90 Hackensack Ave, LLC v. Aponte Service Station, LLC

• Court: New Jersey Superior Court Appellate Division
• Decided: March 3, 2026
• Docket: A-0466-24
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0466-24

90 HACKENSACK AVENUE, LLC,1

Plaintiff,

v.

APONTE SERVICE STATION, LLC and CARLOS APONTE, Individually,

Defendants, ____________________________

APONTE SERVICE STATION, LLC,

Third-Party Plaintiff/ Respondent,

SCANDER, LLC and BASSEM SCANDER, Individually,

1 On October 11, 2021, a stipulation of dismissal with prejudice was entered as to all claims between plaintiff 90 Hackensack Avenue, LLC and defendants Aponte Service Station, LLC and Carlos Aponte, individually, and third-party defendants Aero Ambulance, Inc. and David Gato, individually. Third-Party Defendants/ Appellants,

and

AERO AMBULANCE, INC., DAVID GATO, Individually,

Third-Party Defendants. ____________________________

Argued December 16, 2025 – Decided March 3, 2026

Before Judges Chase and Augostini.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-7638-20.

William M. Goldberg argued the cause for appellants, Scander, LLC and Bassem Scander.

Alan I. Kraminsky argued the cause for respondent, (Kraminsky Law, LLC, attorneys; Alan I. Kraminsky and Justyna Eisenbardt, on the brief).

PER CURIAM

Following a three-day trial, the jury found third-party defendants Scander

LLC and Bassem Scander (Scander) (collectively defendants) liable for breach

of contract and the implied covenants of good faith and fair dealing and

fraudulent misrepresentation concerning the sale of a gas station. The jury

awarded compensatory and punitive damages. Defendants appeal from the

A-0466-24 2 jury's unanimous verdict in favor of third-party plaintiff Carlos Aponte and the

September 11, 2024 order of final judgment. We affirm.

I.

In 2015, Scander purchased a gas station located at 90 Hackensack

Avenue in Hackensack. Scander, an absentee owner, operated the business until

he sold it in September 2017.

The Ruby Point of Sale System (Ruby System) recorded all gas

transactions occurring at the gas station. It then generated receipts documenting

the financial information for the gas station, including: (a) the total number of

gallons of gas sold by the gas station, both on a monthly and yearly basis; (b)

the business's operating expenses for the year; and (c) the net profit of the

business over the course of the year.

In 2017, Scander decided to sell the gas station, and retained Brian Elkin,

a broker, to help him. Scander gave Elkin the gas station's Ruby System

information, and Elkin used this information to prepare a fact sheet for

prospective buyers. Scander's initial asking price was $285,000.

In May 2017, Aponte expressed interest in buying the gas station. On

June 27, 2024, Aponte emailed an offer of $210,000 to Elkin, stating, "I am

ready to make the purchase as soon as I can match the receipts with the supposed

A-0466-24 3 revenues." However, before entering the Asset Purchase Agreement

(Agreement), Aponte conducted his due diligence over approximately three

months. As part of his due diligence, Aponte requested that Scander provide the

invoices from the station's fuel suppliers.

Scander provided Aponte with a 2016 computer-generated spreadsheet

summarizing the fuel sales. Scander, a software developer, decided to "automate

the process" and created a software application to summarize the data regarding

sales from the station's pumps. Scander explained that this application

"aggregate[d] all the totals" of sales and invoices for "convenience" purposes

"in addition to" the Ruby System's data. Even though Scander provided Aponte

with these spreadsheets, he testified that the program he created was "absolutely

not" reliable. Scander testified that on June 10, 2024, Aponte "took possession

of all of the Ruby receipts for the years 2013 through . . . May of 2017, as well

as the delivery slips for that same time period, [and the] inspection reports,

monthly and annual, for that same time period."

During this due diligence period, Aponte "press[ed]" Scander for the

current information about the station's business. On July 29, 2017, Scander

provided Aponte with documents purporting to be invoices from P&J Fuel

supplier for May and June 2017. One of P&J's owners, Jasbir S. Chandi,

A-0466-24 4 testified at trial, confirming that the invoices given to Aponte were not authentic

P&J invoices. After Chandi testified, Scander admitted that the P&J invoices

he provided were computer-generated and not the original invoices.

Aponte testified that these invoices induced him to buy the business

because, after reviewing them, he "became excited about purchasing a

successful business." Scander testified that he warned Aponte that the

computer-generated P&J invoices were "unreliable" and that the program had

"bugs." Contrary to Scander's assertion, Aponte testified that no such warnings

were given verbally or in writing. Likewise, Elkin testified that no such

warnings had been given during the meetings he attended with Aponte and

Scander.

As the final step in his due diligence efforts, Aponte demanded to see the

daily operations of the gas station for seven days. Scander refused to

accommodate the seven-day request but agreed to have Aponte come to the

station for two nights to see how "we close the station at night and verify the

numbers at the end of the day." Ultimately, the parties agreed on three nights at

that station so Aponte could "look at the receipts and the volume of diesel sold,"

because Aponte's main concern at this point was determining the amount of

diesel sales.

A-0466-24 5 After his site visit, on August 20, 2017, Aponte sent an email to Scander

stating he was glad "to see the current sales for the past few days" and "now

knows its current state." Aponte further stated that he "would like to ignore last

year[']s 2016 summary since it[']s too far off." Believing the business was still

profitable, Aponte wanted to move forward with the purchase. However, based

on his review, he reduced his offer to $205,000.

On August 25, 2017, Scander sent an email to Aponte's attorney stating

that the computer-generated software would be included in the Agreement;

however, in an "as-is-condition," and seller "assumes no responsibility for any

software bugs contained within." Three days later, the parties signed the

Agreement.

On September 15, 2017, the parties executed the final Agreement for a

sale price of $225,000. The business later ultimately failed due to poor sales.

In April 2021, Aponte sued Scander LLC and Scander, individually, alleging, in

part, breach of contract and the covenant of good faith and fair dealing and

fraudulent inducement.

On August 5, 2024, the jury trial began. On August 7, 2024, the jury

returned a verdict of $225,000 in compensatory damages. The next day, the jury

awarded Aponte $75,000 in punitive damages. Defendants filed a motion for a

A-0466-24 6 judgment notwithstanding the verdict (JNOV). On August 30, 2024, after oral

argument, the court denied the JNOV motion. On September 11, 2024, an order

of final judgment was entered in Aponte's favor totaling $332,400.86 which

included the jury’s award of $225,000 in compensatory damages, $75,000 in

punitive damages and $32,400.84 in prejudgment interest through September 4,

2024.

Defendants argue on appeal that the jury verdict should be set aside

because the jury disregarded key evidence, and that no reasonable jury could

have concluded that Aponte relied on the fraudulent P&J invoices in tendering

an offer to purchase the gas station. Defendants further contend that the final

judgment should be vacated because Aponte failed to prove a causal connection

between defendants' conduct and any ascertainable loss.

II.

"The jury is the preeminent factfinder in our system of justice, and the

rendering of a jury verdict is entitled to the greatest deference." State v.

Lodzinski, 249 N.J. 116, 143 (2021) (citing Risko v. Thompson Muller Auto.

Grp., Inc., 206 N.J. 506, 521 (2011)). Our Rules of Court provide for those

instances where "[j]ury verdicts, like the decisions of judges and every decision

involving human judgment, are susceptible to error." Ibid.

A-0466-24 7 Under both a motion for JNOV pursuant to Rule 4:40-2 or a motion for a

new trial pursuant to Rule 4:49-1, we apply the same standard that governs the

trial courts. Conforti v. Cnty. of Ocean, 255 N.J. 142, 162 (2023); Risko, 206

N.J. at 522. Under Rule 4:40-2, we consider "whether the evidence presented at

trial 'together with the legitimate inferences therefrom, could sustain a judgment

in . . . favor of the party that prevailed at trial.'" Conforti, 255 N.J. at 162

(quoting Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 415 (1997)

(omission in original) (quoting Dolson v. Anastasia, 55 N.J. 2 (1969) (internal

quotation marks omitted))).

Likewise, under Rule 4:49-1(a), the jury's verdict will only be disturbed

if "it clearly and convincingly appears that there was a miscarriage of justice

under the law." R. 4:49-1(a). A jury verdict should only be set aside if the

outcome is "shocking to the conscience of the court." Risko, 206 N.J. at 521

(quoting Kulbacki v. Sobchinsky, 38 N.J. 435, 456 (1962)). A miscarriage of

justice occurs where there is a "manifest lack of inherently credible evidence to

support the finding, obvious overlooking or undervaluation of crucial evidence,

[or] a clearly unjust result." Ibid. (alteration in original) (quoting Lindenmuth

v. Holden, 296 N.J. Super. 42, 48 (App. Div. 1996) (quoting Baxter v. Fairmont

Food Co., 74 N.J. 588, 599 (1977))) (internal quotation marks omitted).

A-0466-24 8 A.

Scander contends that no reasonable jury could have concluded that

Aponte "reasonably relied" on the computer-generated P&J invoices because he

knew the computer-generated information was "unreliable." Scander asserts the

parties' emails between August 14 and August 20, 2017, demonstrate that

Aponte did not rely on the computer-generated invoices because he knew that

they were "too far off" compared to the Ruby system receipts. Furthermore,

Aponte's three-day visit at the gas station to review the computer, gave him a

picture of the "current state of the gas station," which informed his revised bid.

Scander asserts this evidence contravened Aponte's trial testimony and

speculates that the jury ignored this evidence. We are unpersuaded by these

arguments.

Aponte testified that his main concern was the lack of information

regarding the gas station's diesel sales. That testimony was corroborated by his

August 14, 2017 email to Scander. According to Aponte, Scander stated that

the diesel sales receipts were not on the Ruby System but rather only on the

computer-generated documentation. Before visiting the gas station in August,

Scander provided Aponte with the computer-generated invoices, which were

invalid and unreliable.

A-0466-24 9 Although Scander claimed he warned Aponte that the computer-generated

information was unreliable, there was no corroboration of this claim either in

writing or testimony. Indeed, Elkin, Scander's witness, refuted Scander's claim

and testified that he was not present during a conversation where Scander

allegedly warned Aponte about issues with the software application. Scander

testified that he created the software application for his own convenience,

particularly to automate the house accounts for tracking and payment purposes.

However, he did not explain why the fuel invoices from P&J needed to be

processed through the software application.

According to Scander's computer-generated spreadsheet and fact sheet, in

2016, the gas station sold 1,206,000 gallons and more than 100,000 gallons per

month. Based on the documentation provided by Scander, Aponte concluded

that in 2017 the total fuel sales were closer to 84,000 gallons per month,

inclusive of the 32,000 gallons per month of diesel fuel sales. Therefore, relying

on more current information, including the computer-generated diesel sales,

Aponte revised his offer.

There was sufficient evidence to support the jury's verdict in Aponte's

favor. The jury was free to make credibility determinations and by its verdict,

appears to have credited Aponte's testimony, finding that he relied upon the

A-0466-24 10 computer-generated P&J fuel invoices and was never told by Scander that those

invoices were unreliable. As the trial court determined in denying Scander's

JNOV motion, a reasonable jury "could reach the verdict they reached in this

case." We agree that in these circumstances there was no "miscarriage of justice

under the law" T.L. v. Goldberg, 238 N.J. 218, 230-31 (2019), and the jury's

verdict did not involve a "manifest lack of inherently credible evidence to

support [its] finding." Risko, 206 N.J. at 521 (citations omitted).

B.

Defendants next contend that we must vacate the jury's verdict as it relates

to damages because the record is "barren" of any evidence of quantifiable loss,

whether "measured by a reduction in sales volume, or loss of value sustained by

the gas station." We disagree.

"An ascertainable loss is a loss that is 'quantifiable or measurable'; it is

not 'hypothetical or illusory.'" Lee v. Carter-Reed Co., L.L.C., 203 N.J. 496,

522 (2010) (quoting Thiedemann v. Mercedes-Benz USA, LLC, 183 N.J. 234,

248 (2005)). A plaintiff can prove an ascertainable loss by demonstrating either

an out-of-pocket loss or a deprivation of the benefit of one's bargain. Ibid.

The jury was properly instructed on damages and "asked [to determine]

what amount of damages would fairly and reasonably compensate [Aponte] as a

A-0466-24 11 result of [defendants'] actions or inactions." The jury awarded Aponte $225,000

in compensatory damages—the purchase price for the gas station. As the trial

court correctly noted, "the proof of damages came from [Aponte's] testimony."

Summarizing his testimony, the trial court found that Aponte paid $225,000 for

the gas station, and "it wasn't worth anything, because what [Scander] gave

[him] were fraudulent documents."

Scander also contends that Aponte's failure to produce expert testimony,

bank records, tax filings, or other financial statements to support his damages'

claim warrant vacatur of the damages award. As the trial court again correctly

noted, no expert is required "when a plaintiff seeks to be made whole." Aponte

did not make a claim for lost profits or damages resulting from Scander's fraud.

His complaint sought reimbursement of the purchase price as "fair and

reasonable" compensation. The jury was free to decide whether Aponte

sustained an ascertainable loss after considering the evidence and testimony.

We are satisfied the substantial, credible evidence supported the jury's damages

award.

Defendants' remaining arguments are without merit sufficient to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

A-0466-24 12