NOT FOR PUBLICATION [Docket No. 112]

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

DAVE DONACHY, et al.,

Plaintiffs,

v.

PLAYGROUND DESTINATION 

PROPERTIES, INC.

Defendant.

Civil No. 1:10-cv-04038

(RMB/KMW)

OPINION

Appearances:

Benjamin F. Johns, Esquire

Joseph G. Sauder, Esquire

Chimicles & Tikellis, LLP

One Haverford Centre

361 West Lancaster Avenue

Haverford, Pennsylvania 19041 

Attorneys for Plaintiffs

Aaron Van Nostrand, Esquire

Cory M. Gray, Esquire

Greenberg Traurig LLP

200 Park Avenue

Florham Park, New Jersey 07932-0677 

Attorneys for Defendant

BUMB, UNITED STATES DISTRICT JUDGE:

I. Introduction

This matter comes before the Court upon a motion by 

Defendant, Playground Destination Properties, Inc.

(“Playground”), for summary judgment under Federal Rule of Civil

Procedure 56(a). [Docket No. 112]. Pursuant to prior Opinions 

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by this Court, [Docket Nos. 24, 60 & 100], the only remaining 

claims in this case are asserted pursuant to the New Jersey 

Consumer Fraud Act, N.J. Stat. Ann. § 56:8-1 et seq., (“NJCFA”)

by the remaining Plaintiffs, Dave Donachy, Carol Donachy, 

Anthony DiMeglio, Susan DiMeglio,1 Andrew Wingfield, Charlene 

Wingfield, Richard Kucharski and Suzanne Kurcharski (the 

“Plaintiffs”). For the reasons set forth below, Defendant’s 

motion shall be denied. 

II. Factual Background2

In 2002, Cherokee Ltd., (“Cherokee”) began to develop the 

Veranda resort in Turks and Caicos. (Def.’s Statement of 

Material Facts (“DSOF”) and Pls.’ Resp. to Def.’s Statement of 

Facts (“PRSOF”) at ¶ 1). In approximately July 2002, Playground 

entered into an Exclusive Listing and Marketing Agreement with 

Cherokee providing that Playground would market Veranda for 

Cherokee. (DSOF & PRSOF at ¶2). 

A. The Donachys

Plaintiffs Dave and Carol Donachy looked at real estate in 

Turks and Caicos after they attended a wedding on the island in 

July 2004. (DSOF and PRSPF at ¶ 3). The Donachys began to 

1 Defendant does not move for summary judgment with respect 

to the NJCFA claims of either Anthony or Susan Dimeglio. 2 Where there are significant factual disputes between the 

parties, the facts should be construed in favor of the nonmoving party. See Kopec v. Tate, 361 F.3d 772, 775 (3d Cir. 

2004), cert. denied, 543 U.S. 956 (2004).

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communicate about the Veranda with an employee of Playground 

named Taz Brown (“Brown”). (Id.). The parties agree that during 

those communications, Brown represented that any deposit 

submitted by Mr. Donachy would be “safe” and that the 

transaction was a “no-brainer.” (Id. at ¶ 4). The Donachys 

aver that Brown further represented to Mr. Donachy that a 

deposit submitted for the Veranda would be safe under “any and 

all circumstances,” and “no matter what.” (PRSOF at ¶ 4). Mr. 

Donachy understood Brown’s representations to mean that the 

Donachys would not lose their deposit even if Cherokee went 

bankrupt. (Pls.’ Statement of Material Fact (“PSOF”) at ¶¶ 3-

4). Defendant disputes that any such representations were made 

by Brown and further asserts that Mr. Donachy’s assertions are

uncorroborated, self-serving statements. 

Brown was the only person the Donachys spoke to from

Playground before they signed an Offer and Purchase Agreement 

for a unit at the Veranda.3 (DSOF & PRSOF at ¶¶ 5-6). The 

3 The Purchase Agreement provides, in relevant part:

5.2 All payments made by the Purchaser may be utilized 

by the Seller for the purpose of financing the 

Development including the cost of design, sales and 

marketing

5.3 The Deposit received from the Purchaser shall be 

held by the Seller’s Attorneys and only released to 

meet costs related to the Development.

(PRSOF at ¶ 5). 

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Donachys aver that, based on Brown’s representations, they 

submitted a $70,180 deposit (PSOF at ¶ 5). In 2008, the 

Donachys learned that their deposit would not be returned 

because Cherokee, who had used the deposit money for 

construction, had gone bankrupt. (PSOF & Def’s Resp. SOF 

(“DRSOF”) at ¶ 6).

B. The Kucharskis and Wingfields

Plaintiffs Richard and Suzanne Kucharski were visiting 

Turks and Caicos in the spring of 2004 when they allegedly 

observed an advertisement for the Veranda in a magazine. (DSOF & 

PRSOF at ¶ 7). After returning home, Mr. Kucharski emailed 

Playground about the Veranda using an email address that he saw 

on the magazine advertisement. (Id. at ¶ 8). Brown responded to 

Mr. Kucharski’s email, and the two of them discussed the 

Veranda, but Mr. Kucharski did not purchase a unit at that time.

(Id.). In those discussions, Brown allegedly stated that the 

twenty percent deposit required to purchase a unit would be safe 

in “all circumstances.” (PRSOF at ¶ 9). Defendant avers that 

there is nothing to corroborate Mr. Kucharski’s testimony on 

this point. 

Later in 2004, Mr. Kucharski and a friend returned to Turks 

and Caicos to research potential real estate acquisitions, 

including the Veranda, which they were shown by an independent 

agent named Robert Mueller, unaffiliated with Playground. (DSOF 

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& PRSPF at ¶ 9). While visiting the Veranda, Mr. Kucharski 

allegedly met a second independent agent unaffiliated with 

Playground, Karen Biker, who gave them an informational 

brochure, which stated, in part:

It is very interesting to note that condominium 

developers on the islands are demanding between 60 & 

75% of the purchase price as a total down payment 

before their purchasers take delivery of their 

finished product. They also make no secret of the fact 

that they utilize those funds for construction costs. 

Veranda will require only 20% down payment and these 

funds will be held in an interest bearing trust 

account, ensuring you are protected from any 

unforeseen circumstances, right through the 

construction period. 

(Id. at ¶ 10). Plaintiffs contend that a verbatim version of 

that brochure was created by a Playground representative and 

that Biker merely copied the brochure. (PRSOF at ¶ 10). 

Plaintiffs allege, and Defendant denies, that Mr. Kucharski 

advised Brown that he was doing research on the Veranda on 

behalf of himself, his wife, two other couples (including the 

Wingfields) and an individual. (Id. at ¶ 11). After returning 

home, Mr. Kucharski states that he spoke with Brown and Brown’s 

boss and that they made representations that, if anything 

happened, the deposit was safe and that Mr. Kucharski could get 

it back. (PSOF at ¶ 10). 

Mr. Kucharski avers that he relayed the information he had 

obtained about the Veranda, including the representations of 

Brown, to Andrew and Charlene Wingfield, as well as two other 

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couples. (PRSOF at ¶ 12). This group of individuals created a 

Turks and Caicos company named Grouper Properties, Ltd. 

(“Grouper Properties”), and Grouper Properties signed an Offer 

and Purchase Agreement for two units at the Veranda. (DSOPF & 

PRSOF at ¶ 13).4 Mr. Kucharski alleges that the members of 

Grouper Properties based their decision to purchase the units on 

Brown’s representations regarding the safety of the deposit.

(PSOF Resp. ¶ 12). Each member was to own a quarter share of 

the two units and was responsible for one-quarter of the 

deposit. (PSOF & DRSOF at ¶ 13). The group members, including 

the Wingfields, sent their deposits via personal check to Mr. 

Kucharski, who then used his personal bank account to execute a 

series of wire transfers to Cherokee for the $204,360 deposit. 

(PSOF & DRSOF at ¶¶ 14 & 17). Grouper Properties never had a 

bank account. (Id. at ¶ 15). In 2008, the Kucharskis and 

Wingfields learned that they would lose their deposit because 

Cherokee had used their deposit for construction and gone 

bankrupt. (Id. at ¶ 18). 

III. Applicable Standard

Summary judgment shall be granted if “the movant shows that 

there is no genuine dispute as to any material fact and the 

4 The Grouper Properties Purchase Agreement is identical in 

all material respects to the Donachys’ Purchase Agreement.

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movant is entitled to judgment as a matter of law.” Fed. R. 

Civ. P. 56(a). A fact is “material” if it will “affect the 

outcome of the suit under the governing law . . . .” Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is 

“genuine” if it could lead a “reasonable jury [to] return a 

verdict for the nonmoving party.” Id. When deciding the 

existence of a genuine dispute of material fact, a court’s role 

is not to weigh the evidence; all reasonable “inferences, 

doubts, and issues of credibility should be resolved against the 

moving party.” Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 

n.2 (3d Cir. 1983). However, a mere “scintilla of evidence,” 

without more, will not give rise to a genuine dispute for trial. 

Anderson, 477 U.S. at 252. Further, a court does not have to 

adopt the version of facts asserted by the nonmoving party if 

those facts are “utterly discredited by the record [so] that no 

reasonable jury” could believe them. Scott v. Harris, 550 U.S. 

373, 380 (2007). In the face of such evidence, summary judgment 

is still appropriate “where the record . . . could not lead a 

rational trier of fact to find for the nonmoving party . . . .” 

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 

587 (1986). 

The movant “always bears the initial responsibility of 

informing the district court of the basis for its motion, and 

identifying those portions of ‘the pleadings, depositions, 

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answers to interrogatories, and admissions on file, together 

with the affidavits, if any,’ which it believes demonstrate the 

absence of a genuine issue of material fact.” Celotex Corp. v. 

Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 

56(c)). Then, “when a properly supported motion for summary 

judgment [has been] made, the adverse party ‘must set forth 

specific facts showing that there is a genuine issue for 

trial.’” Anderson, 477 U.S. at 250 (quoting Fed. R. Civ. P. 

56(e)). The non-movant’s burden is rigorous: it “must point to 

concrete evidence in the record”; mere allegations, conclusions, 

conjecture, and speculation will not defeat summary judgment. 

Orsatti v. N.J. State Police, 71 F.3d 480, 484 (3d Cir. 1995); 

Jackson v. Danberg, 594 F.3d 210, 227 (3d Cir. 2010) (citing 

Acumed LLC v. Advanced Surgical Servs., Inc., 561 F.3d 199, 228 

(3d Cir. 2009)) (“[S]peculation and conjecture may not defeat 

summary judgment.”).

IV. Analysis

In order to successfully assert a NJCFA claim, a plaintiff 

must show three elements: (1) unlawful conduct by the defendant; 

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

relationship between the unlawful conduct and the ascertainable 

loss. See Indian Brand Farms, Inc., v. Novartis Crop Protection 

Inc., 617 F.3d 207, 219 (3d Cir. 2010)(quoting N.J. Citizen 

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Action v. Schering-Plough Corp., 367 N.J. Super. 8 (N.J. Super. 

Ct. App. (2007)). 

A. The Donachys

In a prior Opinion, [Docket No. 100], this Court held that 

of all of the alleged misrepresentations made to the Donachys,

the statement that the Veranda transaction was a “secure, nobrainer” constituted mere “puffery,” which is not actionable 

under the NJCFA. See Docket No. 100 at 15 (citing Slack v. 

Suburban Propane Ptnrs., L.P., No. 10-2548, 2010 WL 3810870, at 

*5 (D.N.J. Sept. 21, 2010) (holding that statements which said 

“when you shop at Suburban Propane, you get...the best value!” 

were not statements of fact, but non-actionable puffery)). This 

Court further held that “the remaining statements at issue here 

– statements like ‘your deposit will be safe under all 

circumstances’ or from all ‘unforeseen circumstances’ are not 

puffery.” Id. at 16. 

Defendant moves for summary judgment with respect to the 

Donachys, arguing that they did not testify as to any actionable 

misrepresentations made to them by Playground during sworn 

depositions. Instead, Defendant contends that the Donachys 

admit that Brown did not tell them their deposit could not be 

lost “under any circumstances” and that the contract documents 

expressly provide that the deposit could be used for 

construction. Defendant further contends that Plaintiffs

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improperly refer to interrogatory responses and a new 

declaration in which Mr. Donachy claims Brown said the deposit 

would be safe “no matter what” and “under all circumstances” in 

order to contradict his deposition testimony. The Defendant 

asks this Court to disregard Mr. Donachy’s declaration as one 

offered only for the improper purpose of defeating summary 

judgment. In sum, Defendant contends that all that remains to 

support the Donachys’ claim are statements already deemed by 

this Court to be non-actionable puffery. 

In response, Plaintiffs contend that they have provided 

sufficient evidence that Playground made actionable 

misrepresentations to Mr. Donachy – i.e., made statements to the 

effect that the deposits would be safe under all circumstances 

or from all unforeseen circumstances. First, Plaintiffs point 

to Mr. Donachy’s answers to Playground’s interrogatories which 

state, in relevant part: “Brown guaranteed that the deposit 

would be safe under ‘any and all circumstances’ and ‘no matter 

what.’ He told Plaintiff several times that this was a ‘secure, 

no-brainer’ transaction and that Plaintiff worried too much.” 

[Docket No. 116, Ex. A]. This evidence, Plaintiffs aver, is 

bolstered by Mr. Donachy’s similar deposition testimony wherein 

he stated that Brown told him that the deposit “would be put 

into trust. It would be safe.” [Docket No. 116-5, Ex. E at 

63:2-3]. Mr. Donachy further testified that he understood this 

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to mean that he “couldn’t lose” the deposit. [Id. at 63:14-17]. 

During his deposition, Mr. Donachy stated that he could not 

remember if Brown used those specific words “couldn’t lose it” 

but does remember use of the word “safe.” [Id. at 63:21-24].

Finally, Plaintiffs point to Mr. Donachy’s declaration, which 

states that Brown represented that “our deposit money would be 

safe under ‘any and all circumstances’ and ‘no matter what.’” 

[Docket No. 116, Ex. B]. 

With respect to Defendant’s arguments regarding Mr. 

Donachy’s declaration, this Court notes that “a sham affidavit 

is a contradictory affidavit that indicates only that the 

affiant cannot maintain a consistent story or is willing to 

offer a statement solely for the purpose of defeating summary 

judgment.” Jiminez v. All Am. Rathskeller, Inc., 503 F.3d 247, 

253 (3d Cir. 2007). This Court is, however, hesitant to deem 

the declaration at issue a “sham affidavit” as it is hard to 

characterize the affidavit as strictly “contradictory” to the 

prior deposition testimony. See id. at 254. In addition, 

“[w]hen there is independent evidence in the record to bolster 

an otherwise questionable affidavit, courts have generally 

refused to disregard the affidavit.” Id. (quoting Baer v. 

Chase, 392 F. 3d 609, 624 (3d Cir. 2004)). Here, the contents 

of Mr. Donachy’s declaration are corroborated by his answers to 

interrogatories, which were submitted prior to his deposition. 

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As such, this Court finds it need not disregard the declaration 

as a “sham.” 

Even without the disputed declaration, however, this Court 

finds there is sufficient evidence to deny summary judgment. 

First, there is competent evidence, including answers to 

interrogatories, that statements previously deemed “actionable” 

by this Court were uttered by Brown. See Pollino v. City of 

Philadelphia, 03-6288, 2005 U.S. Dist. LEXIS 2210, at *22-23 

(D.N.J. 2005)(“the Court is aware that substantive answers to 

interrogatories could certainly be used as "competent evidence" 

to defeat a summary judgment motion[.]”). As such, this Court 

will deny summary judgment as to the Donachys; there is 

sufficient evidence to create a genuine dispute of fact with 

respect to whether Brown made actionable representations to them 

beyond mere puffery. 

B. The Kucharskis and Wingfields

With respect to the Kucharskis and the Wingfields, 

Defendant asserts the following arguments in favor of summary 

judgment:5

5 In its reply brief, Defendant raises two new alternative 

arguments: First, even if Mrs. Kucharski and the Wingfields

could prove that Browns’ statements were intended to be received 

by them, they cannot prove the requisite causal nexus because 

Mr. Kucharski testified that he did not understand what Brown 

was talking about. Def.’s Reply Br. at 6-8. Second, the 

existence of the requisite causal nexus is undercut by the fact 

that Mr. Kucharski used a different broker to complete the 

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• Because Grouper Properties signed the contract and 

made the deposit, only Grouper Properties has standing 

under the NJCFA.

• The brochure containing alleged misrepresentations 

came from an independent agent unaffiliated with 

Playground. 

• Suzanne Kucharski and the Wingfields never had any 

communications with Playground and, in the absence of 

any alleged misrepresentations made to them, there can 

be no NJFCA claim. 

This Court will address these arguments in turn.

Grouper Properties and Standing 

Defendant argues that Grouper Properties “signed the 

contract and made the deposit” and therefore, only Grouper 

Properties has standing to assert a NJCFA claim. It is 

undisputed that Grouper Properties signed the contract for the 

Veranda. Plaintiffs are correct, however, that contractual 

Verdana transaction, which constitutes an intervening cause 

sufficient to destroy the needed connection between Defendant’s 

alleged conduct and Plaintiffs’ decision. Id. at 9-10. 

The Court notes that “[w]here a reply brief raises new 

arguments in support of a motion for summary judgment, the 

district court is justified in disregarding them.” Gucciardi v. 

Bonide Prods., No. 12-932, 2014 U.S. Dist. LEXIS 85509, at *24 

(E.D. Pa. June 24, 2014). Even if this Court were to entertain 

these arguments, however, it would find them unpersuasive. 

First, the Defendant takes Mr. Kucharski’s testimony out of 

context when it asserts that he did not understand what Brown 

was saying. Other testimony clearly indicates that Mr. 

Kucharski understood what Brown meant regarding the deposits. 

See e.g., Kucharski Dep: 57:7-13 (“Q: What do you remember him 

saying in those initial conversation s about the financials? A: 

You know, he always stressed the point of the deposit monies are 

not going to be used for development; if anything happens, you 

know, you would be able to get that money back.”). Second, for 

reasons discussed infra, Plaintiffs are able to demonstrate the 

requisite causal connection even though they used an independent 

agent to complete the transaction. 

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privity is not required to assert an NJCFA claim. See Port 

Liberte Homeowners Ass’n Inc., v. Sodoni Const. Co., 393 N.J.

Super 492, 506 (N.J. App. Div. 2007); Katz v. Schachter, 251 

N.J. Super. 467, 474 (N.J. App. Div. 1991). Instead, Plaintiffs 

must demonstrate: (1) unlawful conduct by the defendant; (2) an 

ascertainable loss by plaintiff; and (3) a causal relationship 

between the unlawful conduct and the ascertainable loss. See

Indian Brand Farms, Inc., 617 F.3d at 219. 

This Court finds that the evidence presented in this case 

demonstrates that the Kucharskis and the Wingfields suffered an 

ascertainable loss. “An ascertainable loss is ‘a definite, 

certain and measurable loss, rather than one that is merely 

theoretical.’” Schwartz v. Avis Rent a Car Sys., LLC, No., 11-

4052, 2014 U.S. Dist. LEXIS 108058, at *14 (D.N.J. Aug. 6, 

2014)(quoting Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 557, 

964 A.2d 741 (2009)). It is undisputed that Grouper Properties 

never had a checking account and that the Wingfields sent their 

deposits via personal check to Mr. Kucharski, who then used his 

personal bank account to execute a series of wires to Cherokee 

for the $204,360 deposit. (PSOF & DRSOF at ¶¶ 14 & 17). This 

Court finds that the funds paid directly from the Kucharskis’

and Wingfields’ checking accounts constitute the “definite, 

certain and measurable loss” required. 

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The Brochure, Indirect Misrepresentations and Causal Nexus 

Defendant further contends that the brochure Mr. Kucharski 

relies on for his claim came from Karen Biker, an independent 

agent not affiliated with Playground. This argument is not 

persuasive as there is sufficient evidence of other alleged 

misrepresentations made by Brown and Brown’s boss even in the 

absence of the brochure.6 For example, Mr. Kucharski testified 

that Brown made several misrepresentations to him:

Q: What do you remember [Brown] saying in those initial 

conversations about the financials?

A: You know, he always stressed the point of the deposit 

monies are not going to be used for development; if 

anything happens, you know, you would be able to get that 

money back.

***

Q: And when you say that you thought your deposit would be, 

you know, protected if anything happened, I understand you 

were basing that on what . . . Ms. Biker had said to you? 

A: Uh-huh.

Q: What else were you basing that on?

A: What Taz [Brown] had said. 

6 Defendant raises an argument in its reply brief that 

statements made by Brown’s “boss” constitute inadmissible 

hearsay. That argument is unavailing as those statements are 

not being offered for the truth of the matter asserted in those 

statements. In addition, such statements are being offered to 

show the effect on the listener, Mr. Kucharski. See Marks v. 

Marina, 213 Fed. Appx. 147, 153 (3d Cir. Jan. 10, 2007) (finding 

that the court properly admitted evidence offered not for its 

truth, but to show the effect on the listener). 

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(Kucharski Dep. 57:7-13 & 66:24-67:12). Mr. Kucharski also 

testified that Brown’s boss made statements about the deposit to 

him as well. Id. at 88:12-19. 

While Defendant argues that there is no written 

documentation to corroborate that these statements were made,

taking all disputed facts in a light most favorable to the nonmovant, this Court finds that it is the province of a jury to 

determine whether the Plaintiffs’ testimony is credible. Big 

Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d 

Cir. 1992) (explaining that "it is inappropriate for a court to 

resolve factual disputes and to make credibility determinations" 

at the summary judgment stage).

In an additional argument, Defendants assert that Mrs. 

Kucharski and the Wingfields were not “intended recipients” of 

the alleged misrepresentations and that a plaintiff “must 

actually have heard/received the alleged misrepresentation in 

order to bring a claim.” Def.’s Reply. Br. 1. The case law is 

clear, however, that the NJCFA applies to indirect 

misrepresentations. See Indian Brand Farms, Inc., 617 F.3d at 

219 (“evidence of the kind of indirect reliance which satisfies 

the common law requirement would clearly satisfy the causal 

relationship requirement of the NJCFA.”); Beth Schiffer Fine 

Photographic Arts, Inc. v. Colex Imaging, Inc., 10-5321, 2012 

U.S. Dist. LEXIS 36695, at *40 (D.N.J. Mar. 19, 2012)(“Under 

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both the NJCFA and New Jersey common law fraud, the defendant 

can be liable for misrepresentations that it makes indirectly to 

the defrauded party without the intermediary being the

defendant's agent.”). 

Defendant additionally argues that Plaintiffs have not 

introduced any evidence to show that Brown knew of the other 

purchasers in the group before he made the representations that 

were allegedly passed on to the group, stating: “Kucharski 

admits that he didn’t even get his purchasing ‘group together’ 

until after his communications with Mr. Brown had ceased.” 

Def.’s Br. at 10 (citing Kucharski 73:16-23)(“Q: During that 

time that that decision was being made, did you have any contact 

with anyone affiliated with the Veranda? A: With Taz – you know, 

Taz was kind of on then at that point. It seemed to me Karen 

was on-island focus and Taz was not-on-island focus. So we had 

a bunch of follow-up, you know, discussions . . . .”). It is 

unclear, however, how the deposition testimony cited by 

Defendant supports its assertion. 

Instead, there are two pieces of evidence directly on 

point: first, is the declaration of Mr. Kucharski, [Docket No. 

116-4 Ex. D], wherein he states, “[d]uring my phone calls with 

Mr. Brown in advance of deciding to make a purchase and put down 

deposit money, I advised him several times that I was doing 

research on behalf of me, my wife, two other couples and an 

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individual, all of whom would ultimately make a purchase 

together as a group.” Second, in his deposition, Mr. Kucharski 

made clear that he would speak to Brown and would pass along any 

questions the group had onto him. Kucharski Dep. at 75:3-11. 

Defendant has presented no evidence to the contrary. As such, 

this Court finds that there is a genuine dispute of fact as to 

whether Brown intended that his statements be relied upon by the 

members of the group, and summary judgment is inappropriate. 

See Indian Brand Farms, Inc., 617 F.3d at 219 (denying summary 

judgment where there was sufficient evidence of indirect 

reliance on defendant’s statements).7 

Finally, there is sufficient evidence with respect to the 

requisite causal nexus. Unlike the case relied upon by 

Defendant, Chattin v. Cape May Greene Inc., 216 N.J. Super. 618 

(N.J. App. Div. 1987), wherein the subsequent purchases of homes 

never heard or relied upon representations regarding windows 

installed by the defendant, there is sufficient evidence here

that the alleged misrepresentations by Defendant were passed on 

to all Plaintiffs and that those misrepresentations formed a 

basis for the Plaintiffs’ decision to purchase Verdana units.

See Kucharski Dep. at 74:19-75:11:

7 A jury may ultimately find there were no alleged 

misstatements passed along to the group. However, at this 

stage, there is sufficient evidence to create a genuine dispute 

of fact for a jury to resolve. 

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Q: We were talking . . . about the roughly couple week 

period between the time you returned . . . from the island 

to you and your investment group, I’ll call them, 

determining to purchase at the Veranda. 

A: Uh-huh.

Q: During that time did you have ongoing discussions with 

the Wingfields . . . about the opportunity? 

A: I don’t recall how many times I spoke with Taz [Brown], 

but it was enough to kind of clarify some outstanding 

questions that we had, and I would update them as to the 

conversations, where we were, what we would do and we made 

some decisions on what units to purchase. 

Again, this evidence points to a nexus between the alleged 

misrepresentations by Brown and the Kucharski’s and Wingfield’s

decision to purchase the Veranda units. Therefore, summary 

judgment is improper. See Indian Brand Farms, Inc., 617 F.3d at 

221 (reversing grant of summary judgment on NJCFA claims as to 

written misrepresentations). 

V. Conclusion 

For the reasons set forth above, this Court finds that 

Defendant’s motion for summary judgment shall be denied. An 

appropriate Order will issue this date. 

 s/Renée Marie Bumb 

RENÉE MARIE BUMB

United States District Judge

Dated: August 21, 2014

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