SYLVIA ZIKA v. LOWE'S HOME CENTERS, LLC (L-0458-16, SUSSEX COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0961-18
SYLVIA ZIKA,
Plaintiff-Appellant,
v.
LOWE'S HOME CENTERS, LLC,
and LOWE'S COMPANIES, INC.,
Defendants-Respondents.
______________________________
Argued April 6, 2022 – Decided July 5, 2022
Before Judges Whipple, Geiger, and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Sussex County, Docket No. L-0458-16.
Sylvia Zika, appellant, argued the cause pro se.
Michael J. Gesualdo argued the cause for respondents
Lowe's Home Centers, LLC, and Lowe's Companies,
LLC (Robinson Miller, LLC, attorneys; Michael J.
Gesualdo, of counsel and on the briefs).
Matthew J. Platkin, Acting Attorney General, attorney
for respondent New Jersey Department of
Transportation (Melissa H. Raksa, Assistant Attorney
General, of counsel; David M. Kahler, Deputy Attorney
General, on the brief).
PER CURIAM
This litigation arises from a dispute concerning the installation and
maintenance of a driveway accessing Route 206 in Hampton Township. 1
Plaintiff Sylvia Zika appeals from Law Division orders dismissing her claims
against defendant Lowes Companies Inc. (Lowes) alleging fraud, negligence,
misrepresentation, unjust enrichment, and unfair and deceptive business
practices. After carefully reviewing the record in light of the applicable legal
principles, we affirm.
I.
We discern the following facts from the record. Plaintiff owns
commercial property used for her dental practice on Hampton House Road (State
Highway Route 206 South) in Hampton. Defendant Lowes purchased adjacent
property on Hampton House Road. In 2005,2 Lowes applied to Hampton
1
We heard oral argument in this appeal back-to-back with IMO Revocation of
Permit, No. A-1958-18. In that case, plaintiff appeals from a final agency
decision by the Commissioner of the Department of Transportation (DOT)
revoking plaintiff's use of the existing driveway that leads directly from
plaintiff's property to Route 206.
2
The record indicates some permits were approved as early as 2002.
A-0961-18
2
Township (Township) for site plan approval to build a home improvement
warehouse store. DOT issued a permit to Lowes to construct a driveway, known
as Town Center Drive, that would provide access from defendant's warehouse
store to Route 206. The township's approval of defendant's site plan required
closure of plaintiff's existing driveway.
On October 31, 2008, defendant's counsel contacted plaintiff seeking
access to ten feet of her property in order to construct a driveway connecting her
property to Town Center Drive. The parties entered into negotiations.
On November 20, 2008, plaintiff and Lowes signed an agreement detailing
the terms of the new driveway. The agreement provided: plaintiff would grant
access to Lowes to ten feet of her property to construct a connection from her
property to Town Center Drive; Lowes would clear all brush and overgrown
trees obstructing view of plaintiff's property; Lowes would remove plaintiff's
original driveway; Lowes would grant plaintiff a perpetual easement for a right-
of-way across defendant's property; Lowes was responsible for all costs
associated with constructing the new driveway and removing the old driveway;
Lowes would pay plaintiff $4,000; plaintiff could place two signs on the area of
the easement; Lowes would install "conduit pipe as designated on the attached
A-0961-18
3
plan with pull string;" plaintiff was responsible for designing, constructing and
obtaining all permits for the signs.
Plaintiff attached to the agreement a sketched map indicating where she
wanted the conduit, signs, and lights to be placed. She signed the agreement
assuming defendant accepted her sketched map. The only difference between
Lowes' original offer and plaintiff's counteroffer was the placement of the
conduit in the hand-sketched map she attached to the agreement. Defendant's
representative initialed "WJA" to the handwritten changes plaintiff made to the
agreement.
In November 2008, Lowes sent plaintiff a map depicting an alternative
placement of the conduit. That same month, Lowes began construction of
plaintiff's new driveway. On November 24, 2008, Arris Construction submitted
a proposal to install the conduit piping with pull string for the two signs at a cost
of $4,350.
On December 10, 2008, plaintiff sent a letter to Lowes complaining about
the placement of the conduit, the closure of the original driveway, and the trees
and debris. Defendant's representative responded that Lowes had not agreed to
a specific placement of the conduit.
A-0961-18
4
On August 11, 2009, Lowes granted a perpetual easement that provided:
plaintiff would have access across defendant's property; Lowes would not
obstruct the free flow of pedestrian and vehicular traffic over the easement; and
Lowes would be responsible for "the routine maintenance and repair of the . . .
[easement]."
Four years later, in August 2013, an engineering firm submitted a
driveway closure plan for plaintiff's driveway. An official at DOT's Region
North Maintenance and Operations Office accepted the driveway closure plan
on behalf of the Department.3
We next recount the relevant portions of the lengthy and complex
procedural history of the litigation leading to this appeal. In October 2013,
plaintiff filed a verified complaint against Lowes, the Township, and the DOT.
On December 12, 2013, the first judge assigned to the case (initial judge)
dismissed plaintiff's complaint, reasoning that plaintiff essentially was
challenging a state agency action and thus the case needed to be heard in the
Appellate Division. We in turn remanded the matter to DOT. Zika v. Lowe's
Cos., Inc., A-2350-13 (App. Div. May 6, 2014). As we have noted, the
3
DOT's actions with respect to the closure of plaintiff's original driveway are
the subject of the related appeal in A-1958-18. See supra note 1.
A-0961-18
5
proceedings before DOT and the Office of Administrative Law (OAL) are the
subject of plaintiff's separate back-to-back appeal from a final agency decision.
See supra notes 1 and 3.
On April 28, 2016, plaintiff moved to reinstate her complaint against
Lowes. She also moved to change venue from Morris County to Sussex County
and transfer the case from the Chancery Division to the Law Division.
On June 10, 2016, the initial judge denied reconsideration of the
December 12, 2013, order and denied plaintiff's request to reinstate her
complaint. However, on August 10, 2016, the initial judge permitted her to
amend and reinstate her complaint for money damages against Lowes. On
August 29, 2016, plaintiff filed an amended complaint against Lowes, alleging
the following: (1) fraud based on defendant not performing its obligations
pursuant to the agreement; (2) breach of contract; (3) misrepresentation; (4)
negligence; (5) unjust enrichment; (6) unfair and deceptive business practices;
and (7) liability for punitive damages.
Thereafter, venue was transferred to Sussex County, Law Division. On
April 12, 2017, plaintiff filed a motion to amend her complaint for the second
time to add the Township and the Hampton Township Planning Board as
defendants. She also sought to add new claims for fraud in the inducement,
A-0961-18
6
fraud by forgery, and fraudulent misrepresentation. Plaintiff alleged that Lowes
presented a fraudulent contract to DOT and the Township in its efforts to secure
permits. She also sought to add two counts against the Township and Lowes for
failing to make Town Center Drive (Lowes' driveway) a municipal street.
On May 12, 2017, another judge assigned to the case (second judge)
denied plaintiff's motion for leave to file the second amended complaint. The
second judge concluded that plaintiff did not have standing to bring a fraud
claim premised on alleged misrepresentations Lowes made to DOT and the
Township in securing permits, reasoning that plaintiff was not a victim of that
alleged fraud. In rendering his oral opinion, the second judge explained:
Furthermore, plaintiff's claims for fraud are duplicative
of her original fraud pleading and premised on the same
factual allegations in her prior complaint. Plaintiff
attempted to bifurcate her fraud claim into separate
frauds and bring claims on behalf of [DOT] and [the
Township]. Plaintiff simply does not have standing to
do so as she has no stake in the issuance of the permits
by [DOT] and [the Township].
Plaintiff's interest lies in her claims of breach of
contract for fraudulent representation made to her in
securing said contract.
On May 25, 2017, plaintiff filed a motion for reconsideration of the second
judge's order, which was denied on August 18, 2017. We denied plaintiff's
motion for leave to appeal.
A-0961-18
7
On July 10, 2017, plaintiff submitted a statement of damages for her
breach of contract claim. She claimed loss of income of $26,979, loss of
business value of $13,490, litigation expenses of $4,017, and expert fees of
$2,600.
In October 2017, a third judge (trial judge) began handling the matter. On
October 6, 2017, defendant moved for summary judgment.
On July 3, 2018, the trial judge granted summary judgment in favor of
Lowes on plaintiff's claims of misrepresentation, fraud, negligence, unjust
enrichment and punitive damages, but not on her breach of contract claim. The
trial judge rendered a nineteen-page written opinion in which he limited
plaintiff's breach-of-contract damages to the payment of $4,000 pursuant to the
agreement, the installation of conduit pipes, snowplowing, and any damages
plaintiff could establish from the breach of the easement.
Lowes moved for reconsideration of the trial court's determination to
permit the breach of contract claim to go to trial. The record before us does not
provide a resolution of that motion; since the matter proceeded to trial, we
presume it was denied.
On July 23, 2018, the trial judge denied plaintiff's request to adjourn the
trial, explaining there had already been multiple extensions of discovery . On
A-0961-18
8
July 25, 2018, a jury trial began on plaintiff's breach of contract claim. At the
close of plaintiff's case, defendant moved for a directed verdict, which was
denied.
On July 26, 2018, the jury returned a verdict in plaintiff's favor. The jury
found there was a contract between the parties, defendant breached it, and that
she was entitled to (1) $4,000 pursuant to the terms of the contract; (2) $4,500
for the conduit that was not installed; and (3) $1,500 for routine maintenance
and repair of the easement, including snowplowing. The trial court signed an
order awarding plaintiff $10,000 including costs.
On September 14, 2018, plaintiff moved for additur or a new trial on
damages, which was denied. The trial court nonetheless awarded plaintiff
additional costs of $230. This appeal followed.
Plaintiff raises the following contentions for our consideration:
POINT I
IN HOLDING PLAINTIFF SYLVIA ZIKA LACKS
STANDING, THE LAW DIVISION COMMITTED
REVERSIBLE ERROR.
A. STANDING IS BROADLY CONSTRUED
UNDER THE MUNICIPAL LAND USE LAW,
WHERE STANDING IS ACCORDED ANY
PERSON WHOSE RIGHT TO "USE,
ACQUIRE, OR ENJOY PROPERTY IS OR
A-0961-18
9
MAY BE AFFECTED BY ANY ACTION
TAKEN UNDER THE MLUL."
B. THE TRIAL COURT FAILED TO APPLY THE
CORRECT LEGAL STANDARD FOR
ASSESSING STANDING UNDER
MUNICIPAL LAND USE LAW.
C. PLAINTIFF HAS STANDING TO BRING AN
ACTION FOR FRAUD,
MISREPRESENTATION, NEGLIGENCE,
UNFAIR AND DECEPTIVE BUSINESS
PRACTICES AND PUNITIVE DAMAGES.
D. PLAINTIFF SYLVIA ZIKA HAS STANDING
AS AN INJURED THIRD PARTY.
POINT II
THE TRIAL COURT ERRED IN GRANTING
SUMMARY JUDGMENT TO DEFENDANT
[LOWES'] COMPANIES INC.
A. THE COURT ERRED WHEN IT RELIED ON
PATENTLY UNRELIABLE SOURCES IN
PREPARING ITS FINDINGS OF FACT.
B. THE TRIAL JUDGE USED THE WRONG
TEST IN DECIDING SUMMARY JUDGMENT,
AND THEREFORE, MUST BE REVERSED.
C. THE TRIAL COURT FAILED TO CONSTRUE
FACTS IN THE LIGHT MOST FAVORABLE
TO PLAINTIFF AND TO DRAW ALL
PERMISSIBLE INFERENCES.
D. THE TRIAL JUDGE ERRED IN GRANTING
SUMMARY JUDGMENT BECAUSE
A-0961-18
10
DISCOVERY WAS NOT COMPLETE AND
PLAINTIFF STILL WISHED DISCOVERY.
E. EVIDENTIAL MATERIALS RAISE
SUFFICIENT CREDIBILITY ISSUES
REQUIRING RESOLUTION BY A TRIER OF
FACT.
II.
We first address plaintiff's contention that the second judge erred by
finding she had no standing to bring a fraud complaint in which she alleged
Lowes had made fraudulent misrepresentations to DOT and the Township in its
effort to secure permits. The second judge ruled that plaintiff was not claiming
that she herself had been defrauded, but rather alleged that the Township and
DOT had been defrauded by Lowes' misrepresentations.
We begin our analysis by acknowledging the foundational legal principles
governing this appeal. A court's decision regarding standing is a question of law
subject to de novo review. Cherokee LCP Land, LLC v. City of Linden Plan.
Bd., 234 N.J. 403, 414–15 (2018) (citing People for Open Gov't v. Roberts, 397
N.J. Super. 502, 508 (App. Div. 2008)). In Triffin v. Somerset Valley Bank, we
explained that
standing refers to a party's "ability or entitlement to
maintain an action before the court." [N.J. Citizen
Action v. Riviera Motel Corp., 296 N.J. Super. 402, 409
(App. Div. 1997)]. To be entitled to sue, a party must
A-0961-18
11
have "a sufficient stake and real adverseness with
respect to the subject matter of the litigation." [In re
Baby T., 160 N.J. 332, 340 (1999)]. Additionally, "[a]
substantial likelihood of some harm visited upon the
plaintiff in the event of an unfavorable decision is
needed for the purposes of standing." Ibid. Standing
has been broadly construed in New Jersey as "our
courts have considered the threshold for standing to be
fairly low." Reaves v. Egg Harbor Township, 277 N.J.
Super. 360, 366 (Ch. Div. 1994).
[343 N.J. Super. 73, 80–81 (App. Div. 2001).]
Plaintiff cites Jersey Shore Med. Ctr.-Fitkin Hosp. v. Baum's Est., for the
proposition that although the general rule is that a litigant has no standing to
assert the rights of a third party, a litigant might have standing if he or she can
"show sufficient personal stake and adverseness so that the Court is not asked
to render an advisory opinion." 84 N.J. 137, 144 (1980) The second judge
directly addressed plaintiff's argument, ruling:
Plaintiff continues to rely on [Jersey Shore] in asserting
that she has a sufficient stake to assert the rights of a
third party, in this case [DOT]. In Jersey Shore, there
was no other party other than the hospital that could
have asserted the deceased husband's constitutional
rights under the Fourteenth Amendment to the United
States [Constitution]. Here, the DOT and [the
Township] could have asserted fraud claims or
conferred standing to plaintiff. Neither the DOT nor
[the Township] did so. Furthermore, plaintiff's
outcome in the litigation is not dependent on a
constitutional question.
A-0961-18
12
Plaintiff argues that she has standing to assert the rights of the DOT and
the Township because she was the true injured party. The gravamen of her
standing contention is that she was injured by Lowes' alleged fraud because the
fraudulent misrepresentations resulted in DOT deciding to revoke her driveway
access. Given the low threshold for establishing standing under New Jersey law,
we agree in concept with plaintiff's argument that a person might have standing
to challenge willful misrepresentations to a government agency if those
fraudulent statements directly result in injury to the person claiming st anding.
But in this instance, for reasons we explain more fully in the companion appeal,
the decision by DOT to revoke plaintiff's access to her original driveway was
entirely proper and in accordance with the statutory and regulatory framework
that ensures the safety of the motoring public. As we concluded in the other
appeal, plaintiff had no protectible interest in using her original driveway to
access Route 206 because the DOT-approved closure plan ensured that she was
given reasonable access to her commercial property via Town Center Drive. We
add that the agreement between plaintiff and Lowes contemplated removal of
her original driveway. Accordingly, even given an expansive view of standing,
plaintiff was not injured by the fraudulent representations she alleges that Lowes
A-0961-18
13
made to the Township and DOT. 4 In our view, that critical circumstance
effectively precludes plaintiff from suing Lowes for fraudulent statements that
were made to government officials and not to her.
In the interest of completeness, we briefly address plaintiff's specific
arguments relating to standing even though they fail, ultimately, because DOT's
decision to revoke access to her original driveway was proper and lawful.
Plaintiff contends the second judge erred in denying her standing because
he applied an incorrect standard under the Municipal Land Use Law (MLUL),
N.J.S.A. 40:55D-1 to -163. Specifically, plaintiff cites N.J.S.A. 40:55D-4 for
the proposition that an "interested party" for purposes of the MLUL is
any person, whether residing within or without the
municipality, whose right to use, acquire, or enjoy
property is or may be affected by any action taken under
[the MLUL] . . . or . . . [a person whose property rights]
have been denied, violated or infringed by an action or
a failure to act [pursuant to the MLUL].
Plaintiff's reliance on the MLUL is misplaced, however, because her right
to use or enjoy her property has not been affected by an action taken under the
MLUL. The DOT's determination to revoke access to plaintiff's original
4
We note that the only aspect of the contract plaintiff claims is fraudulent is
the map depicting an incorrect placement of the conduit pipes. Plaintiff does
not appear to claim that the contract itself, setting forth the terms for closing the
driveway, is fraudulent.
A-0961-18
14
driveway was done pursuant to the New Jersey State Highway Management Act,
N.J.S.A. 27:7-89 to -98 (the Act) and the New Jersey State Highway Access
Management Code, N.J.A.C. 16:47-1.1 to -14.1, (the Code), and not the MLUL.
N.J.A.C. 16:47-11.1 provides: "An adjustment, modification, or removal of
access will allow continuation of the existing use on the lot or site." Thus,
plaintiff's property rights were not "denied, violated or infringed by an action or
a failure to act [pursuant to the MLUL]." N.J.S.A. 40:55D-4; see also State ex
rel. Comm'r of Transp. v. Marlton Plaza Assocs., LP, 426 N.J. Super. 337, 351–
55 (App. Div. 2012) (holding a person has no possessory right to access the
State's highways and roads from any particular point on his or her property).
Thus, even accepting as true plaintiff's allegations that Lowes defrauded the
Township and DOT in pursuing permits concerning its warehouse store, those
misrepresentations to the Township and DOT did not cause compensable injury
to plaintiff because the access to her driveway was properly revoked, in
accordance with the Act and the code.
Plaintiff also relies on Cherokee LCP Land. That case tested the limits of
the definition of "interested party" within the MLUL. The Court recognized that
under the MLUL, "development on one parcel of land can have consequences
for others." Cherokee LCP Land, 234 N.J. at 403. The plaintiff in Cherokee
A-0961-18
15
LCP Land challenged a planning board decision affecting a neighboring
property. Id. at 418. That plaintiff alleged "that the proposed project would
eliminate certain points of access to the Neighboring Property, interfere with an
existing easement on the Property, and substantially modify storm water
management on the Property." Ibid. The Court held that the plaintiff, as an
entity with a possessory interest in the neighboring property, had standing to
challenge the planning board's determination. Ibid.
Here, however, there is no easement that was interfered with and no storm
management concern. Plaintiff has not been deprived of a possessory interest
in her property because she will have full access to her property via reasonable
alternative access as determined by the DOT. More fundamentally, Cherokee
LCP Land addresses when a person has standing to challenge a planning board's
approval of a land use application for a neighboring property. It does not address
a person's standing to initiate a private cause of action against a corporation for
alleged misrepresentations it made to a governmental entity as part of that
approval process.
Relatedly, plaintiff also relies on Aurentz v. Plan. Bd. of Little Egg Harbor
Twp. for the proposition that any citizen or taxpayer has standing to challenge a
zoning scheme or comprehensive plan of the township. 171 N.J. Super. 135,
A-0961-18
16
143–44 (Law Div. 1979). We deem Aurentz to be inapplicable to the present
matter because that plaintiff was not challenging a zoning scheme or
comprehensive plan of the Township.
Plaintiff cites DePetro v. Twp. of Wayne Plan. Bd., for the proposition
that a property owner's economic interest coinciding with a strong public interest
in the issue raised could be sufficient to confer standing. 367 N.J. Super. 161,
172 (App. Div. 2004). Here, plaintiff has shown no economic impact to the
revocation of her driveway given that she had agreed to the removal of the
driveway and was provided reasonable alternative access to her commercial
property. Nor do we find any strong public interest in plaintiff retaining her
original driveway, especially considering that she had agreed to its removal.
III.
We turn next to plaintiff's contention that the trial court erred in granting
summary judgment to Lowes on plaintiff's claims of misrepresentation, fraud,
negligence, unjust enrichment, and punitive damages. We affirm the dismissal
of the fraud-related complaints essentially for the same reason that we affirm
the denial of standing: plaintiff suffered no compensable injury from the alleged
misrepresentations Lowes made to the Township and DOT.
A-0961-18
17
We begin our analysis by acknowledging the legal principles governing
this appeal. Our review of a trial court's summary judgment order is de novo.
Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199
(2016) (citing Mem'l Props., LLC v. Zurich Am. Ins. Co., 210 N.J. 512, 524
(2012)). Accordingly, the trial court's analysis is not entitled to any special
deference. Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366,
378 (1995).
We apply the same standards as the trial court when reviewing an appeal
of an order granting summary judgment. Walker v. Atl. Chrysler Plymouth, 216
N.J. Super. 255, 258 (App. Div. 1987). Summary judgment should be granted
when the pleadings and discovery 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). A genuine issue of material fact exists
when the discovery materials, "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." Brill v. Guardian Life Ins.
Co., 142 N.J. 520, 540 (1995).
Importantly for the purposes of this appeal, "[b]are conclusions in the
pleadings, without factual support in tendered affidavits, will not defeat a
A-0961-18
18
meritorious application for summary judgment." U.S. Pipe & Foundry Co. v.
Am. Arb. Ass'n., 67 N.J. Super. 384, 399–400 (App. Div. 1961). Our rules
require a movant to file a statement of material facts, with or without supporting
affidavits, that sets forth a concise statement of each material fact to which the
movant contends there is no genuine issue. R. 4:46-2(a). The respondent must
file a responding statement that admits or disputes each fact in the movant's
statement. R. 4:46-2(b). Unless the respondent specifically disputes a material
fact and demonstrates the existence of a genuine issue of fact, the movant's
statement will be deemed admitted. R. 4:46-2(a)–(c). A party offering no
substantial or material facts in opposition to the motion cannot complain if the
court takes as true the uncontradicted facts in the movant's papers. See Judson
v. People's Bank & Tr. Co. of Westfield, 17 N.J. 67, 75 (1954); R. 4:46-5.
We note that the trial judge granted summary judgment in defendant's
favor based in part on a finding that plaintiff failed to establish that defendant
had an intent to deceive. We do not agree with that portion of the trial court's
opinion. As a general matter, summary judgment should not be granted when
part of the cause of action involves a determination as to a "party's state of mind,
knowledge, intent or motive." In re Est. of DeFrank, 433 N.J. Super. 258, 267
(App. Div. 2013). As our Supreme Court explained in Judson:
A-0961-18
19
Where, as here, the opposing party charges the moving
party with willful fraud and must probe the conscience
of the moving party . . . to prove his case, or in any case
where the subjective elements of willfulness, intent or
good faith of the moving party are material to the claim
or defense of the opposing party, a conclusion from
papers alone that palpably there exists no genuine issue
of material fact will ordinarily be very difficult to
sustain. The telltale factor of demeanor in the presence
of the trier of fact often assumes such vital importance
in such cases that the opposing party should generally
not be denied the opportunity to have the moving party,
or its officers, appear on the witness stand before the
trial of fact.
[17 N.J. at 76.]
Defendant Lowes was nonetheless entitled to summary judgment as a
matter of law, R. 4:46-2, because plaintiff failed to establish an essential element
of the fraud-related claims. To make a prima facie case of fraud, a plaintiff must
show damages, among other things. Weil v. Express Container Corp., 360 N.J.
Super. 599, 612–13 (App. Div. 2003). To prove negligent misrepresentation,
the plaintiff must show he or she was injured as a consequence of relying upon
the false statement. Carroll v. Cellco P'ship, 313 N.J. Super. 488, 502 (App.
Div. 1998). To show unjust enrichment, the plaintiff must have expected
remuneration and the defendant's failure to give remuneration must have
unjustly enriched the defendant. EnviroFinance Grp., LLC v. Env't Barrier Co.,
440 N.J. Super. 325, 350 (App. Div. 2015).
A-0961-18
20
In sum, all of the fraud-related causes of action that were summarily
dismissed require proof that plaintiff suffered quantifiable damages as a result
of a wrong committed by defendant. But, as we have already noted, the closure
of her driveway does not constitute a quantifiable loss because she had no right
to a particular access point so long as she retained reasonable access to the
State's streets and highways. Indeed, as we have noted, it is not disputed that
the agreement between plaintiff and Lowes expressly contemplated that the
original driveway would be removed. Furthermore, DOT's determination to
revoke access to the original driveway was the result of DOT's independent
finding that the driveway violated the code, not because of any fraudulent
misrepresentation Lowes allegedly made to the Township or DOT.
Accordingly, we conclude that, as a matter of law, any fraudulent
misrepresentations made by Lowes did not result in a compensable injury
suffered by plaintiff.
To the extent we have not addressed them, any additional arguments
raised by plaintiff lack sufficient merit to warrant discussion in this opinion. R.
2:11-3(e)(1)(E).
Affirmed.
A-0961-18
21