A Franklin Lakes, New Jersey couple, sued their pool contractor over a faulty installation and being completed behind schedule. The contractor had failed to note on the contract a start and finish date, in violation of the Consumer Fraud Act.

The Plaintiffs claimed that the lack of the start and finish date caused an "ascertainable loss" by preventing them from enjoying the use of their new swimming pool. At the trial level, the Judge granted a partial motion for summary judgment and dismissed the start-and-end-dates claim, based on lack of evidence that the technical violation caused an ascertainable loss. The Plaintiffs made a post-trial motion for attorneys' fees under the Consumer Fraud statute. The lower court denied their motion, and held that a plaintiff may not recover fees when the defendant wins at the end of the trial for failure to prove an ascertainable loss.

The Plaintiffs appealed the lower court decision, and pointed to the fact that the Consumer Fraud Act is meant to protect consumers by enabling them to pursue fraud actions without taking on the costs of litigation. The Appellate Court opined that they do not require a Consumer Fraud Plaintiff to "overcome the double hurdle of surviving both a summary judgment motion and a motion for involuntary dismissal to demonstrate a bona fide claim of ascertainable loss."

If you have any questions regarding a commercial or consumer fraud matter, call Mark & Galusha, attorneys who specialize in commercial law. Contact us at 908-626-1001 or visit our website at markgalushalaw.com.