ALEX PEREZ VS. SUSAN ADLER, ESQ. (L-8488-11, 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NOT FOR PUBLICATION WITHOUT THE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-4103-14T4
ALEX PEREZ and CATHY PEREZ,
Plaintiffs-Appellants/
Cross-Respondents,
v.
SUSAN ADLER, ESQ., and
SUSAN ADLER – ATTORNEY AT LAW,
Defendants,
and
TESSER & COHEN, GARY STRONG,
ESQ., and STEPHEN WINKLES, ESQ.,
Defendants-Respondents/
Cross-Appellants,
and
PORCELLO ENGINEERING, INC.,
FRED PORCELLO, and GARY MOORE –
ATTORNEY AT LAW,
Defendants-Respondents.
_____________________________________________________
Argued September 19, 2017 – Decided October 17, 2017
Before Judges Yannotti, Leone and Mawla.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Docket No. L-
8488-11.
Nancy C. Ferro argued the cause for appellants
(Ferro & Ferro, attorneys; Ivan Raevski, on
the briefs).
Shaji M. Eapen argued the cause for
respondents/cross-appellants Tesser & Cohen,
Gary Strong, Esq., and Stephen Winkles, Esq.
(Morgan Melhuish Abrutyn, attorneys; Mr.
Eapen, on the brief).
Craig J. Compoli, Jr., and James P. McBarron
argued the cause for respondents Porcello
Engineering, Inc. and Fred Porcello (O'Toole
Scrivo Fernandez Weiner Van Lieu, LLC, and
Hardin, Kundla, McKeon & Poletto, PC,
attorneys; Mr. McBarron, on the brief).
Diana C. Manning argued the cause for
respondents Gary Moore, Esq. and Gary Moore –
Attorney at Law (Bressler, Amery & Ross,
attorneys; Mark M. Tallmadge and Risa D. Rich,
on the brief).
PER CURIAM
Plaintiffs Alex Perez and Cathy Perez appeal from various
orders entered by the Law Division in this action, which granted
summary judgment to defendants Porcello Engineering, Inc. and Fred
Porcello (collectively, Porcello); Tesser & Cohen, Gary Strong,
and Stephen Winkles (collectively, Tesser & Cohen), and Gary Moore,
Esq. and Gary Moore – Attorney at Law (collectively, Gary Moore).
Plaintiffs also appeal from an order entered on April 10, 2015,
which denied their motion for reconsideration of the earlier
2 A-4103-14T4
orders. Tesser & Cohen cross-appeal from part of the April 10,
2015 order. For the reasons that follow, we affirm the orders
challenged by plaintiff and dismiss Tesser & Cohen's cross-appeal.
I.
In February 2007, plaintiffs filed an action in the Law
Division against Professionally Green, LLC (Professionally Green),
Swim-Well Pools, Inc. (Swim-Well), Weissman Engineering Co.
(Weissman), VCA Sons, Inc., t/a Freedom Fence, Inc. (VCA), and
certain individuals associated with these entities. Plaintiffs'
claims arose from the installation of an in-ground swimming pool
and related work at plaintiffs' residence in Franklin Lakes.
According to the complaint, plaintiffs retained Weissman to
prepare engineering plans for the pool, and they hired the other
defendants to install the pool and perform related work. In the
initial complaint, plaintiffs asserted claims of misrepresentation
under the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -204, breach
of contract, breach of warranties, and negligence.
Attorney Susan Adler filed the complaint on plaintiffs'
behalf. Adler represented plaintiffs for almost two years, but
plaintiffs became dissatisfied with the manner in which she was
handling the case. Plaintiffs discharged Adler, and in December
2008, Tesser & Cohen assumed responsibility for representing
plaintiffs in the lawsuit.
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At the suggestion of an attorney in the Tesser & Cohen firm,
plaintiffs retained Porcello as their engineering expert. Porcello
thereafter prepared an expert report, which identified certain
defects in Weissman's engineering plans and the work performed by
Swim-Well and the other defendants. Porcello estimated that the
cost to repair and remediate the deficient work was $107,131.79.
In the report, Porcello identified nineteen documents that he had
relied upon in preparing the report, which included a survey
prepared by Juan C. Almonte.
Based on the findings in Porcello's report, Tesser & Cohen
filed a motion to amend the complaint to add additional claims
under the CFA, specifically violations of certain regulations
adopted pursuant to the CFA with regard to home improvement
practices. See N.J.A.C. 13:45A-16.1 to -16.2. Among other things,
plaintiffs claimed that Swim-Well and Professionally Green
violated the regulations by failing to include starting and
completion dates in their respective contracts. The trial court
granted the motion.
In June 2009, Tesser & Cohen filed a motion on plaintiffs'
behalf, seeking summary judgment on plaintiffs' CFA claims. Swim-
Well filed a cross-motion for partial summary judgment. The trial
court granted partial summary judgment in favor of plaintiffs and
against Swim-Well and Professionally Green with regard to the
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failure to include starting and completion dates in their
respective contracts, but found that these were only technical
violations of the CFA.
In addition, the court denied plaintiffs' motion for partial
summary judgment on the issue of whether they had sustained an
ascertainable loss under the CFA. The court determined that a jury
should resolve this issue. In addition, the court granted Swim-
Well's motion for partial summary judgment on other alleged
regulatory violations.
Because plaintiffs had not paid all of their fees, Tesser &
Cohen filed a motion to be relieved as their attorneys. In August
2009, the court granted the motion. Plaintiffs then retained Moore
as their attorney. Plaintiffs' claims against all defendants other
than Swim-Well and Weissman were resolved.
In October and November 2009, the court conducted a trial of
plaintiffs' claims against Swim-Well and Weissman. At the close
of plaintiffs' proofs, the judge granted Swim-Well's motion for
involuntary dismissal of plaintiffs' CFA claims pursuant to Rule
4:37-2(b). The judge found that plaintiffs had not presented
sufficient evidence to allow a jury to find that they sustained
an ascertainable loss due to the failure to include starting and
completion dates in the contracts.
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At the conclusion of the evidentiary portion of the trial,
plaintiffs' negligence claims against Swim-Well and Weissman were
submitted to the jury, which returned a verdict of no cause of
action on those claims. The trial court later denied plaintiffs'
motion for attorney's fees under the CFA, finding that plaintiffs
were not entitled to such fees because they had not sustained an
ascertainable loss as a result of the regulatory violation.
Plaintiffs appealed from the denial of their motion for
attorney's fees. We reversed the trial court's order, reinstated
the claim, and remanded the matter to the trial court for further
proceedings. Perez v. Professionally Green, LLC, No. A-2850-09
(App. Div. Oct. 13, 2011) (slip op. at 12).
The Supreme Court later granted Swim-Well's petition for
certification, Perez v. Professionally Green, LLC, 209 N.J. 99(2012), and reversed our judgment, Perez v. Professionally Green,
LLC, 215 N.J. 388, 408 (2013). The Court held that plaintiffs
could not recover attorney's fees under the CFA because they did
not have a bona fide claim of an ascertainable loss. Ibid.In October 2011, plaintiffs filed their initial complaint in
this matter, naming Adler, Tesser & Cohen, and Porcello as
defendants. In June 2013, plaintiff filed an amended complaint
adding Moore as a defendant. In the amended complaint, plaintiffs
asserted claims of negligence, professional malpractice, breach
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of fiduciary duty, and breach of contract. Porcello filed a
counterclaim against plaintiffs for breach of contract, seeking
payment of its expert fees, costs, and interest.
In support of the claims against Tesser & Cohen and Moore,
plaintiffs submitted an expert report dated April 1, 2014, from
attorney Jeffrey E. Strauss.1 Plaintiffs also submitted an expert
report dated April 4, 2014, from architect Peter Wasem in support
of their claims against Porcello.
In September 2014, Porcello filed a motion for summary
judgment on plaintiffs' claims of professional negligence and its
counterclaim. The judge heard oral argument on the motions and
thereafter entered an order dated November 7, 2014, granting
summary judgment in favor of Porcello on plaintiffs' claims because
Wasem's report was an inadmissible net opinion. The judge also
granted summary judgment to Porcello on its counterclaim.
Thereafter, Tesser & Cohen and Moore filed motions for summary
judgment on the claims asserted against them. The judge heard oral
argument and on January 28, 2015, entered orders granting the
motions. The judge determined that Strauss's report on Tesser &
Cohen's alleged legal negligence failed as a matter of law because
1
In his report, Strauss stated that Adler did not deviate from
any accepted standards of legal practice. It appears, therefore,
that plaintiffs did not pursue their claims against Adler.
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Strauss was not qualified to render an opinion on proximate cause
and his opinion on that issue was based on Wasem's inadmissible
net opinion. The judge also determined that Strauss's report was
insufficient to support the legal malpractice claims against
Moore.
Plaintiffs then filed a motion seeking reconsideration of the
orders entered on November 7, 2014, and January 28, 2015. Tesser
& Cohen filed a cross-motion seeking reconsideration of the court's
January 28, 2015 order on the ground that the judge erred by
finding that Strauss's report on the firm's alleged negligence was
not a net opinion. The judge entered orders dated April 10, 2015,
denying plaintiff's motion and Tesser & Cohen's cross-motion.
Plaintiffs' appeal and Tesser & Cohen's cross-appeal followed.
II.
We turn first to plaintiffs' contention that the trial court
erred by granting summary judgment in favor of Porcello. We review
the grant of summary judgment "in accordance with the same standard
as the motion judge." Globe Motor Co. v. Igdalev, 225 N.J. 469,
479 (2016) (quoting Bhagat v. Bhagat, 217 N.J. 22, 38 (2014)).
Therefore, we must determine "if the pleadings, depositions,
answers to interrogatories and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact challenged and that the moving party is entitled
8 A-4103-14T4
to a judgment as a matter of law." R. 4:46-2(c); Brill v. Guardian
Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
In their complaint, plaintiffs alleged that in the report
submitted in support of the claims in the underlying action,
Porcello failed to prepare an "appropriate and complete record"
and did not set forth the "full amount of damages" that plaintiffs
had sustained due to the alleged negligence, breach of contract,
and CFA violations of the named defendants. Plaintiffs alleged
that if Porcello had prepared an appropriate expert report, they
would not have settled any of their claims. They also alleged that
they would have succeeded on their claims at trial.
In support of these allegations, plaintiffs relied upon
Wasem's expert report. In that report, Wasem stated that Porcello
had "omitted important facts that could lead an impartial jury to
come to a different conclusion and award lesser damages to
[plaintiffs], therefore leaving [plaintiffs] without the necessary
resources to reverse the damages caused by defendants."
Wasem cited what he believed were deficiencies in the Porcello
report. He wrote that Porcello had failed to: (1) point to a
manufacturer's installation instruction, (2) cite the New Jersey
Administrative Code section governing the practice of licensed
engineers, (3) cite the New Jersey Department of Environmental
Protection's "Best Practices Manual," (4) discover that a storm
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water mitigation system was not required for the project, and (5)
point out other deficiencies in the project and damages.
In granting summary judgment to Porcello, the motion judge
determined that "Wasem's report constitutes his own personal view
and is, thus, inadmissible as a net opinion." The judge noted that
Wasem had not identified the standard of care applicable to the
Porcello defendants as an engineering expert in the underlying
action. Wasem also did not cite any sources even hinting at such
a standard. The judge found that without expert testimony,
plaintiffs' claims against Porcello failed as a matter of law.
On appeal, plaintiffs contend the judge erred in finding that
Wasem's report was an inadmissible net opinion. Plaintiffs assert
that Wasem is an expert with a degree in architecture and
engineering design. According to plaintiffs, Wasem relied on
statutes, rules, regulations, laws, treatises, and factual data
in rendering the opinions in his report.
It is undisputed that plaintiffs required expert testimony
to establish the standard of care applicable to their claims of
professional malpractice against Porcello. Indeed, it is well
established that in a negligence action, when a jury is not capable
of providing the required standard of care, the plaintiff must
present expert testimony on the subject. Davis v. Brickman
10 A-4103-14T4
Landscaping, Ltd., 219 N.J. 395, 407 (2014) (citing Giantonnio v.
Taccard, 291 N.J. Super. 31, 43 (App. Div. 1996)).
Expert testimony must be provided by an individual who is
qualified "by knowledge, skill, experience, training, or
education" to offer a "scientific, technical, or . . . specialized"
opinion that will assist the trier of fact "to understand the
evidence or to determine a fact in issue[.]" N.J.R.E. 702.
Furthermore, the opinion must be based on facts or data "reasonably
relied upon by experts in the particular field in forming opinions
or inferences upon the subject[.]" N.J.R.E. 703.
An expert must offer more than "a mere net opinion." Pomerantz
Paper Corp. v. New Comm. Corp., 207 N.J. 344, 372 (2011) (citing
Polzo v. Cnty. of Essex, 196 N.J. 569, 583 (2008); Buckelew v.
Grossbard, 87 N.J. 512, 524 (1981)). "[A]n expert's bare opinion
that has no support in factual evidence or similar data is a mere
net opinion which is not admissible and may not be considered."
Ibid. (citing Polzo, supra, 196 N.J. at 583; Buckelew, supra, 87
N.J. at 524). The expert must provide the "why and wherefore" that
supports his or her opinion, "rather than a mere conclusion."
Polzo, supra, 196 N.J. at 583 (quoting State v. Townsend, 186 N.J.
473, 494 (2006)).
An expert's opinion also must have objective support and the
opinion may not be based on a standard that is personal. Pomerantz,
11 A-4103-14T4
supra, 207 N.J. at 373 (citing Taylor v. DeLosso, 319 N.J. Super.
174, 180 (App. Div. 1999)). Thus, the expert must offer evidential
support "establishing the existence of a standard of care, other
than standards that [are] apparently personal to" the expert.
Davis, supra, 219 N.J. at 413 (quoting Kaplan v. Skoloff & Wolfe,
P.C., 339 N.J. Super. 97, 103 (App. Div. 2001)).
In this case, the motion judge correctly found that Wasem's
report was an impermissible net opinion because he failed to
identify the standard of care applicable to Porcello in his role
as engineering expert in the underlying action. In his report,
Wasem merely made his own assessment of damages, which he
attributed to the alleged negligence and breach of contract of the
defendants in the underlying action.
Wasem concluded that Porcello had understated the amount of
damages by a factor of about two-and-one-half to three. He cited
some source materials, such as a manufacturer's installation
instructions, which Porcello should have referenced in his report.
Wasem did not, however, identify any recognized standard of care
applicable to the measure of damages by an engineering expert.
As such, Wasem's report merely represented a difference of
opinion as to the calculation of plaintiff's damages, rather than
a deviation from an accepted practice of engineering. Moreover,
in his report, Wasem never asserted that Porcello's work in
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connection with the underlying action fell below accepted
standards, within a reasonable degree of professional certainty,
or words to that effect.
We therefore conclude that the motion judge correctly
determined that Wasem's report was an inadmissible net opinion.
Because plaintiffs' claims against Porcello lacked the required
expert support, the judge correctly decided that Porcello was
entitled to judgment as a matter of law.
III.
Next, plaintiffs argue that the motion judge erred by granting
summary judgment in favor of Tesser & Cohen. Therefore, we must
determine whether the judge correctly determined that there was
no genuine issue of material fact and Tesser & Cohen was entitled
to judgment as a matter of law. R. 4:46-2(c); Brill, supra, 142
N.J. at 540.
Here, plaintiffs alleged that Tesser & Cohen was negligent
in its handling of the underlying action. In support of their
claims, plaintiffs submitted a legal malpractice report from
Strauss, in which Strauss opined that:
Tesser & Cohen failed to plead, disclose and
protect the CFA claims that would have
provided an opportunity [for plaintiffs] to
obtain the attorney fees and treble damages
from the CFA defendants and they failed to
engage and retain an expert to analyze and
opine on the CFA issues concerning lack of
13 A-4103-14T4
permits, improper and absent written and
signed change orders and improper slope/pitch
of the landscaped deck.
Strauss stated that generally accepted legal standards
required Tesser & Cohen to amend the pleadings in the underlying
action to include all CFA claims against all defendants. In
addition, Strauss stated that Tesser & Cohen failed to engage an
expert to analyze and render opinions on the CFA issues, and that
the firm was required to obtain "an informed and complete opinion,
such as [the opinion] provided by" Wasem.
As we noted previously, the motion judge granted summary
judgment to Tesser & Cohen. The judge found that Strauss had
provided sufficient support for his opinion that the firm deviated
from accepted standards of legal practice by failing to amend the
complaint to include all CFA claims. The judge concluded, however,
that the claims against Tesser & Cohen failed as a matter of law
because Strauss's opinion on proximate cause was a net opinion.
On appeal, plaintiffs argue that the judge erred by dismissing
their claims against Tesser & Cohen. Plaintiffs argue that Strauss
did not rely solely upon Wasem's report. They contend Strauss
based his report on his review of all of the records and files in
the underlying matter. Thus, plaintiffs assert, Strauss' report
has adequate factual support.
14 A-4103-14T4
In a legal malpractice action, the plaintiff must establish:
(1) the existence of an attorney-client relationship, which
creates a duty of care that the attorney owes to the client; (2)
breach of that duty; (3) the breach was a proximate cause of any
damages; and (4) the damages sustained. Jerista v. Murray, 185
N.J. 175, 190-91 (2005) (citing McGrogan v. Till, 167 N.J. 414,
425 (2001)); Sommers v. McKinley, 287 N.J. Super. 1, 9-10 (App.
Div. 1996).
Because the average juror does not know the duties that an
attorney owes his or her client, in a legal malpractice action,
expert testimony is required to define the duty owed and explain
the breach. Id. at 10 (citing Butler v. Acme Markets Inc., 89 N.J.
270, 283 (1982)). Furthermore, when the issue of proximate cause
is "beyond the 'common knowledge of lay persons,'" expert testimony
is required to establish that the attorney's malpractice was a
proximate cause of damage to the plaintiff. Froom v. Perel, 377
N.J. Super. 298, 318 (App. Div.) (quoting Kelly v. Berlin, 300
N.J. Super. 256, 265–66 (App. Div. 1997)), certif. denied, 185
N.J. 267 (2005).
Here, the motion judge correctly found that plaintiffs had
not submitted sufficient competent evidence to establish that
Tesser & Cohen's alleged negligence was a proximate cause of their
alleged damages. As we have explained, an expert may not present
15 A-4103-14T4
a "mere net opinion." Pomerantz, supra, 207 N.J. at 372. In his
report, Strauss stated that Tesser & Cohen was negligent because
the firm failed to retain an expert to analyze and opine on the
CFA claims with regard to the alleged lack of permits, change
orders, and slope/pitch of the landscaped deck. Strauss opined
that Tesser & Cohen's negligence was a proximate cause of
plaintiffs' damages.
In support of his opinion on proximate cause, Strauss relied
upon Wasem's report, which was a net opinion, thereby also
rendering Strauss' report an inadmissible net opinion. See Borough
of Saddle River v. 66 East Allendale, LLC, 216 N.J. 115, 144-45
(2011) (noting that an appraiser's opinion was a net opinion
because the appraiser relied upon the net opinion of another
expert). Therefore, the motion judge correctly found that
plaintiffs failed to present sufficient evidence to support their
claims against Tesser & Cohen, and the firm was entitled to
judgment as a matter of law.
In its cross-appeal, Tesser & Cohen argues that the judge
erred by finding that Strauss had provided sufficient support for
his opinion that the firm deviated from accepted standards of
legal practice by failing to amend the complaint in the underlying
action to assert all relevant CFA claims. The firm argues that the
16 A-4103-14T4
judge erroneously found that by referencing his trial experience,
Strauss had provided sufficient support to his opinion.
Because we have concluded that the judge correctly granted
summary judgment to Tesser & Cohen, we need not address this
alternative basis for affirming the trial court's order. We
therefore dismiss the cross-appeal.
IV.
Plaintiffs also argue that the motion judge erred by granting
Moore's summary judgment motion. Again, we must determine whether
the motion judge correctly found that there was no genuine issue
of material fact and Moore was entitled to judgment as a matter
of law. R. 4:46-2(c); Brill, supra, 142 N.J. at 540.
Here, plaintiffs claimed that Moore was negligent in his
handling of the trial in the underlying matter. In their amended
complaint, plaintiffs alleged that Moore: (1) was not qualified
to handle the matter; (2) never represented homeowners in a civil
action against contractors; (3) did not adequately prepare for
trial; (4) failed to prepare fact and expert witnesses to testify
at trial; (5) was incompetent and unable to handle the underlying
action; and (6) failed to exercise reasonable care, skill, and
learning in representing them.
In his report, however, Strauss only opined that Moore
departed from generally accepted standards of legal practice by
17 A-4103-14T4
failing to call Almonte as a witness at the trial of the underlying
case. According to Strauss, Almonte was a critical witness. The
record shows that Moore called Porcello as a witness, and he relied
upon Almonte's survey of plaintiffs' property. Strauss asserted
that if Almonte had been called to testify, plaintiffs' claims
against Swim-Well and Weissman would have succeeded.
The motion judge found that plaintiffs' claim against Moore
was, in essence, a challenge to Moore's trial strategy and
judgment. The judge determined that the claim failed because
Moore's decision not to call Almonte as a witness was not "a breach
of any identifiable standard of care." The judge therefore found
that plaintiffs' claim against Moore failed as a matter of law,
and granted Moore's motion for summary judgment.
On appeal, plaintiffs argue that Strauss's report and opinion
provided sufficient support for their claim against Moore. They
argue that Moore's decision not to call Almonte as a witness was
legal malpractice, not valid trial strategy.
We are convinced that the motion judge erred by suggesting
that Moore's decision not to call Almonte as a witness could not
be challenged since it was apparently part of Moore's trial
strategy. Nevertheless, we conclude that plaintiffs did not
present sufficient evidence to show that Moore's decision to rely
18 A-4103-14T4
upon Fred Porcello's testimony constituted a deviation from
accepted legal standards.
At the trial of the underlying action, Porcello testified
that he relied upon Almonte's survey, other documents, and his own
observations in forming his opinions about the alleged negligent
grading of the site and the construction of the pool and patio.
Defendants moved to bar Porcello's testimony because it was based
in part on Almonte's findings, which defendants argued were
inadmissible hearsay.
The trial judge conducted a hearing pursuant to N.J.R.E. 104,
and Porcello testified. The judge ruled that he would instruct the
jury that Porcello's testimony about Almonte's survey,
specifically, the measurements of the heights, bounds, and
distances, was not independently admissible to prove those facts,
but an expert could rely upon those facts in forming his opinions
and conclusions. Thus, the record in the underlying action shows
that the judge permitted Porcello to testify as to opinions he
reached based on Almonte's survey.
Plaintiffs' argument that Moore deviated from accepted
standards of legal practice by failing to call Almonte rests on
the assumption that their claims would have been, as Strauss
opined, "substantially enhanced" if Almonte had testified as to
his own survey. However, Strauss's assertion that if Almonte had
19 A-4103-14T4
testified, plaintiffs would have had a better chance of prevailing
on their claims against Swim-Well and Weissman, is a "bald
assertion," that "is equivalent to a net opinion." Kaplan, supra,
339 N.J. Super. at 102, 104 (quoting Taylor, supra, 319 N.J. Super.
at 180).
As stated previously, a plaintiff asserting a legal
malpractice claim must show that he or she suffered damages as a
proximate cause of the attorney's breach of a duty of care. 2175
Lemoine Ave. Corp. v. Finco, Inc., 272 N.J. Super. 478, 487–88
(App. Div.), certif. denied, 137 N.J. 311 (1994). "Mere conjecture,
surmise or suspicion" is not sufficient to establish proximate
cause. Ibid. Plaintiffs' claim regarding Moore is based entirely
on conjecture and speculation. We therefore conclude that the
motion judge did not err by granting Moore's motion for summary
judgment.
V.
Plaintiffs also argue the trial court's orders granting
summary judgment to Porcello, Tesser & Cohen, and Moore deprived
them of their fundamental constitutional right to a jury trial.
They contend that the court's application of the net opinion rule
wrongfully and unconstitutionally denied them of their fundamental
right to a jury trial. We are convinced that this argument lacks
sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).
20 A-4103-14T4
We note, however, that the constitutional right to a trial
is not absolute, and a party's failure to present sufficient
evidence warranting submission of a case to the jury is "the
functional equivalent of a waiver of the right to have a jury
decide the case." Brill, supra, 142 N.J. at 537 (citing Bussell
v. DeWalt Prods. Corp., 259 N.J. Super. 499, 512 (App. Div.),
certif. denied, 133 N.J. 431 (1993)). Therefore, the application
of the Brill summary judgment standard does not "'denigrate the
role of the jury.'" Ibid. (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 2513, 91 L. Ed. 2d 202,
216 (1986)). Accordingly, we reject plaintiffs' contention that
they were denied their constitutional right to a jury trial on
their claims.
In addition, plaintiffs argue if the matter is remanded to
the trial court, the case should be assigned to a different judge.
In view of our decision affirming the trial court's orders granting
summary judgment to defendants, this issue is moot.
The orders on appeal are affirmed, and the cross-appeal is
dismissed.
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