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All Way Towing, LLC v. Bucks County International, Inc.

Superior Court of New Jersey, Appellate Division

November 14, 2017, Argued; January 9, 2018, Decided

DOCKET NO. A-4825-15T2

Opinion

 [*567]  [**97]  The opinion of the court was delivered by

FISHER, P.J.A.D.

Plaintiffs All The Way Towing, LLC, and Chayim Goodman, appeal the dismissal  [**98]  of their complaint, which contained, among others, a claim that defendant Bucks County International, Inc., breached a contract to manufacture and sell to plaintiffs a custom-built tow truck, and a Consumer Fraud Act (CFA)1 claim against both Bucks and defendant Dynamic Towing Equipment and Manufacturing, Inc. After discovery was completed, defendants successfully [***2]  moved for summary judgment on all counts. Because the judge applied incorrect legal principles to these claims and failed to view the evidence in the light most favorable to plaintiffs, we reverse.

] In examining the summary judgment under review, we apply the same Brill standard2 that bound the trial judge. Townsend v. Pierre, 221 N.J. 36, 59, 110 A.3d 52 (2015); W.J.A. v. D.A., 210 N.J. 229, 237, 43 A.3d 1148 (2012). This standard requires that we  [*568]  examine the record in the light most favorable to plaintiffs, the opponents of the successful summary judgment motion. Brill, 142 N.J. at 540, 666 A.2d 146. Following a brief discussion of the operative facts in Section I, we separately discuss in Sections II and III the dismissal of the breach of contract and CFA claims, respectively, and, in Section IV, we summarize our disposition of this appeal.

We start by recognizing that, after extensive discussions, Bucks entered into a contract on February 3, 2011, that called for its manufacture and sale of a tow truck, with particular specifications, deliverable to plaintiff by April 15, 2011. It is undisputed the vehicle was not delivered by that date.3

In fact, the first attempt at delivery occurred months later, sometime in October 2011.4 At that time, the tow truck's forks did not move correctly; other significant problems were identified [***3]  as well. Two more attempts at delivery later occurred; on those occasions, the towing function was not operational and the truck spewed hydraulic fluid. The fourth attempt at delivery appears to have occurred in November 2011. At that time, metal fell out from beneath the truck, and the wheel lift failed to close properly. Plaintiffs found the situation "hopeless" and believed Bucks would never be able to deliver a properly functioning tow truck. Plaintiffs rejected delivery and demanded return of their $10,000 deposit. The deposit was not returned, and this suit was later commenced.

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452 N.J. Super. 565 *; 178 A.3d 97 **; 2018 N.J. Super. LEXIS 3 ***; 94 U.C.C. Rep. Serv. 2d (Callaghan) 782; 2018 WL 333483

ALL THE WAY TOWING, LLC, AND CHAYIM GOODMAN, PLAINTIFFS-APPELLANTS, v. BUCKS COUNTY INTERNATIONAL, INC., AND DYNAMIC TOWING EQUIPMENT AND MANUFACTURING, INC., DEFENDANTS-RESPONDENTS.

Subsequent History:  [***1] Approved for Publication January 9, 2018.

Certification granted by, in part All the Way Towing, LLC v. Bucks Cty. Int'l, Inc., 233 N.J. 323, 184 A.3d 921, 2018 N.J. LEXIS 576 (May 1, 2018)

Certification granted by, in part All the Way Towing, LLC v. Bucks Cty. Int'l, Inc., 233 N.J. 304, 184 A.3d 910, 2018 N.J. LEXIS 606 (May 1, 2018)

Affirmed in part and remanded in part by All Way Towing, LLC v. Bucks Cty. Int'l, Inc., 2019 N.J. LEXIS 109 (N.J., Jan. 24, 2019)

Prior History: On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1865-12.

CORE TERMS

tow truck, delivery, merchandise, plaintiffs', summary judgment, custom-built, tow, truck

Civil Procedure, Appeals, Summary Judgment Review, Standards of Review, Commercial Law (UCC), Sales (Article 2), Subject Matter, Definitions, Goods