NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1141-24
AMERICAN VOYAGER NJ, INC.,
Plaintiff-Appellant,
v.
BAEKELAND RENTALS, INC.,
Defendant-Respondent. ______________________________
Submitted October 15, 2025 – Decided October 30, 2025
Before Judges Susswein and Chase.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-2405-24.
Garry Pogil, attorney for appellant.
Mandelbaum Barrett PC, attorneys for respondent (Lawrence C. Weiner, on the brief.)
PER CURIAM
Plaintiff American Voyager NJ, Inc. appeals from two Law Division
orders: an October 1, 2024 order granting defendant Baekeland Rentals, Inc. 's motion to dismiss, and a November 22, 2024 order denying plaintiff's motion to
amend its complaint. We affirm.
I.
Plaintiff operates a loading and container transport business requiring
ground sturdy enough for heavy machinery. In fall 2022, plaintiff sought to
lease property from defendant, who owns roughly nine acres on Baekeland
Avenue in Middlesex Borough.
Defendant inspected plaintiff's prior site to understand the operation and
stated it would remove debris and prepare the land to support heavy equipment.
Defendant also obtained a certificate of occupancy ("CO") for plaintiff.
Plaintiff toured the property in November 2022, observing ongoing
construction and noting the site was not ready for heavy machinery.
Nevertheless, both parties signed a lease days later. The lease stipulated that
plaintiff accepted the premises "as is, where is, and with all faults," and released
defendant from any duty to refurbish or improve the property. Plaintiff assumed
responsibility for all necessary licenses and permits. The lease also released
defendant from liability for business interruptions and included an implied
warranty of habitability.
A-1141-24 2 On a subsequent inspection, plaintiff observed five acres "destroyed" and
covered with millings of unknown chemical composition, which raised ground
levels unevenly. Plaintiff alleged these conditions made the land unsuitable for
its operations and accused defendant of misrepresentation. To demonstrate the
problem, plaintiff drove a truck with a trailer onto the property, showing that the
softened ground could not support heavy machinery. Defendant then offered
plaintiff six months' free rent for three acres and agreed to level that portion for
heavy machinery. Plaintiff accepted.
At year's end, defendant reported issues with the CO and relayed to
plaintiff that a local zoning officer threatened to close the business, believing
the land was being used as a junkyard. Defendant told plaintiff to stop
operations and to vacate by the last day of the year. Plaintiff demanded that
defendant resolve the CO issue.
Although plaintiff stayed at the property, it failed to pay rent in February
and March 2023, accumulating $167,716.12 in arrears. As a result, defendant
initiated an eviction proceeding to dispossess plaintiff.
In April, plaintiff attempted to ameliorate the softness of the ground by
bringing ten dump trucks full of stone onto the property. Its intention was to
utilize this stone to harden the ground of the loading dock by compressing the
A-1141-24 3 millings that had been on the property so that the ground could support heavy
machinery.
On the day of the trial, the parties, represented by counsel, settled via
consent judgment. Plaintiff agreed: (1) to an entry of a judgment of possession;
(2) to pay all of the back rent and monthly rent on the first of each month moving
forward; (3) that if payments were not made, defendant could seek a warrant of
removal; and (4) to waive any claims of latent defects or misrepresentation for
conditions that existed up until May 17, 2023.
Three months later, plaintiff reported flooding from a neighboring
property, noted the stone was shifting, and blamed defendant's millings for
exacerbating the issue. Plaintiff consulted a specialist who explained that water
runoff from higher adjacent land would wash away the property. Plaintiff also
claimed that the uncompacted millings created both a dust hazard and adverse
health effects for employees.
Plaintiff vacated the property in February 2024 and sued defendant,
alleging fraud/misrepresentation, violation of N.J.S.A. §56:8-2, breach of
contract, and constructive eviction. Defendant moved to dismiss the complaint
for failure to state a claim.
A-1141-24 4 On October 1, 2024, the trial court dismissed the complaint, finding it
barred by both the lease and the consent judgment. The court stated that only a
latent defect discovered after the consent judgment could permit the claim to
proceed.
Two weeks later, plaintiff filed a proposed amended complaint. The
amended complaint expanded upon the flooding issue that allegedly arose on the
land and further allegations that defendant's use of millings to level the ground
created an environmental hazard.
Defendant opposed, arguing the amended complaint was substantially
similar to the original complaint and should be barred. On November 22, 2024,
the court denied the motion to amend the complaint, determining that res
judicata barred relitigating matters resolved by the consent judgment.
This appeal followed.
II.
A.
Initially, plaintiff argues the court erred in granting the motion to dismiss
because it relied on documents outside of the complaint, thereby improperly
converting the motion to dismiss to a summary judgment motion. We disagree.
A-1141-24 5 Appellate review of a trial court's ruling on a motion to dismiss is de novo.
Kennedy v. Weichert Co., 257 N.J. 290, 302 (2024) (citing W.S. v. Hildreth,
252 N.J. 506, 518 (2023)). Since our "review is plenary[,] . . . we owe no
deference to the trial judge's conclusions." State v. Cherry Hill Mitsubishi, 439
N.J. Super. 462, 467 (App. Div. 2015) (citation omitted).
Generally, when the trial court has considered matters outside the
pleadings, the motion to dismiss for failure to state a claim becomes one for
summary judgment. See R. 4:6-2. Our Supreme Court has nevertheless stated
that, "[i]n evaluating motions to dismiss, courts consider 'allegations in the
complaint, exhibits attached to the complaint, matters of public record, and
documents that form the basis of a claim.'" Banco Popular N. Am v. Gandi, 184
N.J. 161, 183 (2005) (quoting Lum v. Bank of Am., 361 F.3d 217, 221 n.3 (3d
Cir. 2004)). Thus, in reviewing a motion under Rule 4:6-2(e), a court may
consider documents referred to in the complaint, matters of public record, or
documents explicitly relied on in the complaint, without converting the motion
to dismiss into one for summary judgment. See N.J. Citizen Action, Inc. v. Cnty.
of Bergen, 391 N.J. Super. 596, 605 (App. Div. 2007).
Plaintiff does not specify the documents the court relied on which were
not part of the pleadings. A review of the record reflects the only documents
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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-1141-24
AMERICAN VOYAGER NJ, INC.,
Plaintiff-Appellant,
v.
BAEKELAND RENTALS, INC.,
Defendant-Respondent. ______________________________
Submitted October 15, 2025 – Decided October 30, 2025
Before Judges Susswein and Chase.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-2405-24.
Garry Pogil, attorney for appellant.
Mandelbaum Barrett PC, attorneys for respondent (Lawrence C. Weiner, on the brief.)
PER CURIAM
Plaintiff American Voyager NJ, Inc. appeals from two Law Division
orders: an October 1, 2024 order granting defendant Baekeland Rentals, Inc. 's motion to dismiss, and a November 22, 2024 order denying plaintiff's motion to
amend its complaint. We affirm.
I.
Plaintiff operates a loading and container transport business requiring
ground sturdy enough for heavy machinery. In fall 2022, plaintiff sought to
lease property from defendant, who owns roughly nine acres on Baekeland
Avenue in Middlesex Borough.
Defendant inspected plaintiff's prior site to understand the operation and
stated it would remove debris and prepare the land to support heavy equipment.
Defendant also obtained a certificate of occupancy ("CO") for plaintiff.
Plaintiff toured the property in November 2022, observing ongoing
construction and noting the site was not ready for heavy machinery.
Nevertheless, both parties signed a lease days later. The lease stipulated that
plaintiff accepted the premises "as is, where is, and with all faults," and released
defendant from any duty to refurbish or improve the property. Plaintiff assumed
responsibility for all necessary licenses and permits. The lease also released
defendant from liability for business interruptions and included an implied
warranty of habitability.
A-1141-24 2 On a subsequent inspection, plaintiff observed five acres "destroyed" and
covered with millings of unknown chemical composition, which raised ground
levels unevenly. Plaintiff alleged these conditions made the land unsuitable for
its operations and accused defendant of misrepresentation. To demonstrate the
problem, plaintiff drove a truck with a trailer onto the property, showing that the
softened ground could not support heavy machinery. Defendant then offered
plaintiff six months' free rent for three acres and agreed to level that portion for
heavy machinery. Plaintiff accepted.
At year's end, defendant reported issues with the CO and relayed to
plaintiff that a local zoning officer threatened to close the business, believing
the land was being used as a junkyard. Defendant told plaintiff to stop
operations and to vacate by the last day of the year. Plaintiff demanded that
defendant resolve the CO issue.
Although plaintiff stayed at the property, it failed to pay rent in February
and March 2023, accumulating $167,716.12 in arrears. As a result, defendant
initiated an eviction proceeding to dispossess plaintiff.
In April, plaintiff attempted to ameliorate the softness of the ground by
bringing ten dump trucks full of stone onto the property. Its intention was to
utilize this stone to harden the ground of the loading dock by compressing the
A-1141-24 3 millings that had been on the property so that the ground could support heavy
machinery.
On the day of the trial, the parties, represented by counsel, settled via
consent judgment. Plaintiff agreed: (1) to an entry of a judgment of possession;
(2) to pay all of the back rent and monthly rent on the first of each month moving
forward; (3) that if payments were not made, defendant could seek a warrant of
removal; and (4) to waive any claims of latent defects or misrepresentation for
conditions that existed up until May 17, 2023.
Three months later, plaintiff reported flooding from a neighboring
property, noted the stone was shifting, and blamed defendant's millings for
exacerbating the issue. Plaintiff consulted a specialist who explained that water
runoff from higher adjacent land would wash away the property. Plaintiff also
claimed that the uncompacted millings created both a dust hazard and adverse
health effects for employees.
Plaintiff vacated the property in February 2024 and sued defendant,
alleging fraud/misrepresentation, violation of N.J.S.A. §56:8-2, breach of
contract, and constructive eviction. Defendant moved to dismiss the complaint
for failure to state a claim.
A-1141-24 4 On October 1, 2024, the trial court dismissed the complaint, finding it
barred by both the lease and the consent judgment. The court stated that only a
latent defect discovered after the consent judgment could permit the claim to
proceed.
Two weeks later, plaintiff filed a proposed amended complaint. The
amended complaint expanded upon the flooding issue that allegedly arose on the
land and further allegations that defendant's use of millings to level the ground
created an environmental hazard.
Defendant opposed, arguing the amended complaint was substantially
similar to the original complaint and should be barred. On November 22, 2024,
the court denied the motion to amend the complaint, determining that res
judicata barred relitigating matters resolved by the consent judgment.
This appeal followed.
II.
A.
Initially, plaintiff argues the court erred in granting the motion to dismiss
because it relied on documents outside of the complaint, thereby improperly
converting the motion to dismiss to a summary judgment motion. We disagree.
A-1141-24 5 Appellate review of a trial court's ruling on a motion to dismiss is de novo.
Kennedy v. Weichert Co., 257 N.J. 290, 302 (2024) (citing W.S. v. Hildreth,
252 N.J. 506, 518 (2023)). Since our "review is plenary[,] . . . we owe no
deference to the trial judge's conclusions." State v. Cherry Hill Mitsubishi, 439
N.J. Super. 462, 467 (App. Div. 2015) (citation omitted).
Generally, when the trial court has considered matters outside the
pleadings, the motion to dismiss for failure to state a claim becomes one for
summary judgment. See R. 4:6-2. Our Supreme Court has nevertheless stated
that, "[i]n evaluating motions to dismiss, courts consider 'allegations in the
complaint, exhibits attached to the complaint, matters of public record, and
documents that form the basis of a claim.'" Banco Popular N. Am v. Gandi, 184
N.J. 161, 183 (2005) (quoting Lum v. Bank of Am., 361 F.3d 217, 221 n.3 (3d
Cir. 2004)). Thus, in reviewing a motion under Rule 4:6-2(e), a court may
consider documents referred to in the complaint, matters of public record, or
documents explicitly relied on in the complaint, without converting the motion
to dismiss into one for summary judgment. See N.J. Citizen Action, Inc. v. Cnty.
of Bergen, 391 N.J. Super. 596, 605 (App. Div. 2007).
Plaintiff does not specify the documents the court relied on which were
not part of the pleadings. A review of the record reflects the only documents
A-1141-24 6 considered by the court were the lease and consent judgment. The lease forms
the basis of plaintiff's claims and is referenced in the complaint. The consent
judgment is a publicly available document, and it was appropriate for the court
to consider it without converting the motion to one for summary judgment.
B.
Next, plaintiff asserts the court erred in dismissing the amended complaint
because it alleged facts that occurred after the consent judgment. For example,
plaintiff contends that he was unable to tell that there were problems with
flooding because of the millings until September. Moreover, he asserts that after
the parties entered into the consent judgment, defendant did not take any steps
to correct the CO issue. We are not persuaded.
We review a trial court's grant or denial of a motion to amend a pleading
under an abuse of discretion standard. Kernan v. One Washington Park Urban
Renewal Assocs., 154 N.J. 437, 457 (1998). While motions for leave to amend
pleadings are to be liberally granted, they nonetheless are best left to the sound
discretion of the trial court in light of the factual situation existing at the time
each motion is made. R. 4:9-1; Du-Wel Products v. U.S. Fire Ins., 236 N.J.
Super. 349, 364 (App. Div. 1989). "[C]ourts are free to refuse leave to amend
when the newly asserted claim is not sustainable as a matter of law. In other
A-1141-24 7 words, there is no point to permitting the filing of an amended pleading when a
subsequent motion to dismiss must be granted." Notte v. Merchs. Mut. Ins. Co.,
185 N.J. 490, 501 (2006) (quoting Interchange State Bank v. Rinaldi, 303 N.J.
Super. 239, 256-57 (App. Div. 1997)). This "futility prong analysis" instead
provides that exercise of discretion for motions to amend requires a two-step
process: "whether the non-moving party will be prejudiced, and whether
granting the amendment would nonetheless be futile." Ibid.
A motion to amend is properly denied when the motion's purpose is to re-
litigate an issue that the court has already decided. Alpert, Goldberg, Butler,
Norton & Weiss, P.C. v. Quinn, 410 N.J. Super. 510, 539-40 (App. Div. 2009).
Res judicata also bars the re-litigation of claims that have already been
adjudicated to ensure fairness to defendants and maintain judicial integrity.
Velasquez v. Franz, 123 N.J. 498, 505 (1991). For res judicata to apply, three
elements must be met: "(1) the judgment in the prior action must be valid, final,
and on the merits; (2) the parties in the later action must be identical to or in
privity with those in the prior actions; and (3) the claim in the later action must
grow out of the same transaction or occurrence as the claim in the earlier one. "
Rippon v. Smigel, 449 N.J. Super. 344, 367 (App. Div. 2017). Once there has
been a final judgment on the matter, a party cannot assert an issue that could
A-1141-24 8 have been raised in the first action. Bondi v. Citigroup, Inc., 423 N.J. Super
377, 422 (App. Div. 2011). Importantly, consent judgments are considered final
adjudications on the merits. Joesph L. Muscarelle, Inc. v. State, by Dept. of
Transp., 175 N.J. Super. 384, 394-95 (App. Div. 1980).
Plaintiff fails to demonstrate the court abused its discretion when it denied
the motion for leave to file an amended complaint and dismissed the complaint
with prejudice. Plaintiff does not allege new defects that were not known before
the consent judgement. The amended complaint merely expanded upon known
issues litigated previously and waived as part of the consent judgment.
Therefore, the trial court properly barred further litigation.
To the extent we have not addressed arguments herein, we find them to be
without sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E).
Affirmed.
A-1141-24 9