NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2650-24
AHIKAM BENNAIM,
Plaintiff-Appellant,
v.
JDNB CAPITAL HOLDINGS, LLC, KARA A. KACZYNSKI, ESQ. and MCNALLY, YAROS, KACZYNSKI & LIME, LLC,
Defendants-Respondents. _______________________________
Submitted March 17, 2026 – Decided April 7, 2026
Before Judges Susswein and Chase.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1476-21.
Helmer, Conley & Kasselman, PA, and Law Office of John E. Shields, Jr., LLC, attorneys for appellant (Patricia B. Quelch, of counsel and on the briefs; John E. Shields, Jr., on the briefs).
Lewis Brisbois Bisgaard & Smith LLP, attorneys for respondents Kara A. Kaczynski, Esq. and McNally, Yaros, Kaczynski & Lime, LLC (Meredith Kaplan Stoma, of counsel and on the brief; Anthony A. Doss, on the brief).
PER CURIAM
In this appeal of a dispute concerning the administration of a commercial
loan, plaintiff Ahikam BenNaim challenges a March 20, 2025 Law Division
order granting summary judgment to defendants Kara A. Kaczynski, Esq. and
McNally, Yaros, Kaczynski & Lime, LLC ("MYKL"). We affirm.
I.
We summarize the facts from the motion record in a light most favorable
to plaintiff as the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142
N.J. 520, 540 (1995); see also R. 4:46-2(c). Plaintiff is a businessman and real
estate investor. In September 2020, plaintiff was approached by members of
JDNB Capital Holdings, LLC ("JDNB") regarding a short-term loan opportunity
whereby he would loan $200,000 to JDNB. JDNB provided plaintiff with a one
page "Bridge Loan Package," which stated that the requested funds would be
held in the escrow account of their counsel, Kara Kaczynski, Esq., and her law
firm, MYKL, and returned to him with interest within six months once JDNB
was "capitalized" by a senior lender. The Bridge Loan Package identified
Kaczynski and her firm as JDNB's "legal team."
A-2650-24 2 After plaintiff and JDNB had negotiated the agreement, MYKL was
retained by JDNB to prepare two notes, each for $100,000, in connection with
the agreement. Kaczynski was not aware of the Bridge Loan Package
solicitation document, denied authorizing JDNB to list her as their legal
representative on that document, and denied knowing that JDNB represented to
plaintiff that his funds would be held in her escrow account.
After executing a non-disclosure agreement, plaintiff was provided with
two draft promissory notes which included language that the loans would be
transferred to MYKL's trust account. Plaintiff requested various modifications
to the note, and JDNB obliged without objection. Plaintiff then participated in
a telephone call with JDNB member Nicholas Webb and Kaczynski. Plaintiff
testified at deposition that he was almost one-hundred percent certain that the
call included discussions of the representation made in the Bridge Loan
Package—that the funds would be wired to Kaczynski's escrow account. In
contrast, Kaczynski testified to having advised her client "[she] was not going
to have any discussions with [plaintiff] concerning the terms" of the notes that
were already agreed on and that plaintiff should have an attorney present if he
wished to discuss terms.
A-2650-24 3 Plaintiff, contrary to defendants' suggestions, chose not to enlist the
services of counsel to review the documents on his behalf. Furthermore,
plaintiff testified that he conducted no due diligence as to JDNB's background—
including, judgment searches, credit checks, and references.
After plaintiff signed the notes, he wired $200,000 to MYKL's trust
account. Unequivocally, the notes as executed by the parties neither reference
escrow nor require funds to be dispersed incrementally or with plaintiff 's
approval or knowledge.
Once the notes reached maturity, plaintiff communicated directly with
members of JDNB but was not repaid any portion of the loan. Plaintiff then sent
an email to Kaczynski seeking confirmation that the $200,000 was still in
escrow, but Kaczynski did not respond. Eventually, plaintiff sent an email to
Kaczynski, stating he had tried to contact her over 100 times and requested the
name of the managing partner. Kaczynski replied that she was the managing
member but declined to answer whether she still had the funds, citing client
confidentiality. After litigation commenced, Kaczynski acknowledged that she
had transferred the entire $200,000 to JDNB shortly after receiving the funds,
without seeking plaintiff's authorization or notifying him of the transfer.
A-2650-24 4 Plaintiff filed suit against JDNB in July 2021. JDNB was served but did
not answer, and default was entered. Plaintiff then amended his complaint,
adding Kaczynski and MYKL, alleging professional negligence and breach of
duties as an escrow holder. Final judgment by default was entered against JDNB
for $284,000 plus court costs.
In the interim, Kaczynski and MYKL filed a declaratory judgment action
against Preferred Professional Insurance Company ("Preferred") and Coverys
Specialty Insurance Company ("Coverys"), alleging wrongful denial of
coverage for plaintiff's complaint. The declaratory judgment action was
consolidated with the professional negligence action for discovery purposes in
January 2024. Preferred and Coverys moved for summary judgment and
Kaczynski and MYKL cross-moved for summary judgment. Summary
judgment was granted in favor of Kaczynski and MYKL and against Preferred
and Coverys on the declaratory judgment complaint for coverage.
Following the conclusion of discovery, Kaczynski and MYKL moved for
summary judgment against plaintiff. On March 20, 2025, the court granted
summary judgment in favor of defendants.
This appeal follows.
A-2650-24 5 II.
We review de novo the trial court's summary judgment decision,
employing the same Brill standard that governed the trial court. See In re Est.
of Jones, 259 N.J. 584, 594 (2025). A court must grant summary judgment "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 to a judgment or
order as a matter of law." R. 4:46-2(c). However, "[a] trial court's interpretation
of the law and the legal consequences that flow from established facts are not
entitled to any special deference." Rowe v. Bell & Gossett Co., 239 N.J. 531,
552 (2019) (alteration in original) (quoting Manalapan Realty, L.P. v. Twp.
Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
III.
A.
We first address plaintiff's claim that there were material facts in dispute
precluding the court from granting summary judgment. We are not persuaded.
"To decide whether a genuine issue of material fact exists, the trial court
must 'draw[] all legitimate inferences from the facts in favor of the non-moving
party.'" Friedman v. Martinez, 242 N.J. 450, 472 (2020) (alteration in original)
A-2650-24 6 (quoting Globe Motor Co. v. Igdalev, 225 N.J. 469, 480 (2016)). "The court's
function is not 'to weigh the evidence and determine the truth of the matter but
to determine whether there is a genuine issue for trial.'" Rios v. Meda Pharm.,
Inc., 247 N.J. 8, 13 (2021) (quoting Brill, 142 N.J. at 540). Accordingly, this
standard requires the Court to conduct its analysis in light of the elements and
evidentiary standard governing the cause of action. Bhagat v. Bhagat, 217 N.J.
22, 38 (2014).
In order to hold defendants liable, plaintiff must prove: "(1) the existence
of an attorney-client relationship creating a duty of care upon the attorney; (2)
the breach of that duty; and (3) proximate causation." Conklin v. Hannoch
Weisman, 145 N.J. 395, 416 (1996) (quoting Lovett v. Estate of Lovett, 250 N.J.
Super. 79, 87 (Ch. Div. 1991)); see also Cortez v. Gindhart, 435 N.J. Super. 589,
598 (App. Div. 2014) (internal citations omitted) (including actual damages as
a final element of the cause of action).
Plaintiff stresses that where credibility is at issue, summary judgment is
inappropriate. In re Estate of DeFrank, 433 N.J. Super. 258, 266 (App. Div.
2013) (internal citations omitted). He contends the trial court's determination
that Kaczynski had no knowledge of the "Bridge Loan Package" rested upon the
court finding her more credible than plaintiff. To bolster his assertion, plaintiff
A-2650-24 7 argues defendants must have had knowledge of the "Bridge Loan Package"
given Kaczynski: (1) testified to have been "representing [JDNB] in various
real estate transactions at the time that [plaintiff] was solicited to invest money";
(2) confirmed the properties listed on the "Bridge Loan Package" "look[ed]
familiar"; and (3) despite disputing the discussion as plaintiff recalls them,
confirmed she was on the telephone conference between Nicholas Webb and
plaintiff. Accordingly, plaintiff ultimately asserts that, given Kaczynski's
admissions in her deposition, the court must have determined her testimony was
more credible than plaintiff's conflicting testimony.
That assertion is unavailing as the court's oral decision makes no reference
to credibility. Instead, the court granted summary because plaintiff failed to
prove: (1) that the defendants were aware of the representations JDNB made to
plaintiff; (2) that there was an escrow agreement between the parties; and (3)
that defendants owed a legal duty to plaintiff.
Plaintiff's testimony that he was almost certain they talked about the
money going to her escrow account does not change this analysis because the
notes specifically refer to a trust account, not an escrow account. Moreover,
Kaczynski's sworn deposition testimony belies plaintiff's assertion that she
either had knowledge of the "Bridge Loan Package" or an agreement to hold the
A-2650-24 8 funds in escrow. Accordingly, without material facts in dispute that would assist
plaintiff in proving his cause of action, the court acted properly in determining
that, as a matter of law, summary judgment was appropriate.
B.
We next address, and reject, plaintiff's claim that Kaczynski and MYKL
owed a duty to him with respect to his funds. In this regard, our Supreme Court's
recent decision in Christakos v. Boyadjis, 262 N.J. 447 (2026), is instructive. In
Christakos, the Court formally adopted the standard set forth in Section 51 of
the Restatement (Third) of the Law Governing Lawyers, to determine when an
attorney owes a duty to a non-client. Id. at 458. This standard had been relied
on in prior cases. See e.g., Petrillo v. Bachenberg, 139 N.J. 472, 483-84 (1995);
Pivnick v. Beck, 165 N.J. 670, 671 (2000); Banco Popular N. Am. v. Gandi, 184
N.J. 161, 179-80 (2005).
Pursuant to Restatement (Third) of the Law Governing Lawyers, § 51:
For the purposes of liability under § 48, 1 a lawyer owes a duty of care within the meaning of § 52 in each of the following circumstances:
(1) to a prospective client . . . ;
(2) to a nonclient when and to the extent that:
1 § 48 regards professional negligence. A-2650-24 9 (a) the lawyer or (with the lawyer's acquiescence) the lawyer's client invites the nonclient to rely on the lawyer's opinion or provision of other legal services, and the nonclient so relies; and
(b) the nonclient is not, under applicable tort law, too remote from the lawyer to be entitled to protection;
(3) to a nonclient when and to the extent that:
(a) the lawyer knows that a client intends as one of the primary objectives of the representation that the lawyer's services benefit the nonclient;
(b) such a duty would not significantly impair the lawyer's performance of obligations to the client;
(c) the absence of such a duty would make enforcement of those obligations to the client unlikely; and
(4) to a nonclient when and to the extent that:
(a) the lawyer's client is a trustee, guardian, executor, or fiduciary acting primarily to perform similar functions for the nonclient;
(b) the lawyer knows that appropriate action by the lawyer is necessary with respect to a matter within the scope of the representation to prevent or rectify the breach of a fiduciary duty owed by the client to the nonclient, where (i) the breach is a crime or fraud or (ii) the lawyer has assisted or is assisting the breach;
(c) the nonclient is not reasonably able to protect its rights; and
A-2650-24 10 (d) such a duty would not significantly impair the performance of the lawyer's obligations to the clients.
[Restatement (Third), § 51.]
Our Court has interpreted and applied this language to hold: (1) attorneys
may owe a duty of care to nonclients when the attorney knew, or should have
known, that the nonclient will rely on the attorney's representations, Petrillo,
139 N.J. at 483-84; and (2) courts must evaluate whether the attorney invited
the nonclients reliance—the invitation to rely is imperative, Banco Popular, 184
N.J. at 181; see also Restatement (Third) of the Law Governing Lawyers, § 51
cmt. f (expressing the importance of inviting reliance).
Plaintiff's argument is rooted in his subjective understanding that his loan
was going into an escrow account; thus, he asserts that even though he was
advised to get his own attorney, he assumed Kaczynski was to represent his
interests. Generally, a non-client cannot show that the adverse party's attorney
owed them a duty of care. See LoBiondo v. Schwartz, 199 N.J. 62, 101 (2009).
Thus, "the grounds on which any plaintiff may pursue a malpractice claim
against an attorney with whom there was no attorney-client relationship are
exceedingly narrow." Green v. Morgan Props., 215 N.J. 431, 458 (2013); see
also Restatement (Third) of the Law Governing Lawyers, § 51 cmt. b (discussing
A-2650-24 11 the importance of limiting an attorney's duty of care to nonclients because
"[m]aking lawyers liable to nonclients . . . could tend to discourage lawyers from
vigorous representation").
Plaintiff seeks to analogize his facts with In re Hollendonner, 102 N.J. 21
(1985). In Hollendonner, an attorney misappropriated escrow funds for personal
use. Id. at 22-23. Accordingly, the Court held that: (1) escrow holders act as
an agent for both parties, Id. at 26-27 (first citing Mathis v. Yarak, 71 N.J. Super.
234, 238 (App. Div. 1961) and then citing Cooper v. Bergton, 18 N.J. Super.
272 (App. Div. 1952)); and (2) as an escrow agent, the attorney owed a fiduciary
duty to both their client and the nonclient, id. at 27. Further, the Hollendonner
court expressed:
. . . it is a matter of elementary law that when two parties to a transaction select the attorney of one of them to act as the depository of funds relevant to that transaction, the attorney receives the deposit as the agent or trustee for both parties. The parallel between escrow funds and client trust funds is obvious. So akin is the one to the other that henceforth an attorney found to have knowingly misused escrow funds will confront the disbarment rule . . . .
[Id. at 28-29 (emphasis added) (internal citations omitted).]
A-2650-24 12 Thus, plaintiff argues that, regarding attorney trust accounts and escrow
accounts, this is a distinction without a difference—Hollendonner treats the two
as the same.
The trial court determined that Hollendonner was not applicable to
plaintiff's matter because Meisels v. Fox Rothschild LLP, 240 N.J. 286 (2020),
was more squarely on point. In Meisels, a nonclient sued Fox Rothschild for
conversion and breach of fiduciary duty after the firm accepted funds into its
trust account as an intermediary. Id. at 291-92. When Fox Rothschild received
the funds there were no instructions, limitations, or conditions regarding
distribution; accordingly, the firm distributed the funds as dire cted by its client.
Id. at 292. Ultimately, the Court held that Fox Rothchild owed no duty to the
nonclient because the firm was neither aware of the nonclient nor their claim to
the funds. Ibid. Additionally, the Court highlighted that attorneys owe a duty
to individuals who they know, or should know, will rely on them in a
professional capacity—notably, this requires considerations of fairness. Id. at
300-01 (citing Petrillo, 139 N.J. at 484). Lastly, the Meisels Court distinguished
Hollendonner by noting, unlike the attorney in Hollendonner, Fox Rothschild
never became an escrow agent; thus, "Meisels [was] mistaken to rely on case
A-2650-24 13 law addressing the duties of escrow agents when the firm never undertook such
a role." Id. at 301.
We agree that Hollendonner does not apply, because plaintiff makes the
same mistake the Meisels Court pointed out—trying to show a duty of care
existed by citing case law regarding escrow agreements. See Meisels, 240 N.J.
at 301. It is uncontested that the notes referred to the money going to MYKL's
trust account, and that no escrow agreement existed. Further, although JDNB
misrepresented, via the Bridge Loan Agreement, that the funds would be held in
escrow, Kaczynski's sworn deposition testimony indicates she had no
knowledge of, nor consented to, the representations contained within the Bridge
Loan Package.
The plain terms of the note give no indication that the money would be
held or untouched, in escrow. The first paragraphs expressly provide for
"payment out of other assets that you may own." Insofar as plaintiff
contemplated that payment from other assets might be necessary, this is an
implicit acknowledgment that the money would not remain untouched in an
escrow account. Furthermore, even insofar as JDNB induced plaintiff's reliance,
nothing in the record indicates that Kaczynski or MYKL played any role in that
inducement. Instead, defendants: (1) drafted notes in accordance with the terms
A-2650-24 14 provided by their client; (2) provided plaintiff an opportunity to review and
request changes to the notes; (3) encouraged plaintiff to seek counsel to review
the notes—which plaintiff chose not to do; and (4) disbursed the funds, because
there was no disbursement limiting language in the notes, in accordance with
the instructions from the client.
Even assuming arguendo that a dispute of material fact existed pursuant
to the conversations during the conference on the note, where plaintiff testified
that he is "almost a hundred percent" sure the parties discussed escrow when
speaking about the terms of the note, plaintiff could still not prevail as a matter
of law. Indeed, if plaintiff's version of the facts were true, he may have a
stronger argument regarding duty; however, plaintiff would still be required to
prove breach, proximate cause, and actual damages. See Conklin, 145 N.J. at
416; Cortez, 435 N.J. Super. at 598. As such, and considering the plaintiff's
burden of proof, mere disagreement—without tangible evidence—as to the
contents of the conversation is insufficient to create a material fact in dispute to
defeat summary judgment.
Under the above standards, plaintiff—a nonclient—cannot establish that
defendants owed him a duty. There was neither an escrow agreement between
the parties nor are there facts or evidence that indicate defendants induced
A-2650-24 15 plaintiff's reliance. Unfortunately, plaintiff made a bad business deal; the
negative ramifications of which were compounded by his refusal to enlist
independent counsel. Certainly, plaintiff has a legitimate claim against JDNB;
however, he cannot extend that cause of action against an attorney who, without
language limiting their actions, drafted notes and disbursed the funds
accordingly pursuant to the client's instructions.
Plaintiff's assertion that Rule 1:21-6 does not require attorneys to maintain
separate trust accounts and escrow accounts is entirely unpersuasive. Although
this Rule does not mandate attorneys to maintain both trust accounts and escrow
accounts, plaintiff's contention fails because the Rule clearly distinguishes
between trust accounts and fiduciary accounts—i.e., escrow accounts. See R.
1:21-6(a)(1) (requiring attorneys to maintain trust accounts "separate from any
business and personal accounts and from any fiduciary accounts that the attorney
may maintain as executor, guardian, trustee, or receiver, or in any other fiduciary
capacity"); see also In re Cozzarelli, 225 N.J. 16 (2016) (analyzing escrow
accounts as fiduciary accounts).
C.
Plaintiff's final claim is that the notes were ambiguous and therefore must
be construed against the drafter. We disagree.
A-2650-24 16 Generally, ambiguities are construed against the drafter because the
drafter is presumed to have protected its own interests and "chose the words that
may be susceptible to different meanings." Kieffer v. Best Buy, 205 N.J. 213,
224 (2011). Notably, this standard has been used in documents pertaining to
lenders and borrowers. See In re Miller's Estate, 90 N.J. 210, 221 (1982).
An ambiguity exists where there are two reasonable alternative
interpretations. M.J. Paquet, Inc. v. N.J. Dept. of Transp., 171 N.J. 378, 396
(2002). "'[W]hether a contract provision is clear or ambiguous is a question of
law[,]'" Twp. of White v. Castle Ridge Development Corp., 419 N.J. Super. 68,
74 (App. Div. 2011) (quoting Grow Co. v. Chokshi, 403 N.J. Super. 443, 476
(App. Div. 2008)); however, the resolution of ambiguities is a question of fact.
Michaels v. Brookchester, Inc., 26 N.J. 379, 388 (1958). Nevertheless, even
where an ambiguity exists, a jury does not necessarily need to resolve the
ambiguity unless it creates a genuine issue of material fact. Teamsters Indus.
Emps. Welfare Fund v. Rolls-Royce Motor Cars, Inc., 989 F.2d 132, 137 (3d
Cir. 1993). Rather, summary judgment is precluded when the "scope of the . . .
agreement cannot be determined by solely relying upon the parties ' writing,
which may be plausibly interpreted in different ways[.]" Grow Co., 403 N.J.
Super. at 476.
A-2650-24 17 Despite plaintiff's contention that confusion arose because the notes
contain no explanation regarding disbursement of the funds, the notes are not
ambiguous. The notes clearly articulate that Borrower, JDNB, received a "loan"
from plaintiff. In light of the plain meaning of the term "loan," and without an
escrow agreement, there is no indication in the notes to imply that the money
was to be held, untouched, in the trust account. Further, there are no terms of
the note which would lead to an interpretation that Kaczynski was required to
inform plaintiff when the funds were being disbursed. Plaintiff had the
opportunity to suggest amendments to the notes and defendants conformed with
each of his suggestions. To the extent plaintiff felt the notes were ambiguous,
or required language conditioning disbursement, he not only had the opportunity
to include that language, but further, he expressly declined the opportunity to
have counsel present. Thus, the terms of these notes are neither ambiguous nor
subject to multiple or competing interpretations.
To the extent we have not addressed any of the remaining arguments of
plaintiffs, we conclude they lack sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-2650-24 18