SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0290-20

NIXON MEDICAL APPAREL

& LINEN SERVICE 

SPECIALIST,

Plaintiff-Respondent,

v.

HEALTH PLUS SURGERY

CENTER, LLC,

Defendant-Appellant.

___________________________

Argued November 29, 2021 – Decided January 25, 2022

Before Judges Sumners and Firko.

On appeal from the Superior Court of New Jersey, Law 

Division, Bergen County, Docket No. L-2556-19.

Anthony M. Juliano argued the cause for appellant 

(Brach Eichler, LLC, attorneys; Keith J. Roberts, of 

counsel and on the brief; Anthony M. Juliano, on the 

briefs).

Steven Pontell argued the cause for respondent (Verde, 

Steinberg & Pontell, LLC, attorneys; Steven Pontell

and Martine Pierre-Paul, 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NOT FOR PUBLICATION WITHOUT THE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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A-0290-20

PER CURIAM

Defendant Health Plus Surgery Center, LLC appeals the order granting 

summary judgment to plaintiff Nixon Medical Apparel & Linen Service 

Specialist in the amount of $157,066.21 for unpaid invoices and liquidated 

damages. We affirm because the motion judge applied the correct legal 

principles in granting summary judgment.

I

In December 2016, the parties entered in a written contract in which

plaintiff — a medical apparel supplier, agreed to supply defendant — an 

ambulatory surgery center, with certain services, merchandise, and wares, 

including laundry bags, sheets, and scrubs. The contract covered a thirty-sixmonth period and would be automatic renewed unless defendant notified 

plaintiff at least ninety days prior to the contract's expiration. The contract 

provided that if defendant had "complaints about the quality of service that 

[were] not . . . resolved during the normal course of business," it was required 

to submit written notice "by registered mail" to plaintiff's president, Jason 

Bernstein, and allow plaintiff an opportunity to make a "good faith effort" to 

resolve the issue "within thirty days of receipt" of the notice. If plaintiff did not 
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resolve the issue, defendant could terminate the contract so long as certain 

conditions were met, including the payment of any outstanding balance. 

A liquidated damages clause specified the amount of money defendant 

would owe plaintiff if defendant terminated the contract without sufficient 

cause. The clause provided:

In the event of cancellation of this agreement, the 

parties agree that the damages that will be sustained by 

[plaintiff] will be substantial and difficult to ascertain. 

Therefore, if this [contract] is cancelled by [defendant] 

prior to the termination date for any reason other than 

for failure of [plaintiff] to perform under its guarantee 

or; if this agreement is terminated by [plaintiff] for 

cause, [defendant] agrees to pay to [plaintiff], as 

liquidated damages and not as a penalty, either [fifty 

percent] of the average weekly invoice amount for the 

preceding ninety day period times the unexpired term 

or, purchase all items, whether in service with 

[defendant] or held in stock by [plaintiff], at [its] 

standard replacement values then in effect. Prior to 

termination, [defendant] will also be responsible for 

any unpaid charges on [its] account. 

During the contract's first year, defendant raised numerous concerns 

regarding missed or delayed service, shortage of linens and scrubs, poor quality 

scrubs, and a lack of communication. The record reflects plaintiff addressed the 

communications problems, which were attributed to an employee being on leave 

for about three months, and service was suspended as permitted under the 

contract due to defendant's unpaid invoices. 
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On or about November 30, 2017, defendant terminated the contract, 

claiming missed deliveries, product availability, product shortage, soiled linens, 

and lack of communication. At the time, defendant owed plaintiff $18,509.75

in unpaid invoices. Prior to terminating the contract, defendant had agreed with 

another supplier, Unitex, to deliver the same services plaintiff had provided. 

Plaintiff sued for breach of contract, seeking damages for unpaid invoices

and liquidated damages, totaling $157,066.21. Following discovery, Judge 

Estela M. De La Cruz entered an order and written statement of reasons granting 

plaintiff's summary judgment in the total amount sought.

II

Before us, defendant argues the judge erred in granting summary 

judgment because it had just cause to terminate the contract due to plaintiff's 

failure to deliver quality products in conformity with the contract and to cure 

numerous complaints, and that it did not owe the amount claimed. We disagree. 

We review the order granting summary judgment de novo. 

Giannakopoulos v. Mid State Mall, 438 N.J. Super. 595, 599 (App. Div. 2014). 

When reviewing an order granting summary judgment, we apply "the same 

standard governing the trial [judge]." Oyola v. Liu, 431 N.J. Super. 493, 497 

(App. Div. 2013). A judge should grant summary judgment when the record 
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reveals "no genuine issue as to any material fact" and "the moving party is 

entitled to a judgment or order as a matter of law." R. 4:46-2(c). We consider

"whether the competent evidential materials presented, when viewed in the light 

most favorable to the non-moving party," in consideration of the applicable 

evidentiary standard, "are sufficient to permit a rational factfinder to resolve the 

alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life 

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

A non-moving party "cannot defeat a motion for summary judgment 

merely by pointing to any fact in dispute." Id. at 529. Thus, "once the moving 

party presents sufficient evidence in support of the motion, the opposing party 

must 'demonstrate by competent evidential material that a genuine issue of fact 

exists[.]'" Globe Motor Co. v. Igdalev, 225 N.J. 469, 479-480 (2016) (alteration 

in original) (citing Robbins v. Jersey City, 23 N.J. 229, 241 (1957)). 

Indeed, "if the party opposing [a] summary judgment motion 'offers . . . 

only facts which are immaterial or of an insubstantial nature, a mere scintilla, 

"fanciful, frivolous, gauzy or merely suspicious," he will not be heard to 

complain if the court grants summary judgment.'" Id. at 480 (citing Judson v. 

Peoples Bank & Trust Co., 17 N.J. 67, 75 (1954)). "'[T]hese general rules . . . 

without unjustly depriving a party of a trial, can effectively eliminate from 
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crowded court calendars cases in which a trial would serve no useful purpose'

. . . knowing that a rational jury can reach but one conclusion." Brill, 142 N.J. 

at 541. 

Summary judgment was appropriate based on the sound reasoning set 

forth by Judge De La Cruz in her written decision. She explained:

[Defendant] had already secured a replacement vendor 

at the time it had terminated the contract with 

[plaintiff]. The contract secured with Unitex is dated 

September 29, 2017[,] and for some time after it was in 

effect, defendant continued to communicate with 

[plaintiff], most specifically about pricing. [Defendant] 

terminated the [contract with plaintiff] once a better 

pricing agreement was obtained from the competitor, 

Unitex.

. . . .

. . . It is true, . . . that there were issues, there is 

nothing in this record to document that the problems 

encountered during the time of the parties' active 

engagement that these problems were not addressed.

. . . .

. . . Defendant presents no record of any 

continuing problem that [plaintiff] failed to address, 

and [defendant attorney]'s list of issues are explained, 

with support to the record. . . . Indeed, [defendant's 

employee] Millie Figuere[t]o informed [plaintiff's] 

representative that "she wasn’t going to follow the 

terms of [the contract]." 

. . . .
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. . . At the time of its termination, [defendant]

gave [plaintiff] no notice, in writing and to the 

[plaintiff's] president, of [defendant's] decision to walk 

away. 

. . . .

As the motion record documents, [defendant]

terminated [plaintiff's contract] once it obtained better 

pricing with Unitex, and as such, [defendant's] 

termination was without cause. . . . If the complaints 

[defendant argues] were about the quality of service 

that were not resolved during the normal course of

business, the contract gave [defendant] the opportunity, 

indeed required it, to move up [plaintiff's] corporate 

ladder before exiting prematurely from the [contract]. 

. . . .

. . . [Defendant] argues that th[e] liquidated 

damages formulation is unreasonable, and that it 

amounts to a penalty of sorts, even though it is admitted 

to be a part of the parties' [contract], and even though 

[defendant] entered into a whole new agreement with 

another vendor, Unitex, to replace [plaintiff], which 

had virtually the very same liquidated damages clause. 

. . . [The new agreement with Unitex] has virtually the 

same formulation to determine liquidated damages that 

[defendant] now argues is unreasonable and unfair. 

. . . .

. . . A liquidated damages clause is enforceable 

so long as [](a) the amount so fixed ["]is a reasonable 

forecast of just compensation for the harm that is 

caused by the breach," and (b) the harm that is caused 

by the breach is one that ["

]

is incapable or very difficult 
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of accurate estimate." Wasserman's Inc. v. Township 

of Middleton, 137 N.J. 238, 250 (1994) [quoting 

Westmount Country Club v. Kameny 82 N.J. Super 

200, 206 (1964)]. Given that [defendant's] new 

contract [with Unitex] also provides a virtual[ly]

mirrored liquidation clause causes great conflict for it 

to now argue unreasonableness in the contract [with 

plaintiff]. 

. . . .

Finally, the motion evidence shows that 

[defendant] had a balance due at the time it terminated 

[the contract]. This fact was confirmed by . . . Betty 

McCabe . . . [defendant's] [a]dministrator . . . who 

reviewed . . . invoices [at her deposition]. . . . The 

motion record is missing any documentation of 

payment of the $18,509.75 for unpaid invoices . . . . 

. . . .

. . . The fact that . . . defendant . . . brazenly 

pronounces that payment was made, without any 

reasonable documentation that such a business would 

have, does not raise a genuine issue of material fact. 

"Conclusory and self-serving assertions by one of the 

parties are insufficient to overcome the motion." 

Vizzoni [v. B.M.D.], 459 N.J. Super. [554,] 567 [(App. 

Div. 2019)]. 

In sum, the record demonstrates that defendant terminated the contract 

less than a year after it was entered without providing plaintiff with notice of 

performance issues and the opportunity to cure as required by the contract. 

There was no genuine issue of material fact presented, and damages were 
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awarded consistent with the contract terms between two sophisticated business 

entities. 

To the extent we have not specifically addressed any of defendant's

arguments, we conclude they lack sufficient merit to warrant discussion in a 

written opinion. R. 2:11-3(e)(1)(E).

Affirmed.