                                NOT FOR PUBLICATION WITHOUT THE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- 2220-17T4

MARUKA USA, INC.,

         Plaintiff-Respondent,

v.

SPECIALTY LIGHTING
INDUSTRIES, INC.,

         Defendant/Third-Party
         Plaintiff-Appellant/
         Cross-Respondent,

v.

MORI SEIKI USA, INC. d/b/a
DMG/MORI SEIKI USA,
and DMG MORI SEIKI
COMPANY, LTD.,

     Third-Party Defendant-
     Respondent/Cross-Appellant.
______________________________

                   Argued September 25, 2019 – Decided November 4, 2019

                   Before Judges Koblitz, Gooden Brown and Mawla.
            On appeal from an interlocutory order of the Superior
            Court of New Jersey, Law Division, Morris County,
            Docket No. L-2920-13.

            Donald E. Taylor argued the cause for appellant/cross-
            respondent (Wilentz, Goldman & Spitzer PA,
            attorneys; Donald E. Taylor, of counsel and on the
            brief; Robert Selvers and Risa M. Chalfin, on the brief).

            Denis F. Driscoll argued the cause for respondent
            Maruka USA Inc. (Inglesino Webster Wyciskala
            Taylor, LLC, and Pezold Smith Hirschmann &
            Selvaggio, LLC, attorneys; Raymond A. Selvaggio
            (Pezold Smith Hirschmann & Selvaggio, LLC) of the
            New York bar, admitted pro hac vice, Gerard F. Smith,
            Denis F. Driscoll, and Owen T. Weaver, on the brief).

            William K. Pelosi argued the cause for respondent/
            cross-appellant Mori Seiki USA Inc. d/b/a DMG/Mori
            Seiki USA and DMG Mori Seki Company, Ltd.
            (Litchfield Cavo, LLP, attorneys; William K. Pelosi
            and Zachary E. Danner, on the brief).

PER CURIAM

      This is an interlocutory appeal on leave granted arising from a dispute

involving the sale of a lathe.1 We now affirm the December 19, 2017 grant of

summary judgment in favor of plaintiff Maruka USA, Inc. (Maruka) and partial

summary judgment in favor of third-party defendant Mori Seiki USA, Inc. d/b/a



1
  A lathe is "[a] machine on which a piece of wood, metal, or other material is
spun and shaped by a fixed cutting or abrading tool." Webster's II New College
Dictionary 621 (1995).
                                                                        A-2220-17T4
                                       2
DMG/Mori Seiki USA, and DMG Mori Seiki Company, Ltd. (collectively Mori

Seiki).

      Mori Seiki manufactures machine tools, turning centers, and lathes.

Maruka distributes machinery and equipment on behalf of Mori Seiki. Specialty

Lighting manufactures and sells custom lighting systems to commercial and

residential customers. In November 2013, Maruka filed a complaint against

defendant Specialty Lighting Industries, Inc., alleging breach of contract and

conversion and requesting an order directing Specialty Lighting to immediately

return its lathe or pay the full purchase price.

      Specialty Lighting filed its answer, a twelve-count counterclaim, and a

third-party complaint against Mori Seiki. Specialty Lighting's counterclaims

alleged the following counts against Maruka: breach of contract; breach of the

implied covenant of good faith and fair dealing; violations regarding remedies

and warranties under the Uniform Commercial Code (UCC), N.J.S.A. 12A:1-

101 to 12-26; common law fraud; and negligent misrepresentation. It pleaded

the following counts against third-party defendant Mori Seiki: breach of

warranty; negligent design and construction; and conspiracy. Specialty Lighting

also alleged a violation of the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -

198, against both Maruka and Mori Seiki.


                                                                       A-2220-17T4
                                         3
      The motion court granted summary judgment, dismissing Specialty

Lighting's counterclaims against Maruka. The court also denied, in part, Mori

Seiki's motion for summary judgment, leaving intact Specialty Lighting's breach

of warranty claim against Mori Seiki.

     Specialty Lighting appeals, arguing the motion court erred both when

finding the transaction did not involve "merchandise" as defined by the CFA,

and when finding the agreement's statute of limitations barred Specialty

Lighting's breach of warranty claim against Maruka. Mori Seiki cross-appeals,

claiming the court erred in denying summary judgment as to Specialty Lighting's

breach of warranty claim, because Specialty Lighting refused to accept the

replacement lathe, and also erred when finding no warranty existed because the

sales agreement did not apply to Mori Seiki.

      The record reveals the following facts. In late 2009 and 2010, Specialty

Lighting explored doing lathe work in-house, to reduce costs and complete the

work on its own schedule.      James McMillan, the production manager at

Specialty Lighting, considered three different machines before he ultimately

chose one manufactured by Mori Seiki.2         McMillan communicated with a


2
     The machines at issue here are the NL2500SY/700 (NL) and the
NLX2500SY/700 (NLX), computerized lathes that performed milling and
drilling functions.
                                                                       A-2220-17T4
                                        4
Maruka sales engineer and an application engineer to discuss Specialty

Lighting's needs. They suggested that Mori Seiki's NL would fit Specialty

Lighting's requirements. In March 2011, Specialty Lighting accepted Maruka's

proposal for the NL, executed a purchase order for $264,990, and tendered a

deposit in the amount of $52,990.

       One or two days later, McMillan was informed that the NL was

unavailable because Mori Seiki had stopped making the NL series and had

transitioned to the NLX series of machines. The NLX lathes incorporated

changes that NL lathe customers had requested, consumed less power, occupied

less space, and circulated cooling fluid through its casting to promote thermal

stability.

       Maruka issued a proposal to Specialty Lighting to buy the NLX for the

same price as the NL. The sales engineer told McMillan the NLX was an

upgrade over the NL and that features that were optional add-ons for the NL

were standard in the NLX. The sales engineer gave McMillan a brochure that

included information about the NLX. In March 2011, Specialty Lighting signed

a sales agreement for the NLX.

       Maruka invited McMillan to attend "Innovation Days," a three-day event

in Chicago where visitors could observe Mori Seiki products in operation.


                                                                       A-2220-17T4
                                      5
McMillan testified that at the event, Mori Seiki representatives reassured him

the NLX was everything the NL was and more, with improved processing times,

and "[e]verything that was familiar to an NL was going to be the same" on the

NLX.

       McMillan observed the NLX with a gantry loader, an optional lathe

component that helped move parts to and from the cutting chamber of the

machine, allowing for unattended operation. Specialty Lighting cancelled its

order and on June 1, 2011, Maruka submitted a new proposal for a NLX

containing the gantry loader.

       Maruka's proposal contained a section titled "Mori Seiki Machine

Warranty," that provided that "for a period of twenty-four (24) months, from the

date of installation, any new machine tool purchased from Mori Seiki, . . . and

all its parts shall be free from defects in workmanship and materials" when

"under normal use and maintenance."         Under the heading "Liability," the

warranty stated:

            Mori Seiki's and Maruka U.S.A.['s] liability under this
            warranty is limited solely to the replacement or repair,
            at Mori Seiki's sole election, of defective workmanship
            or materials by Mori Seiki or an authorized distributor.
            Mori Seiki will not be liable for any expenses, loss or
            damage whether incidental, consequential or direct in
            connection with the sale or use of or inability to the use
            of the machinery for any purpose. All other warranties,

                                                                         A-2220-17T4
                                        6
             whether expressed or implied, including without
             limitation any implied warrant of merchantability or
             fitness for a particular purpose are hereby disclaim[ed].

The warranty also established a one-year limitation for bringing an action

regarding the warranty and the machine, stating:

             Any legal action to enforce this warranty must be
             commenced no later than one year after the expiration
             of the warranty period set forth in this warranty or one
             year after Mori Seiki Co., Ltd. or its affiliates cease
             efforts to repair the Equipment or replacement part,
             whichever comes later.

      Section five of the terms of the warranty, titled "Limited Warranty;

Disclaimer    of   Warranties;    Limitation    of   Liability;   Pass-Through     of

Manufacturer's Warranties," identified additional limitations on the warranty,

stating:

             This limited warranty is exclusive and in lieu of all
             other warranties, whether express, implied written or
             oral including, but not limited to, any implied
             warranties of merchantability or fitness . . . . No
             representative of seller may alter or amend this limited
             warranty. Seller shall not be liable for any incidental
             or consequential loss, damage or expense arising
             directly or indirectly from installation or use of the
             product or from any breach of warranty; rather, buyer
             and seller agree that the sole and exclusive remedy for
             breach of any warranty concerning the product shall be
             the repair of replacement of defective parts or, at
             seller's option, refund of the purchase price . . . . Buyer
             hereby waives the benefit of any rule that disclaimer of
             warranty shall be construed against the seller and

                                                                           A-2220-17T4
                                         7
            agrees that the foregoing disclaimer in the agreement
            shall be construed liberally in favor of seller.

      Specialty Lighting and Maruka executed a sales agreement dated June 1,

2011, for the NLX with gantry loader reflecting the new total price of $418,950.

Specialty Lighting signed the agreement and paid an additional $30,800 deposit,

leaving a new balance of $335,160.

      The agreement included the terms and conditions detailed on the back of

the sales agreement. Those terms included waivers of other warranties. It

included the language that the machine would be free of defects for one year:

            4. Limited One Year Parts and Service Warranty.
            Provided that the Customer complies with its
            obligations under this Agreement, Seller warrants that
            the Equipment (capital goods excluding tooling and
            parts not manufactured by the manufacturer of the basic
            machine) shall be free of defects in material and
            workmanship at the time of delivery for a period of one
            (1) year from the date the Equipment is installed at the
            Customer's facility . . . . Seller's sole responsibility shall
            be to repair or replace the part found to be defective or,
            at Seller's option, Seller may rescind this Agreement
            and, in such event, Seller's only obligation shall be to
            refund amounts previously paid by Customer pursuant
            to this Agreement . . . .

It further included language, in capital letters, disclaiming warranties:

            5. Disclaimer of Warranties. THE ONE YEAR PARTS
            AND SERVICE WARRANTY PROVIDED FOR IN
            PARAGRAPH 4 IS THE EXCLUSIVE WARRANT
            MADE BY THE SELLER AND THE CUSTOMER

                                                                             A-2220-17T4
                                          8
            HEREBY WAIVES ANY AND ALL OTHER
            WARRANTIES,    EXPRESS,    IMPLIED     OR
            STATUTORY, INCLUDING THE WARRANTIES OF
            MERCHANTABILITY AND FITNESS FOR A
            PARTICULAR PURPOSE AND ALL OTHER
            REMEDIES AND LIABILITIES. THE CUSTOMER
            ACKNOWLEDGES AND AGREES THAT NO
            OTHER REPRESENTATIONS OR WARRANTIES
            WERE MADE OR RELIED UPON BY CUSTOMER
            WITH RESPECT TO THE QUALITY AND
            FUNCTION OF THE GOODS SOLD HEREIN . . . .

The sales agreement additionally included a provision limiting remedies:

            6. Exclusive Remedies and Limitation of Liability.
            Customer expressly agrees that the remedies granted to
            it in Paragraph 4 are Customer's sole and exclusive
            remedies and the total liability of the Seller with respect
            to this Agreement or the Equipment and service
            furnished hereunder, in connection with the
            performance of breach thereof, or from the
            manufacture, sale, delivery, installation, repair or
            technical direction covered by or furnished under this
            Agreement, whether based on agreement, warranty,
            negligence, indemnity, strict liability or otherwise,
            shall not exceed the one year parts and service
            warranty. Seller shall in no event be liable to the
            Customer, any successors in interest, third-parties, or
            any beneficiary or assignee of this Agreement for any
            direct, indirect, special, consequential, incidental or
            indirect damages whether arising out of breach of this
            Agreement, warranty or tort (including negligence,
            failure to warn, or strict liability) or otherwise, or any
            defect in or failure of, or malfunction of the Equipment,
            including but not limited to lost profits or revenues, loss
            of use of Equipment, damage to associated equipment,
            cost of substitute products, facilities, services, or
            downtime costs, lost goodwill, work stoppage, lost

                                                                          A-2220-17T4
                                        9
            material, impairment or loss of other goods, loss by
            reason of shutdown, interruption or non-operation,
            increased expenses of operation, or the costs or claims
            of third parties including customer of Customer.

Specialty Lighting acknowledged it had read and agreed to those provisions by

signing the sales agreement.

      As of December 2017, Mori Seiki's website stated: "With DMG MORI,

you've got the most complete, high-quality line of machine tools on the market.

You also have peace of mind – thanks to our extensive two-year warranty on

non-wear machine components." This two-year warranty was also included in

Mori Seiki's brochure for the NLX.

      In December 2011, the NLX with gantry loader was delivered to Specialty

Lighting. The Maruka application engineer was training a Specialty Lighting

employee on how to use the machine when he discovered an issue with it.

Maruka's service job summary form regarding the training indicated that

"[i]nterference with sub-spindle occurs when standard Mori ID holders are used

for drilling in sub-spindle."

      In its counterstatement of undisputed material facts, Mori Seiki

acknowledged that an interference point in the NL was "slightly more

pronounced on the NLX." Mori Seiki stated the effect of that difference was

that Specialty Lighting "might have [had] to use a slightly longer tool holder"

                                                                       A-2220-17T4
                                     10
for boring bar operations. The application engineer informed Specialty Lighting

of this and "also instructed them as to how the interference could be eliminated

in other operations by rotating the parts so that the area being cut was on the

turret side of the spindle center line."

      In March 2012, Specialty Lighting sent a letter to Maruka and Mori Seiki,

requesting a new machine.        Mori Seiki offered to remove, redesign, and

reengineer the machine Specialty Lighting had.        In April 2012, Specialty

Lighting sent a letter to Mori Seiki rejecting its offer, stating that the NLX it

received had "fatally flawed design problems and [could not] be repaired to

produce the products according to the original design specifications ."

      Mori Seiki disagreed that the original machine was defective but, in July

2012, agreed to replace Specialty Lighting's NLX with another NLX using a

turret with a smaller profile that resulted in less interference (the replacement

NLX). Because the replacement NLX would require some time to design,

produce, and deliver, Mori Seiki gave Specialty Lighting a loaner machine. The

parties executed an agreement to loan a DuraTurn2050MC lathe from August 1,

2012, through December 1, 2012.

      Maruka informed Specialty Lighting that it wanted to install the

replacement NLX at the end of May. However, on May 24, 2013, Specialty


                                                                          A-2220-17T4
                                           11
Lighting informed Maruka it would not allow Maruka to deliver and install the

replacement NLX without confirming that the defects in the replacement NLX

had been properly corrected. Specialty Lighting visited Maruka's facility to

inspect the machine and discovered that the original issue still existed. Specialty

Lighting provided a list of the replacement NLX 's defects to Maruka in July

2013. Specialty Lighting represented that over the next six weeks, Maruka

"continually advised" that it was addressing the list of defective items with Mori

Seiki.     When Specialty Lighting inspected the replacement NLX again at

Maruka's facility in August 2013, however, certain requested design

modifications had still not been made.

         Specialty Lighting asked whether, if it accepted the replacement NLX, it

could also be permitted to keep the loaner machine and the original NLX for the

next six months before fully accepting the replacement NLX, to allow it to revert

to another machine if the replacement NLX was unacceptable.                Maruka

responded by commencing this litigation in November 2013.

         In April 2014, Mori Seiki offered Specialty Lighting another opportunity

to accept the replacement NLX and offered to make the machine available for

inspection and acceptance for a thirty-day period. It advised that if Specialty

Lighting refused delivery, the replacement NLX would be sold.            Specialty


                                                                          A-2220-17T4
                                        12
Lighting rejected the offer, but also objected to Mori Seiki selling the

replacement while litigation was pending.

      Mori Seiki filed a motion for leave to sell the replacement NLX. On June

11, 2014, the motion court ordered that Mori Seiki could sell the replacement

machine, after making it available for sixty days to allow Specialty Lighting to

inspect it. A year later, Specialty Lighting's mechanical expert inspected the

replacement machine and opined that the replacement did not conform to the

parties' contract and "deviated from the [p]roposals provided to Specialty

Lighting."

                                 I. CFA claims.

      Specialty Lighting argues that the motion court erred in dismissing its

CFA claim against Mori Seiki and Maruka and in denying its motion for

reconsideration. When deciding motions for summary judgment, motion courts

"review the competent evidential materials submitted by the parties to identify

whether there are genuine issues of material fact and, if not, whether the moving

party is entitled to summary judgment as a matter of law." Bhagat v. Bhagat,

217 N.J. 22, 38 (2014); R. 4:46-2(c). "An issue of fact is genuine only if,

considering the burden of persuasion at trial, the evidence submitted by the

parties on the motion, together with all legitimate inferences therefrom favoring


                                                                         A-2220-17T4
                                      13
the non-moving party, would require submission of the issue to the trier of fact."

R. 4:46–2(c). "An appellate court reviews an order granting summary judgment

in accordance with the same standard as the motion judge." Bhagat, 217 N.J. at

38.

      The original purpose of the CFA was to "combat 'sharp practices and

dealings' that victimized consumers by luring them into purchases through

fraudulent or deceptive means." Cox v. Sears Roebuck & Co., 138 N.J. 2, 16

(1994) (quoting D'Ercole Sales, Inc. v. Fruehauf Corp., 206 N.J. Super. 11, 23

(App. Div. 1985)). Now, the CFA "protect[s] the public even when a merchant

acts in good faith." D'Ercole Sales, Inc., 206 N.J. Super. at 23.

      The CFA defines "unlawful practice" as:

            The act, use or employment by any person of any
            unconscionable commercial practice, deception, fraud,
            false pretense, false promise, misrepresentation, or the
            knowing, concealment, suppression, or omission of any
            material fact with intent that others rely upon such
            concealment, suppression or omission, in connection
            with the sale or advertisement of any merchandise or
            real estate, or with the subsequent performance of such
            person as aforesaid, whether or not any person has in
            fact been misled, deceived or damaged thereby is
            declared to be an unlawful practice . . . .

            [N.J.S.A. 56:8-2.]




                                                                         A-2220-17T4
                                       14
N.J.S.A. 56:8-1(c) defines "merchandise" to "include any objects, wares, goods,

commodities, services or anything offered, directly or indirectly to the public

for sale."

      The CFA further authorizes a remedy for "[a]ny person who suffers any

ascertainable loss of moneys or property, real or personal, as a result of the use

or employment by another person of any method, act, or practice declared

unlawful under this act." N.J.S.A. 56:8-19. An ascertainable loss exists under

the CFA if it is "'quantifiable or measurable,' not 'hypothetical or illusory.'"

D'Agostino v. Maldonado, 216 N.J. 168, 185 (2013) (quoting Thiedemann v.

Mercedes-Benz USA, LLC, 183 N.J. 234, 248 (2005)). The remedy includes

treble damages and reasonable attorneys' fees. N.J.S.A. 56:8-19.

      "The CFA requires a plaintiff to prove three elements:         '1) unlawful

conduct by defendant; 2) an ascertainable loss by plaintiff; and 3) a causal

relationship between the unlawful conduct and the ascertainable loss.'"

D'Agostino, 216 N.J. at 184 (quoting Bosland v. Warnick Dodge, Inc., 197 N.J.

543, 557 (2009)).

      "[I]t is well-established that the CFA is applicable to commercial

transactions." All the Way Towing, LLC v. Bucks Cnty. Int'l, Inc., 236 N.J.

431, 443 (2019). The Supreme Court has clarified, however, that "context is


                                                                         A-2220-17T4
                                       15
important" and that not "all business-to-business transactions automatically fit

the intendment of a sale offered to the public." Ibid. "In business-to-business

transactions it is the 'nature of the transaction' that will determine whether it can

fit within the CFA's definition of 'merchandise.'"           Id. at 447 (quoting

D'Agostino, 216 N.J. at 187).

      The CFA may apply to custom-made goods. Id. at 443-45. See, e.g., Czar,

Inc. v. Heath, 198 N.J. 195, 197, 209-10 (2009) (applying the CFA to the

building and installation of custom kitchen cabinets); Sprenger v. Trout, 375

N.J. Super. 120, 128, 134 (App. Div. 2005) (holding the CFA applied to the

"business of customizing and refabricating automobiles"); Perth Amboy Iron

Works, Inc. v. Am. Home Assurance Co., 226 N.J. Super. 200, 204-05, 211

(App. Div. 1988) (holding the CFA applied to a transaction involving a yacht

manufactured by defendant with a custom modification to the engine).

      The Court recently adopted four considerations "[t]o promote consistency

in assessing the nature of a transaction in a business-to-business setting for

purposes of determining whether the CFA will apply to the merchandise." All

the Way Towing, 236 N.J. at 447. Those four considerations are:

             (1) the complexity of the transaction, taking into
             account any negotiation, bidding, or request for
             proposals process; (2) the identity and sophistication of
             the parties, which includes whether the parties received

                                                                            A-2220-17T4
                                        16
              legal or expert assistance in the development or
              execution of the transaction; (3) the nature of the
              relationship between the parties and whether there was
              any relevant underlying understanding or prior
              transactions between the parties; and . . . (4) the public
              availability of the subject merchandise.

              [Id. at 447-48.]

To meet the public availability requirement, a party may show "that any member

of the public could purchase the product or service, if willing and able,

regardless of whether such a purchase is popular." Id. at 447.

      Here, the motion court dismissed Specialty Lighting's CFA claim as to

both Maruka and Mori Seiki. The court found that the CFA did not apply to the

transaction because it did "not involve merchandise 'offered . . . to the public

for sale.'"   See N.J.S.A. 56:8-1(c).      It compared this matter to Princeton

Healthcare System v. Netsmart New York, Inc., 422 N.J. Super. 467 (App. Div.

2011), where we held that because the parties were sophisticated corporate

entities that had entered into a heavily-negotiated contract for the sale of a

custom-made program that involved the plaintiff's computer consultant and legal

counsel as active participants, the product was not "merchandise" under the CFA

and the CFA did not apply.

      The motion court here found that, although the NLX Specialty Lighting

ordered was sold from a brochure, it was "made to order[,] assembled with

                                                                           A-2220-17T4
                                         17
accessories . . . unique to a purchaser's needs and specific functions," and took

a long time to produce. The court also reasoned that "the parties spent many

months determining and negotiating the particular machine and parts Specialty

Lighting would purchase," and that the transaction occurred between

"sophisticated corporate entities." See Princeton Healthcare System, 422 N.J.

Super. at 474. The court concluded the transaction did "not constitute a 'sale of

merchandise' within the intent of the CFA" and granted summary judgment.

      In its motion for reconsideration, Specialty Lighting argued the motion

court erred because the NLX was not custom-made. The motion court denied

this motion, clarifying that Specialty Lighting had misconstrued the basis of its

decision. The motion court clarified that it considered several factors to reach

its decision, including: "(1) that the parties were sophisticated corporate entities;

(2) that the parties spent many months [discussing] and negotiating the particular

machine and parts . . . ; and (3) the [m]achine's configuration was based upon

[Specialty Lighting's] needs and specific requirements."

      In the recent decision of All the Way Towing, the Supreme Court affirmed

our conclusion that the particular transaction between two commercial entities

fell within the purview of the CFA. 236 N.J. at 434. The Court distinguished

All the Way Towing from Princeton Healthcare System, because anyone from


                                                                            A-2220-17T4
                                        18
the public could purchase a tow truck with the tow body that the plaintiffs had

requested and the sale was "a direct consumer purchase transaction" that

involved no attorneys or other experts. Id. at 446- 48.

      The object of the transaction here, the lathe, is more akin to the complex

computer software in Princeton Healthcare System, than the tow truck in All the

Way Towing.       The affidavits submitted by Mori Seiki demonstrate the

complexity of the machine. Additionally, Specialty Lighting informed Maruka

and Mori Seiki what elements of the lathe required design corrections. Specialty

Lighting further indicated that the specific modifications it had requested had

not been installed when it inspected the replacement NLX for the second time

in August 2013.    These specifications further support that the lathes were

specialized and complex.

      Maruka provided three proposals to Specialty Lighting over the course of

six months before Specialty Lighting agreed to purchase the NL, and then

engaged in further discussions with Maruka and Mori Seiki to determine the

requirements for the NLX.      Additionally, McMillan was familiar with its

functions, and had a more specialized knowledge of lathes than the general

public. Although the machines are available for purchase to the public, there is

no evidence that anyone in the public other than the type of sophisticated entity


                                                                         A-2220-17T4
                                      19
with the specialized knowledge of Specialty Lighting would seek to enter into

such a transaction.

      Moreover, the record contains evidence that Specialty Lighting

communicated through counsel, as shown by the May 2013 letter, refusing to

accept the machine. Those facts support the result here. See All the Way

Towing, 236 N.J. at 447-48 (considering whether the parties received legal or

expert assistance in the development or execution of the transaction to determine

whether the CFA applied).

      After a de novo review of the record, we conclude that the transaction

involved two sophisticated corporate entities that heavily negotiated a contract

over a significant period of time, which involved the sale of a highly technical

machine.     The motion court properly found the lathe did not qualify as

"merchandise" under the CFA when dismissing Specialty Lighting's CFA

claims.

          II. Specialty Lighting's warranty counterclaim against Maruka.

      Specialty Lighting additionally asserts that the motion court improperly

found the sales agreement's statute of limitations provision barred Specialty

Lighting's breach of warranty claim against Maruka. It argues that its claim is

not time-barred because Maruka was estopped from enforcing the statute of


                                                                           A-2220-17T4
                                       20
limitations, Specialty Lighting did not "accept" the lathe to trigger the

commencement of the statute of limitations, and Maruka guaranteed future

performance.

      The motion court held the one-year statute of limitations provision barred

Specialty Lighting's counterclaims and rejected Specialty Lighting's arguments

that there were genuine disputes of material facts. Specialty Lighting argued

that the statute of limitations provision was unenforceable because it was

illegible, against public policy, and unreasonable. The court found Specialty

Lighting's president signed the agreement, which "explicitly alerted him to its

terms and conditions, including the limitations period."       The motion court

concluded the provision was clearly legible, was not unconscionable, and was

reasonable.

      Specialty Lighting's motion for reconsideration of its breach of warranty

claim against Maruka was denied by the motion court. Because Specialty

Lighting raised for the first time during this reconsideration motion that N.J.S.A.

12A:2-725(2) rendered its claim timely, the motion court did not consider the

argument.     We "will decline to consider questions or issues not properly

presented to the [motion] court when an opportunity for such a presentation is

available unless the questions so raised on appeal go to the jurisdiction of the


                                                                          A-2220-17T4
                                       21
[motion] court or concern matters of great public interest." State v. Robinson,

200 N.J. 1, 20 (2009).

      Specialty Lighting does not assert that this argument was not available

when it first opposed Maruka's motion for summary judgment, and the record

does not suggest otherwise. See Cummings v. Bahr, 295 N.J. Super. 374, 384-

85 (App. Div. 1996) (affirming a motion court's denial of the plaintiff's second

motion for reconsideration because it asserted a new theory without identifying

new facts or overlooked case law); see also ASHI-GTO Assocs. v. Irvington

Pediatrics, P.A., 414 N.J. Super. 351, 360 (App. Div. 2010) (finding no error in

denying a motion for reconsideration because the motion did not rely on matters

the court had overlooked or as to which it had erred). We decline to consider

arguments against the warranty raised for the first time at the motion for

reconsideration or on appeal.

          III. Denial of Mori Seiki's motion for summary judgment.

                                A. Express Warranty

      When deciding Mori Seiki's motion for summary judgment, the motion

court first addressed whether the contract between Mori Seiki and Specialty

Lighting contained an express warranty.        The court found the terms and

conditions of the June 1, 2011 proposal were not incorporated into the executed


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sales agreement and only governed the relationship between Maruka and

Specialty Lighting. Therefore, the motion court held that Mori Seiki failed to

show that the executed agreement precluded Specialty Lighting from recovering

under a consequential damages or breach of warranty claim against Mori Seiki.

      In its cross-appeal, Mori Seiki asserts that, if the sales agreement did not

govern Mori Seiki and Specialty Lighting's relationship, then the express

warranty that was contained in that agreement also could not be applicable.

Specialty Lighting responds that Mori Seiki misread the motion court's decision.

It contends that although the motion court held that the sales agreement and

proposal terms, which included the one-year statute of limitations and damages

limitations, did not apply to Mori Seiki and Specialty Lighting, the court did not

conclude that Mori Seiki failed to provide its standard warranty.

      The motion court's statement of reasons confirm that it only held that the

sales agreement did not incorporate the proposal and did not apply to Mori Seiki .

Specialty Lighting was given a brochure for the NLX, which advertised a two-

year warranty for Mori Seiki machines that stated: "Subject to limitations, Mori

Seiki machines ordered after April 1, 2007 now have a 2-year warranty. Please

contact your sales representatives for details." Specialty Lighting also provided

an image from Mori Seiki's website stating that it has a two-year warranty. The


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website, however, shows 2017 as the copyright year and there was no evidence

presented that this warranty was offered on the website at the time that Specialty

Lighting purchased the machine.

      Although the brochure does not specify the scope of the warranty and

directs the reader to contact a sales representative, the brochure suggests some

type of express warranty, particularly when viewed in favor of the non-moving

party, Specialty Lighting. Therefore, despite the motion court's finding that the

sales agreement did not govern the transaction between Mori Seiki and Specialty

Lighting, Specialty Lighting's breach of warranty claim against Mori Seiki

survives summary judgment because there is a material dispute of fact as to the

applicable warranty.

                           B. Limitation of Damages

      In its summary judgment motion, Mori Seiki sought to limit Specialty

Lighting's damages to the time when the replacement machine was ready to be

delivered.   The motion court rejected the argument and denied summary

judgment on the measure of damages, reasoning that in order to find the damages

were limited in that way, it would have "to find that [Specialty Lighting] was

obligated to accept a defective replacement." The court concluded that Mori

Seiki "failed to show that [Specialty Lighting] [was] not entitled to proceed


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before a jury and argue that (1) the [r]eplacement was defective and (2) damages

are to be measured from the date the [m]achine was delivered to the date

[Specialty Lighting] purchased a suitable replacement."

      Courts are obligated to examine a contract's "plain language . . . and the

parties' intent, as evidenced by the contract's purpose and surrounding

circumstances." Highland Lakes Country Club & Comty. Ass'n v. Franzino, 186

N.J. 99, 115 (2006). "It is not the court's function to make a contract for the

parties or to supply terms that have not been agreed upon." Schenck v. HJI

Assocs., 295 N.J. Super. 445, 450 (App. Div. 1996). "When terms of a contract

are clear 'it is the function of the court to enforce it as written and not to make a

better contract for either party.'" Ibid. (quoting U.S. Pipe & Foundry Co. v. Am.

Arbitration Ass'n, 67 N.J. Super. 384, 393 (App. Div. 1961)). Importantly, "it

is clear that a contract must be interpreted considering the surrounding

circumstances and relationships of the parties, at the time it was entered into, to

understand their intent and to give effect to the nature of the agreement as

expressed on the written page." Id. at 450-51.

      Here, the sales agreement is not clear as to whether Specialty Lighting

was required to accept a defective replacement machine or whether it could

recover any damages accruing after the date the replacement machine was ready


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to be delivered. The sales agreement references only Maruka and Specialty

Lighting and has no signature line for Mori Seiki. Although underneath the

description of the equipment section, it states Specialty Lighting was purchasing

the Mori Seiki NLX2500SY/700 with gantry loader "and options as per

quotation # NJNJ116-JAM dated 6-1-11," it does not state that the terms and

conditions of that proposal are included in the sales agreement. The motion

court did not err when concluding that the sales agreement and proposal did not

govern Mori Seiki's and Specialty Lighting's relationship.

                             C. Breach of Warranty

      Finally, Mori Seiki asserts that the motion court should have found that

Specialty Lighting's refusal to accept the replacement machine precluded its

breach of warranty claim. Under the UCC, "where circumstances cause an

exclusive or limited remedy to fail of its essential purpose, the buyer has the

remedy as provided in N.J.S.A. 12A:2-719(2)." Gen. Motors Acceptance Corp.

v. Jankowitz, 216 N.J. Super. 313, 329 (App. Div. 1987). "[T]he exclusive

remedy of repair and replacement of defective parts fails of its essential purpose

if, after numerous attempts to repair, the [product] did not operate as . . .

[intended,] free of defects." Ibid. If the product or a component of the product

"contains a defect or malfunction, after a reasonable number of attempts to


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remedy defects or malfunctions of the product, the consumer may elect a refund

including reasonable incidental expenses." Id. at 330 (citing U.S.C. § 2304(d)).

      In cases where a breach of warranty provision limits a seller's obligation

to repair or replace defective equipment, "before the exclusive remedy is

considered to have failed in its essential purpose, the seller must be given an

opportunity to repair or replace the product." BOC Grp., Inc. v. Chevron Chem.

Co., LLC, 359 N.J. Super. 135, 147 (App. Div. 2003). A remedy may fail in its

essential purpose if the product does not operate free of defects after several

attempts to repair, "or repair or replacement take an unreasonable time to

complete." Id. at 148.

      To determine if a remedy failed in its essential purpose, courts "must

examine 'the facts and circumstances surrounding the contract, the nature of the

basic obligations of the party, the nature of the goods involved, the uniqueness

or experimental nature of the items, the general availability of the items, and the

good faith and reasonableness of the provision.'" Ibid. (quoting J.A. Jones

Constr. Co. v. City of Dover, 372 A.2d 540, 549 (Del. Super. Ct. 1977)).

      Here, the motion court denied summary judgment on Specialty Lighting's

breach of warranty claim in favor of Mori Seiki because it concluded that even

if "a repair-or-replace provision applie[d] to the dispute, whether the warranty


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                                       27
failed [in] its essential purpose [was] a question of fact." The court also found

that Specialty Lighting's "refusal to accept the [r]eplacement . . . [did] not

preclude [Specialty Lighting] from showing that the warranty failed [in] its

essential purpose."

      The motion court properly denied summary judgment because a material

factual dispute existed as to the terms of the warranty and because the issue of

"[w]hether an exclusive remedy fail[ed] in its essential purpose is a question of

fact." See ibid. at 148. A factual question also existed as to whether the

replacement machine was actually defective and, if so, whether Specialty

Lighting was obligated to accept a defective machine.

      Affirmed.




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