MARIA PIEMONTESE VS. THREE COUNTY VOLKSWAGEN CORPORATION (L-8975-18, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-5048-18
MARIA PIEMONTESE,
Plaintiff-Appellant,
v.
THREE COUNTY VOLKSWAGEN
CORPORATION AND JAMES
MASTROGIOVANNI,
Defendants-Respondents.
______________________________
Submitted February 10, 2021 – Decided April 21, 2021
Before Judges Vernoia and Enright.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-8975-18.
Dunne, Dunne & Cohen, LLC, attorneys for appellant
(F.R. Dunne, III and Mena H. Ibrahim, on the brief).
Ahmuty Demers & McManus, attorneys for
respondents (Roberto Creagh, on the brief).
PER CURIAM
Plaintiff Maria Piemontese appeals from a May 10, 2019 order dismissing
her complaint, and a June 21, 2019 order denying her motion for reconsideration.
We reverse and remand for reinstatement of plaintiff's complaint.
On December 13, 2018, plaintiff filed a pro se complaint seeking damages
from defendants Three County Volkswagen, Corp. and its sales agent, James
Mastrogiovanni, in connection with a car purchase. She alleged that on
December 23, 2016, defendants committed "fraudulent acts" by using her credit
card to buy a car for her friend, Justo De La Vega. 1
Plaintiff claimed she drove De La Vega to the dealership on December 23
so he could finalize the purchase of a car for himself. After running a credit
check, Mastrogiovanni informed De La Vega that he was not qualified to finance
the purchase of the vehicle. According to plaintiff, without her knowledge or
authority, Mastrogiovanni then used her credit card to finance the purchase of
the car in her name. Plaintiff further alleged Mastrogiovanni used her credit
card for various add-on options, such as gap insurance, tire coverage, and
extended warranties.
In lieu of filing an answer, defendants moved to dismiss the complaint for
failure to state a claim under Rule 4:6-2(e). Defendants argued plaintiff's
1
Defendants claim the transaction occurred on December 24, 2016.
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complaint failed to allege sufficient facts to satisfy the elements of common law
fraud. In support of defendants' motion, Mastrogiovanni certified plaintiff and
De La Vega came to the dealership on December 24, 2016, but that when De La
Vega did not qualify to finance the car, plaintiff agreed to have the car financed
in her name. Mastrogiovanni attached documentation evidencing proof of the
purchase, including a sales contract, a gap insurance form, financing
confirmation, and the vehicle invoice, all reflecting plaintiff's name and
signature.
On May 10, 2019, the trial court granted defendants' unopposed motion
and dismissed plaintiff's complaint.2 The motion judge concluded plaintiff's
"complaint fails to allege the elements of common law fraud . . . . Plaintiff has
failed to allege any evidence of a misrepresentation of facts by [defendants],
upon which plaintiff detrimentally relied to induce her to purchase a vehicle."
On June 6, 2019, plaintiff filed a motion for reconsideration which was denied
2
To the extent defendants' motion relied on materials outside the pleadings, it
should have been treated as a motion for summary judgment. See R. 4:6-2
(stating that if a party on a Rule 4:6-2(e) motion to dismiss relies on "matters
outside the pleading[s,]" the motion should be "treated as one for summary
judgment and disposed of as provided by [Rule] 4:46, and all parties shall be
given reasonable notice of the court's intention to treat the motion as one for
summary judgment and a reasonable opportunity to present all material pertinent
to such motion").
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on June 21, 2019. The motion judge found plaintiff did not meet the criteria for
relief under Rule 4:49-2.
On appeal, plaintiff argues the motion judge erred by dismissing her
complaint. She also raises the novel argument that her reconsideration motion
should have been granted to give her a chance to amend her complaint.
Alternatively, she contends she should be allowed to amend her complaint based
on "interests of equity, fairness and justice."
We review the grant of a motion to dismiss a complaint for failure to state
a cause of action de novo, applying the same standard under Rule 4:6-2(e) that
governed the motion court. Frederick v. Smith, 416 N.J. Super. 594, 597 (App.
Div. 2010). Such review "is limited to examining the legal sufficiency of the
facts alleged on the face of the complaint," and, in determining whether
dismissal under Rule 4:6-2(e) is warranted, the court should not concern itself
with plaintiff's ability to prove her allegations. Printing Mart-Morristown v.
Sharp Elecs, Corp., 116 N.J. 739, 746 (1989).
If "the fundament of a cause of action may be gleaned even from an
obscure statement of claim," then the complaint should survive this preliminary
stage. Ibid. (quoting Di Cristofaro v. Laurel Grove Memorial Park, 43 N.J.
Super. 224, 252 (App. Div. 1957)). "The examination of a complaint's
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allegations of fact required by the aforestated principles should be one that is at
once painstaking and undertaken with a generous and hospitable approach."
Ibid. "If a generous reading of the allegations merely suggests a cause of action,
the complaint will withstand the motion." F.G. v. MacDonell, 150 N.J. 550, 556
(1997). A trial court should grant the dismissal "in only the rarest of instances."
Printing Mart-Morristown, 116 N.J. at 772. Ordinarily, such motions are
granted without prejudice. Smith v. SBC Communs., Inc., 178 N.J. 265, 282
(2004).
In New Jersey, there are five elements of common law fraud: "(1) a
material misrepresentation of the presently existing or past fact; (2) knowledge
or belief by the defendant of its falsity; (3) an intention that the other person rely
on it; (4) a reasonable reliance thereon by the other person; and (5) resultant
damages." Gennari v. Weichert Co. Realtors, 148 N.J. 582, 610 (1997).
"A complaint sounding in fraud, must on its face, satisfy the requirements
of Rule 4:5-8." State, Dep't of Treasury, Div. of Inv. ex rel. McCormac v. Qwest
Commc'ns Intern., Inc., 387 N.J. Super. 469, 484 (App. Div. 2006). Rule 4:5-
8(a) requires that any complaint alleging fraud provide the "particulars of the
wrong, with dates and items if necessary, . . . insofar as practicable. Malice,
intent, knowledge, and other condition of mind of a person may be alleged
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generally." A court may dismiss a complaint alleging fraud if "the allegations
do not set forth with specificity, nor do they constitute as pleaded, satisfaction
of the elements of legal or equitable fraud." Levinson v. D'Alfonso & Stein, 320
N.J. Super. 312, 315 (App. Div. 1999).
Governed by these standards and viewing the complaint in light of the
applicable law, we find plaintiff's complaint sufficiently alleged a "fundament
of a cause of action," so that it should have survived defendants' dismissal
motion. See Printing Mart-Morristown, 116 N.J. at 746. Plaintiff specifically
alleged that on December 23, 2016, defendants committed "fraudulent acts" by
using her credit card to finance the purchase of De La Vega's vehicle "without
consulting with her" and that they were able to "get financing of" over $37,000
by doing so. Further, she alleged that when Mastrogiovanni asked her for her
driver's license and credit card, she believed this was "a precaution to maybe
test drive the car [her] friend was buying." Additionally, she asserted that a "few
days later," she noticed "the dealer used [her] credit card for a loan [in her] name
instead of [her] friend, who was buying and negotiated the car." Plaintiff alleged
she begged defendants to cancel the deal and they refused, so she "had to pay
from [her] own pocket." These limited facts sufficiently stated "particulars of
the wrong, with dates" to satisfy the requirements of Rule 4:5-8(a).
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Plaintiff's alleged facts also implicated a Consumer Fraud Act (CFA)
claim, N.J.S.A. 56:8-1 to -20. CFA provides, in part, that it is unlawful for
persons to use or employ
any unconscionable commercial practice, deception,
fraud, false pretense, false promise, misrepresentation,
or the knowing, concealment, suppression or omission
of any material fact with intent that others rely upon
such concealment, suppression or omission, in
connection with the sale or advertisement of any
merchandise . . . whether or not any person has in fact
been misled, deceived or damaged thereby.
[N.J.S.A. 56:8-2.]
Although plaintiff's complaint was "bare bones" in nature, we are satisfied from
the particular claims she asserted that the complaint was legally sufficient to
withstand a dismissal under Rule 4:6-2(e).
The court's order "dismissed" the complaint "pursuant to [Rule] 4:6-2(e)."
We presume the complaint was dismissed without prejudice since "[o]rdinarily
a dismissal for failure to state a claim is without prejudice." Pressler &
Verniero, Current N.J. Court Rules, cmt. 4.1.1. on R. 4:6-2(e) (2019); see also
Nostrame v. Santiago, 213 N.J. 109, 128 (2013). Plaintiff therefore appealed
from an interlocutory order without leave of this court. See Grow Co. v.
Chokshi, 403 N.J. Super. 443, 460 (App. Div. 2008) (explaining a "dismissal
without prejudice of unadjudicated claims that have not been concluded in fact
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but are left to be resurrected in a new suit" does not constitute a final judgment
allowing appellate review as of right); CPC Int'l, Inc. v. Hartford Accident &
Indem. Co., 316 N.J. Super. 351, 366 (App. Div. 1998) (finding a dismissal of a
claim without prejudice is not a means "to foist jurisdiction [over an
interlocutory order] upon this court"). Nonetheless, because defendant does not
argue plaintiff improperly filed a direct appeal from an interlocutory order, and
the parties have fully argued the merits, we grant plaintiff leave to appeal nunc
pro tunc, and, for the reasons stated, we reverse the trial court's May 10 and June
21, 2019 orders and remand for reinstatement of plaintiff's complaint.
Reversed and remanded for further proceedings consistent with this
opinion. We do not retain jurisdiction.
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