Benimadho, the electrical contracto r. In his report, Geis d id not establish an applicable standard of care by whi ch a jury could measure each defendant's conduct. He also did not "identify the factual bases for [his] conclusions, explain [his] methodol ogy, and demonstrate that both the factual bases and the methodology are reli able." 221 N.J. at 55. Such an opinion pla ces a jury in the unenviable position of being forced to speculate about the reasonableness of defendants' conduct. O n this record the court properly found plaintiff's expert failed to identif y an applicable standard of care

. Turning to causation, we note plaintiff's case rest ed on two reports: the initial arson report and Geis's expert report. Th e arson report contained a two

sentence conclusion :10 A- 2404

- 21 It is the opinion of this detective that this fire originated between the basement ceiling and first floor subflo or, over the basement on the South side of the structur e. The cause of the fire is accidental, a failure in e nergized electrical wiring cannot be eliminated as the cause of the fire. While the arson report does not eliminate faulty el ectrical wiring as a cause of the fire, it clearly does not implicate defendants on causation. Th e report does

not identify any defendant by name, nor does it highlig ht any defendant action or inaction which may have caused the fire. Next, the report does not provide an analysis or explanation of the conclusions reach ed by its author

. It rules out arson, but offers no guidance on the central questi on of causation. As for Geis's report, it states: The possible origins of the fire . . . were investi gated. 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. Therefor e, 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 t he cause of the fire. When we consider this fact together with Geis's admission t hat 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 a ction 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 viol ated 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 governme nt 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.4 5:14C- 1 kept it from secur ing permits for the plumbing work; and Benimadho's hist ory 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 co nduct by defendant; 2) an ascertainable loss by plaintiff; and 3) a causal re lationship between the unlawful conduct and the ascertainable loss." Bosland v. Wa rnock Dodge, Inc., 197 N.J. 543, 557 (2009) (citing Int'l Union of Operating En g'rs Local No. 68 Welfare12 A- 2404

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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 u nder 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 aft er it contracted to do a kitchen renovation. 138 N.J. at 8. The trial record showe d: Sears's work was visually unappealing; its electrical wiring installation was substandard and incomplete; it failed to comply with construction codes and rel ated 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 wi ring amounted to a dangerous, concealed defect. Ibid. The court therefore found Sears liable under the CF A. Cox is readily distinguishable from this case on th e crucial issue of causation. Geis provided no such detail, and plaintiff failed to present sufficient evidence on causation. I ns ufficient causal connection is just as fatal to pla intiff's CFA claim as it is to his negligence claim. This remains so even if plaintiff can13 A- 2404

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demonstrate a CFA violation, as the violation must cause the asce rtainable 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 plaintif f's expert evidence and the
2017 arson report in the light most favorable to him. T his argument suggests that plaintiff misreads our well-settled jurisprude nce concerning expert testimony in negligence matters, and we do not acce pt the premise of his argument. With that caveat, we disagree. A motion for reconsideration is "primarily an oppor tunity 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 significa nce of probative, competent evidence." Kornblueth v. Westover, 241 N.J. 289, 3 01 (2020) (quoting Guido v. Duane Morris LLP, 202 N.J. 79, 87-88 (2010)). R econsideration "is not appropriate merely because a litigant is dissatisfi ed with a decision of the court or wishes to reargue a motion. . . ." Palombi v. P alombi, 414 N.J. Super. 274, 288 (App. Div. 2010). Rule 4:24 -1(c) states in relevant part: "[n]o extension of t he discovery period may be permitted after an arbitration or tri al date is fixed, unless14 A- 2404

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exceptional circumstances are shown." Exceptional circumstances can be shown when " (1) counsel is diligent in pursuing discovery during the di scovery time period; (2) the additional discovery or disclo sure 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; a nd (4) the circumstances surrounding the failure to complete discovery are c learly beyond the control of both the attorney and the litigant seeking the exte nsion." Zadigan v. Cole, 369 N.J. Super. 123, 133 (Law Div. 2004). The trial court properly disregarded the late supplemental expert report, as plaintiff faile d 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 irr ational 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 fo r plaintiff to secure a "second bite at the apple." We find no abuse of discretion. We note plaintiff raises res ipsa loquitur the firs t time on appeal. While we "ordinarily will not consider issues that were no t presented to the trial court" State v. Arthur, 184 N.J. 307, 327 (2005) (citing N ieder v. Royal Indem. Ins.15 A- 2404

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Co., 62 N.J. 229, 234 (1973)), we make the followin g short observation. Plaintiff cites several cases to support his theory involving defendant contractors which had exclusive control of the premises and ins trumentalities which caused the fire

. The record shows defendants surrendered exclusive control of the premises and any instrumentalities suspected of causin g the fire years before its occurrence in 2017

. Again , absence of proof on causation is fatal to plaintiff 's latest theory of recovery. Affirmed.