ROSE REAVES v. AMERICAN HONDA MOTOR CO INC LARRY SWANSON JOYCE HONDA INC (2011)

Plaintiff Rose Reaves appeals from two orders of September 25, 2009 that granted summary judgment to defendant American Honda Motor Co., Inc. (AHM), and to defendants Larry Swanson and Joyce Honda, Inc.¹ Plaintiff also appeals from the November 20, 2009 order that denied her motion for reconsideration.   We affirm in part and reverse in part.

I.

On December 4, 2006, plaintiff entered into a three-year lease agreement with Joyce Honda to lease a 2007 Honda Accord automobile manufactured by Honda of America Mfg., Inc. and distributed by AHM. At the time plaintiff leased the vehicle, it had a sticker ² affixed to one of its windows indicating that the United States Environmental Protection Agency's (EPA) fuel economy estimate for that vehicle was twenty-four miles per gallon (mpg) for city driving, and thirty-four mpg for highway driving.   The sticker also had printed thereon the following information:  “ACTUAL MILEAGE will vary with options, driving conditions, driving habits and vehicle's condition.   Results reported to EPA indicate that the majority of vehicles with these estimates will achieve between 20 and 28 mpg in the city and between 28 and 40 mpg on the highway.”

The lease terms permitted plaintiff to drive the vehicle 12,000 miles per year for a total of 36,000 miles during the period of the lease.   Under its terms, excess mileage was to be charged to plaintiff at $.15 per mile.   The lease also provided plaintiff with an option to purchase the vehicle at the end of the term at the agreed price of $15,387.   After operating the car for approximately one week while traveling to and from work on the highway, plaintiff complained to Joyce Honda that the vehicle was not operating at the estimated fuel consumption rate of thirty-four mpg for highway driving.   On March 12, 2007, Joyce Honda conducted a fuel consumption test that indicated the vehicle was operating at a consumption rate of 21.67 mpg.   On May 23, 2007, Joyce Honda performed a second fuel consumption test of the vehicle.   That test indicated that the vehicle was operating at a consumption rate of 22.4 mpg.

On April 28, 2008, after Joyce Honda rejected plaintiff's demand to terminate the lease agreement, plaintiff filed a complaint against AHM, Joyce Honda, and its manager Larry Swanson, alleging common law fraud.³  The complaint contained a broad sweeping allegation that defendants had misadvertised the highway mileage for the motor vehicle as between twenty-four and thirty-four mpg, because results of a post-lease test showed the vehicle was underperforming, and the mileage failed to improve over time.   On May 1, 2009, plaintiff filed an amended complaint alleging additional causes of action under the New Jersey Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20, and the New Jersey Lemon Law Act (the Act), N.J.S.A. 56:12-29 to -49.

On July 7, 2009, AHM's technical expert inspected the vehicle and conducted several diagnostic tests.   The expert opined that the vehicle was operating as designed at a highway fuel consumption rate of 39.09 mpg.   Following the close of discovery, defendants moved for summary judgment.   On August 29, 2009, plaintiff filed a letter brief in opposition, referencing various exhibits.   In addition, plaintiff supplemented her opposition three times:  on September 18, September 22, and September 24, 2009.   However, none of plaintiff's letter oppositions were supported by affidavits or certifications.

Plaintiff, unable to attend court on the return date of the motions because of business reasons, declined the trial court's offer to appear for oral argument via telephone.   On September 25, 2009, the court granted defendants' motions, determining that plaintiff had failed to establish a prima facie claim against defendants.   On October 8, 2009, plaintiff filed a Rule 4:50 motion seeking to vacate the two September 25, 2009 orders, asserting that she had recently discovered new evidence in the form of handwritten notes under the driver's seat of her motor vehicle that were purportedly left by representatives of Joyce Honda following its last fuel consumption test.   The trial court considered the motion as one for reconsideration under Rule 4:49-2.   On November 20, 2009, the court denied the motion, stating that it had previously received and reviewed the referenced evidence prior to ruling on the summary judgment motions.

II.

On appeal, plaintiff argues that the trial court erred in granting the summary judgments, contending that she had established prima facie claims of common law fraud, consumer fraud, and violations under the lemon law.   Plaintiff also contends that the trial court erred in denying her motion for reconsideration, asserting that the evidence submitted in support of her reconsideration motion supports the allegations in her amended complaint.

We have considered plaintiff's argument challenging the trial court's denial of her motion for reconsideration.   We conclude that the argument is without sufficient merit to warrant a discussion in a written opinion.   R. 2:11-3(e)(1)(E).   The trial court had reviewed and considered the evidence plaintiff submitted in support of her reconsideration motion at the time it granted defendants' motions for summary judgment.   Accordingly, the trial court did not overlook or fail to appreciate the significance of the evidence.  D'Atria v. D'Atria, 242 N.J.Super. 392, 401 (Ch. Div.1990).   With that stated, we turn to plaintiff's arguments challenging the trial court's grant of summary judgment to defendants.

Joyce Honda argues that we should not consider plaintiff's arguments challenging the trial court's grant of summary judgment in its favor because plaintiff's notice of appeal only referenced the November 20, 2009 order.   Alternatively, Joyce Honda contends that no evidence exists in the summary judgment record indicating that any of its representatives made misrepresentations of fact regarding the gas mileage performance of the vehicle at the time plaintiff entered into the lease agreement.   Joyce Honda asserts that its fuel consumption tests disclosed that the vehicle was operating within an acceptable range for that vehicle, and plaintiff failed to support her damage claim with expert opinion.

AHM argues that the trial court properly granted its motion for summary judgment, plaintiff having failed to establish a prima facie claim under her three causes of action.   Alternatively, AHM contends that plaintiff's claims are preempted by federal law because the EPA's fuel economy sticker is federally regulated.

We reject Joyce Honda's argument that we dismiss plaintiff's appeal on procedural grounds because plaintiff only referenced the November 20, 2009 order in her notice of appeal.   A civil case information statement (CIS) serves the same essential purposes as a notice of appeal, that is, it places the adversary on notice of the intended scope of the appeal.   Thus, a notice of appeal must be read in conjunction with the attached CIS, and an appeal will be deemed appropriate in circumstances that include not only orders referenced in the notice of appeal, but also matters referenced in the CIS. See Ahammed v. Logandro, 394 N.J.Super. 179, 187-88 (App.Div.2007).

We conclude from a review of plaintiff's CIS that it was her intent in filing the appeal to challenge the court's grant of the two summary judgments.   Accordingly, we state the following general principles governing a party's right to represent him or herself in matters before the court and those governing motions for summary judgment.

“Litigants are free to represent themselves if they so choose, but in exercising that choice they must understand that they are required to follow accepted rules of procedure promulgated by the Supreme Court to guarantee an orderly process.”  Tuckey v. Harleysville Ins. Co., 236 N.J.Super. 221, 224 (App.Div.1989).   Simply stated, “[p]rocedural rules are not abrogated or abridged by plaintiff's pro se status.”  Rosenblum v. Borough of Closter, 285 N.J.Super. 230, 241 (App.Div.1995), certif. denied, 146 N.J. 70 (1996).

Summary judgment must be granted if “the pleadings, depositions, answers to interrogatories and admissions on file, together with 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);  accord Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 528-29 (1995).

The “essence of the inquiry” is “ ‘whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.’ ”  Id. at 536 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2512, 91 L. Ed.2d 202, 214 (1986)).   The trial court is required to consider whether the “competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.”  Id. at 540.  “[B]are conclusions in the pleadings without factual support in tendered affidavits, will not defeat a meritorious application for summary judgment.”  Brae Asset Fund L.P. v. Newman, 327 N.J.Super. 129, 134 (App.Div.1999) (quoting U.S. Pipe & Foundry Co. v. Am. Arbitration Ass'n, 67 N.J.Super. 384, 399-400 (App.Div.1961)).   Nor will “self-serving assertions alone ․ create a question of material fact sufficient to defeat a summary judgment motion.”   Pressler & Verniero, Current N.J. Court Rules, comment 2.2 on R. 4:46-2 (2011).

A court may hear a motion that is “based on facts not appearing of record or not judicially noticeable,” when the motion is supported by “affidavits [or certifications] made on personal knowledge, setting forth only facts which are admissible in evidence to which the affiant is competent to testify and which may have annexed thereto certified copies of all papers or parts thereof referred to therein.”   R. 1:6-6.   Accordingly, it is not acceptable for a party to attempt to present facts or documents not of record by merely appending the documents to the party's motion brief.  Celino v. Gen. Accident Ins., 211 N.J.Super. 538, 544 (App.Div.1986).

On appeal, “the propriety of the trial court's order is a legal, not a factual, question.”   Pressler & Verniero, Current N.J. Court Rules, comment 3.2.1 on R. 2:10-2 (2011).   We employ the same standard that governs trial courts in reviewing summary judgment orders.  Block 268, LLC v. City of Hoboken Rent Leveling & Stabilization Bd., 401 N.J.Super. 563, 567 (App.Div.2008).   With these principles in mind, we turn to plaintiff's challenge of the orders granting summary judgment.

III.

We first address the trial court's grant of summary judgment to AHM. Plaintiff's complaint alleges causes of action sounding in common law fraud, and violations of the CFA and the State's Lemon Law Act (the Act).

To establish a prima facie case of common law fraud, a plaintiff must show that the defendant:  1) made a material representation of a presently existing or past fact;  2) made the representation with knowledge of its falsity;  3) made the representation with the intention that the other party would rely thereon;  and 4) that the other party relied upon the representation to his or her detriment.  Jewish Ctr. of Sussex County v. Whale, 86 N.J. 619, 624-25 (1981).

In contrast to common law fraud, unlawful practices under the CFA fall into three general categories:  “affirmative acts, knowing omissions, and regulation violations.”  Cox v. Sears Roebuck & Co., 138 N.J. 2, 17 (1994).  “When the alleged consumer-fraud violation consists of an affirmative act, intent is not an essential element and the plaintiff need not prove that the defendant intended to commit an unlawful act.”  Id. at 17-18.   Indeed, where there is an affirmative act, the plaintiff “need not even show reliance on the violation of the [CFA].” Leon v. Rite Aid Corp., 340 N.J.Super. 462, 468 (App.Div.2001).   Nor must the plaintiff prove that the misrepresentation was of a material fact.  Id. at 469.  “However, when the alleged consumer fraud consists of an omission, the plaintiff must show that the defendant acted with knowledge, and intent is an essential element of the fraud.”  Cox, supra, 138 N.J. at 18.

To prove a prima facie CFA claim, a plaintiff must present evidence establishing:  “(1) unlawful conduct by the defendant[ ];  (2) an ascertainable loss on the part of the plaintiff;  and (3) a causal relationship between the defendant['s] unlawful conduct and the plaintiff's ascertainable loss.”   N.J. Citizen Action v. Schering-Plough Corp., 367 N.J.Super. 8, 12-13 (App.Div.), certif. denied, 178 N.J. 249 (2003).

To satisfy the ascertainable loss prong of the prima facie standard, the plaintiff “must suffer a definite, certain and measurable loss, rather than one that is merely theoretical.”  Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 558 (2009).  “The certainty implicit in the concept of an ‘ascertainable’ loss is that it is quantifiable or measurable.”  Thiedemann v. Mercedes-Benz, USA, LLC, 183 N.J. 234, 248 (2005) (quoting Webster's Third New Int'l Dictionary 126 (1981)).  “In cases involving breach of contract or misrepresentation, either out-of-pocket loss or a demonstration of loss in value will suffice to meet the ascertainable loss hurdle․”  Ibid.

Here, plaintiff never communicated with AHM prior to leasing the automobile.   Nor did anyone from AHM make misrepresentations to plaintiff during her post-lease communications with the company.   Because plaintiff cannot prove that AHM made any misrepresentations of fact to her with regard to the leased vehicle, the trial court correctly determined that plaintiff failed to establish a prima facie claim of common law fraud or consumer fraud against that defendant.   See Cox, supra, 138 N.J. at 18;  Jewish Ctr. of Sussex County, supra, 86 N.J. at 624-25;  Cole v. Laughrey Funeral Home, 376 N.J.Super. 135, 144 (App.Div.2005).   We now turn to plaintiff's lemon law claim.

The Act provides remedies to a lessee of a motor vehicle that contains a “nonconformity.”  N.J.S.A. 56:12-31 to -33;  Berrie v. Toyota Motor Sales, USA, Inc., 267 N.J.Super. 152, 156 (App.Div.1993).   A “nonconformity” is defined under the Act as “a defect or condition which substantially impairs the use, value or safety of a motor vehicle.”  N.J.S.A. 56:12-30.   Here, as best as we can discern, plaintiff's sole lemon law claim is that AHM represented that the leased vehicle would operate at the EPA estimated mpg, but that it did not.   That claim is preempted by federal law.

Federal preemption of state laws rests on the Supremacy Clause of the United States Constitution.   U.S. Const., art.   VI, cl. 2. Preemption may be either expressed or implied.  Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L. Ed.2d 604, 614 (1977).  “Express preemption is determined from an examination of the explicit language used by Congress.   Implied preemption can appear in two forms:  field preemption ․ and conflict preemption․”  Giordano v. Giordano, 389 N.J.Super. 391, 395 (App.Div.2007) (internal quotations and citations omitted).  “[F]ield preemption [occurs] where the scheme of federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it․”  Ibid. (quoting Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 98, 112 S.Ct. 2374, 2383, 120 L. Ed.2d 73, 84 (1992)).   “[C]onflict preemption [occurs] where compliance with both federal and state regulations is a physical impossibility, or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”  Ibid.

The information that is required to be contained in the Monroney sticker affixed to each new motor vehicle is governed by federal law.  49 U.S.C.A. § 32908(b)(1).   Part of the information that must be provided is the highway and city estimated mpg for that model vehicle.  Ibid. In reaching the estimated mpg for the model of plaintiff's vehicle, the EPA conducted its own tests.   AHM used the information provided and approved by the EPA in preparing the Monroney sticker that was affixed to plaintiff's vehicle.

Publishing the information provided by the EPA on the Monroney sticker “does not establish a warranty under a law of the United States or a state.”  49 U.S.C.A. § 32908(d).  Federal law governing fuel economy estimates expressly preempts state law.   See 49 U.S.C.A. § 32919 (providing in relevant part that when an average fuel economy standard is prescribed under the federal law, a state may not adopt or enforce a law or regulation related to such fuel economy standards).   Because federal law preempts state law, plaintiff cannot pursue a state lemon law claim based on misrepresentation of the estimated mpg contained in the Monroney sticker.   See Paduano v. American Honda Motor Co., Inc., 88 Cal.Rptr.3d 90, 100-03 (Cal.Ct.App.2009).

In his dissent, our colleague disagrees that plaintiff's lemon law claim is preempted by the EPA regulations governing fuel economy estimates. (slip op. at 16).   The dissent argues that plaintiff's lemon law claim is not based on faulty advertising or misrepresentation of the gas mileage estimates contained in the Monroney sticker, but rather on “underperformance” of her particular motor vehicle.  Id. at 11.   The dissent contends that plaintiff established a prima facie lemon law claim “by means of the tests performed by Joyce Honda in 2007 showing that her car has a significantly lower gas consumption rate than estimates for that make and model.”   Those tests revealed an average of about twenty-two miles per gallon gas consumption.  Id. at 12.   The dissent asserts that the “[f]ailure of a particular car to perform in accordance with expectations for the same make and model with similar features is evidence of a nonconformity, which a jury might accept or reject depending on the degree and seriousness of deviation from expected performance.   In that respect, a jury can often decide such a claim without testimony from an expert witness or estimates of diminished value of the car.”  Id. at 14.   Although one might concur with the dissent's rationale using the dissent's extreme example of a motor vehicle operating at a fuel consumption rate of five mpg, rather than at the estimated mpg consumption rate contained in a particular motor vehicle Monroney sticker, id. at 14, 16, we disagree with the applicability of the reasoning to this matter.

The dissent asserts that plaintiff is not basing her lemon law claim upon a breach of warranty.  Id. at 11.   We conclude otherwise.   Implicit in the dissent's reasoning is that AHM warranted or represented to plaintiff that the motor vehicle would achieve a fuel consumption rate in the estimated ranges contained on the Monroney sticker.   The dissent contends that plaintiff's car is defective or “underperforming” because it fails to achieve that promise of performance.  Ibid. Accordingly, the “defectiveness” of plaintiff's vehicle is only apparent when contrasted with the Monroney sticker estimates.   This implies that AHM warranted or promised that plaintiff's vehicle would achieve a fuel consumption rate in or near that estimated range.   Because plaintiff's lemon law claim against AHM is based on an assertion that AHM had represented that the motor vehicle would operate at the EPA estimate when it did not, for reasons stated supra, we conclude that the lemon law claim is preempted by federal regulation.   The federal regulation expressly states that the Monroney sticker does not create a warranty.  49 U.S.C.A. 32908(b).  What is more, even if the claim is not federally preempted, we determine that plaintiff failed to present sufficient proofs to establish a prima facie lemon law claim.

The threshold question in any lemon law claim (and the determinative issue here) is whether a nonconformity exists.   See Christelles v. Nissan Motor Corp., U.S.A., 305 N.J.Super. 222, 227 (App.Div.1997).   The court utilizes an objective standard supplemented by subjective evidence to determine whether a nonconformity substantially impairs the use or value of the car.   See Berrie v. Toyota Motor Sales, USA, Inc., 267 N.J.Super. 152, 157 (App.Div.1993).   That is, “[i]t may be ‘personalized in the sense that the facts must be examined from the viewpoint of the buyer and his circumstances, objective in the sense that the criterion is what a reasonable person in the buyer position would have believed.’ ”  Ibid. (quoting G.M.A.C. v. Jankowitz, 216 N.J.Super. 313, 335 (App.Div.(1987)).  “An important factor is whether the nonconformity ‘shakes the buyer's confidence’ in the goods.”  Ibid. (quoting G.M.A.C., supra, 216 N.J.Super. at 338).   If a reasonable person in the plaintiff's position could readily conclude that the defect impairs the use and value of the car and shakes his or her confidence in it, then the defect is considered a nonconformity.   See ibid.   Under that standard, a plaintiff need not present expert objective evidence of a defect;  rather, a plaintiff may present non-technical lay testimony concerning objective facts and establish a prima facie case.  Christelles, supra, 305 N.J.Super. at 228-29.   Pure subjective testimony, however, will not suffice.  Ibid.

Here, plaintiff did not present any proofs in support of a nonconformity other than the Monroney sticker and the two fuel consumption tests performed by Joyce Honda showing that the car was operating at approximately twenty-two mpg.   The Monroney sticker indicated that the vehicle's estimated mpg was between twenty-four and thirty-four mpg.   However, the sticker also plainly stated that those figures were estimates and that a majority of that make and model of car would operate at between twenty and twenty-eight mpg for city driving and twenty-eight and forty mpg for highway driving, with the actual mileage depending upon the options in the motor vehicle, driving conditions, driving habits, and the vehicle's condition.   The alleged defect plaintiff complains of is that the motor vehicle operates at the low end of the gas consumption spectrum.   The Monroney sticker signals, however, to the buyer or lessee that the fuel consumption may be within those estimated ranges (twenty to forty mpg), and it was.   Indeed, the evidence indicates that plaintiff's vehicle is operating only seven mpg less than the estimated fuel consumption rate for pure highway driving and two mpg more than the estimated fuel consumption rate for city driving.   Additionally, even if plaintiff's fuel consumption rate was to be deemed a defect, plaintiff's use of the vehicle was not curtailed.   Plaintiff drove her motor vehicle more than 32,000 miles over the lease allotment of 36,000.   Nor did plaintiff present any evidence as to a loss in value to the vehicle.

IV.

We now proceed to plaintiff's claims against Joyce Honda and Swanson.

A. The Lemon Law Claim.

The trial court properly dismissed plaintiff's lemon law claim against Joyce Honda and Swanson.   The Act is not applicable to automobile dealers or their employees.  N.J.S.A. 56:12-46a.

B. Common Law Fraud Claim.

The trial court also correctly dismissed plaintiff's common law fraud claim against these two defendants.   First, as to Swanson, the record is devoid of evidence that he made any misrepresentations to plaintiff prior to her entering into the lease agreement for the automobile;  plaintiff's contacts with Swanson arose after she entered into the lease.   Accordingly, plaintiff did not rely on any representations voiced by Swanson in entering the lease, much less misrepresentations of fact.

Second, as to Joyce Honda, plaintiff failed to prove that any representations made to her prior to entering into the lease by any of the dealer's employees were made with knowledge of their falsity.   Plaintiff failed to file affidavits or certifications stating what misrepresentations of fact any of Joyce Honda's employees made to her before she entered into the lease agreement.   Although there is a statement contained in plaintiff's discovery deposition submitted by one of the defendants in support of its motion for summary judgment indicating that Albert Glassman, one of Joyce Honda's salespersons, represented to plaintiff that the automobile would operate at thirty-four mpg for highway driving and twenty-six mpg for city driving, that statement was made by Glassman against the backdrop that the Monroney sticker affixed to the vehicle's window was available for plaintiff to read.   The sticker clearly indicated that the stated mpg consumption rate was estimated, and would vary with operation of the automobile.   In light of that evidence, we conclude that no rational jury could find in favor of plaintiff on the necessary elements of common law fraud that Glassman made the representation with knowledge of its falsity.   R. 4:46-2(c);  Jewish Ctr. of Sussex County, supra, 86 N.J. at 624-25.

With that said, we now turn to plaintiff's CFA claim against Joyce Honda and Swanson.   For the same reasons expressed, supra, that we dismissed plaintiff's common law claim against Swanson, we also dismiss her CFA claim against him.   However, we conclude differently as to Joyce Honda.

Citing Cole, supra, Joyce Honda argues that the trial court correctly granted summary judgment on the CFA claim because the summary judgment record does not contain evidence that it made misrepresentations inducing plaintiff to enter into the lease agreement.  376 N.J.Super. at 144.   Not so.

Plaintiff testified during her discovery deposition that Glassman affirmatively told her that the motor vehicle would provide thirty-four mpg for highway driving and twenty-six mpg for city driving.   When questioned as to whether Glassman had explained to her that the stated mpg was only an estimate, plaintiff answered:  “No.” When questioned further as to whether she understood at the time she entered into the lease that the mpg stated on the Monroney sticker was only an estimate, again plaintiff replied in the negative.   Because to prove a prima facie CFA claim plaintiff need not establish that Glassman's statement concerning the vehicle's fuel consumption rate was made with knowledge of its falsity and an intention to deceive her, or that plaintiff relied upon that misrepresentation when entering into the lease agreement, we conclude that the trial court incorrectly dismissed plaintiff's CFA claim against Joyce Honda.   See Cox, supra, 138 N.J. at 17.

Joyce Honda also asserts in its brief plaintiff's CFA claim fails because she did not “support her claims by expert evidence that the vehicle was underperforming” and because “she failed to provide expert evidence in support of her claim for damages.”   We disagree.

As to the vehicle not operating at the fuel consumption rate represented to her by Glassman, the record contained Joyce Honda's fuel consumption tests of March 12, and May 23, 2007, that indicated plaintiff's vehicle was operating at average fuel consumption rates of 21.67 mpg and 22.4 mpg, respectively.

Concerning damages, plaintiff contends that Joyce Honda should reimburse her for the miles she operated the vehicle during the three-year term in excess of the agreed 36,000 miles at the contract rate of $.15 per mile.   We reject this argument, determining that whether plaintiff's vehicle operated at the fuel consumption rate for highway driving as represented by Glassman is not relevant to plaintiff's obligation to pay the holder of the lease for the excess mileage at the contract rate.   Plaintiff is obligated to pay in accordance with the terms of the lease for the excess mileage whether her vehicle operated at the fuel consumption rate of thirty-four mpg or not.   We also agree with Joyce Honda that plaintiff failed to present expert testimony in support of a claim for loss of the benefit-of-the-bargain of the lease agreement.  Sema v. Automall 46 Inc., 384 N.J.Super. 145, 149 (App.Div.2006);  see also Thiedemann, supra, 183 N.J. at 253-54 (holding under CFA claim that plaintiff is unable to “advance an argument that she might be able to demonstrate loss in future resale value” because at the end of the lease, the leasor, not the lessee, incurs any alleged diminution in future value).

However, we conclude that the summary judgment record contained sufficient evidence that plaintiff suffered an otherwise ascertainable loss to defeat Joyce Honda's motion on the CFA claim.   Plaintiff is entitled to seek damages for any excess expense incurred in purchasing gasoline when operating the vehicle in accordance with the lease by presenting evidence of what she would have paid for gasoline had the vehicle been operating at the represented thirty-four mpg for highway driving versus the 21.67 or 22.4 mpg as shown by Joyce Honda's fuel consumption tests.   We determine that these damages can be readily proven with reasonable certainty.

We affirm the grants of summary judgment to defendant's AHM and Swanson.   We affirm the grant of summary judgment to Joyce Honda on the common law fraud and lemon law claims.   We reverse the grant of summary judgment to Joyce Honda on the CFA claim.

Affirmed in part, and reversed in part.

_

ASHRAFI, J.A.D., dissenting.

I respectfully dissent from the majority's affirmance of summary judgment dismissing plaintiff's “Lemon Law” claim against American Honda Motor Co., Inc. (AHM) and her consumer fraud claim against Larry Swanson.   Although plaintiff's pro se filings suffer from many procedural deficiencies, the summary judgment record demonstrates genuine issues of material fact that preclude dismissal of those claims.

I.

The parties have not provided to us all the papers they filed in support of and in opposition to the motions for summary judgment, or a “statement of all items submitted to the court on the summary judgment motion.”   See R. 2:6-1(a)(1).   Our review of the record is thus hampered by deviations from our appellate rules of procedure.   Nevertheless, the following describes the course of this litigation.

In April 2008, plaintiff Rose Reaves filed a two-page handwritten complaint on a pro se form supplied by the court.⁴  She alleged fraud by Honda Corp. of America, Denville Honda, and Larry Swanson.   Contrary to the requirement that fraud be pleaded with particularity as stated in Rule 4:5-8(a) of the Rules Governing the Courts of the State of New Jersey (“R.” or “Rule(s) ”), the complaint stated only a few facts.   It alleged that “defendant” [sic] had advertised a Honda Accord as obtaining “24/34 miles per gallon” but that defendant's own tests “confirmed auto was underperforming.”   The complaint also alleged that:  “defendant promised mileage would improve over time.   Mileage performance never improved.   As a remedy defendant offered Honda Civic model at a higher monthly payment.   Plaintiff found offer unacceptable.”

Answers to the complaint were filed by Joyce Honda and Larry Swanson together, and AHM separately.   The answers corrected how defendants were identified, denied plaintiff's claim of fraud, and pleaded affirmative defenses, among other pleading formalities in accordance with the Rules.

Subsequently, plaintiff obtained leave of the court and filed an amended complaint, again a form document with a few handwritten words inserted.   The amended complaint added bare references to “consumer fraud” and “lemon law” as additional claims;  otherwise, it merely referenced the “original complaint” as plaintiff's factual allegations supporting all her claims.

The litigation proceeded through discovery, which included plaintiff's deposition.   After the end of the discovery period, defendants moved for summary judgment.   Plaintiff filed four separate statements in opposition to the motions, but none under oath or certified to be true.   See R. 1:4-4;  R. 1:6-6;  and R. 4:46-5(a).   Apparently, she also failed to file a “statement either admitting or disputing each of the facts in the movant's statement.”   See R. 4:46-2(b).

Plaintiff notified the trial court that she could not appear for oral argument on the return date set for defendants' motions, September 25, 2009.⁵  On that date, the court heard briefly from defendants' attorneys and granted summary judgment dismissing all counts against all defendants.   Neither the orders entered by the court nor its oral statements in open court complied with the requirements of Rule 4:46-2(c), which states:  “The court shall find the facts and state its conclusions in accordance with R. 1:7-4.”   See Great Atl. & Pac. Tea Co. v. Checchio, 335 N.J.Super. 495, 498 (App.Div.2000).   To explain its ruling, the trial court stated only:

There's no unlawful conduct either that has been set forth in the materials presented to the court on the summary judgment.   And I don't believe that the Lemon Law is going to apply either to you in this case.   There's just no activity that would put it within the ambit of that law.   It's just that plain and simple.   And, of course, the complaint is a model of simplicity even in its amended form.   I mean, it's a couple of words.   That's all of it is without any assertions that would allow the court to take the matter further.   Consequently, the application ․ for summary judgment is granted both as to [AHM] and as to the dealer.

Cf. Raspantini v. Arocho, 364 N.J.Super. 528, 533 (App.Div.2003) (in granting summary judgment, trial court should state its findings of fact and conclusions of law in accordance with R. 1:7-4).

After learning of the summary judgments entered against her, plaintiff moved for reconsideration, contending that she had newly discovered evidence to support her claims.   By means of a submission she captioned an affidavit, but which did not contain the formalities of an affidavit or a certification, see R. 1:4-4, plaintiff alleged she had discovered some handwritten notes that were evidence of defendants' knowledge of potential defects in her car causing its underperformance on gas mileage.

Plaintiff attended oral argument on November 20, 2009, for the motion for reconsideration.   The court placed plaintiff under oath before hearing her statements.   Plaintiff repeated that she had recently found the notes and the significance she attached to them.   The court denied plaintiff's motion for reconsideration, stating that the notes had been submitted and considered before the court had ruled on the summary judgment motions on September 25, 2009.

Plaintiff filed a notice of appeal and a case information statement seeking to appeal the adverse rulings of September 25 and November 20, 2009.

II.

Rule 4:46-2(c) states that summary judgment “shall be rendered forthwith 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.”   In reviewing a grant of summary judgment, we apply the same standard under Rule 4:46-2(c) that governs the trial court.   See Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007).   We must “consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.”  Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Here, although plaintiff's procedural errors leave gaps in the record, the evidence demonstrates disputed issues of fact entitling plaintiff to a trial.   The relevant and competent evidential materials include the factual assertions made in plaintiff's deposition testimony, the facts shown in undisputed documents, and plaintiff's testimony at the time of the motion for reconsideration.   When viewed most favorably to plaintiff, that evidence and all reasonable inferences that can be drawn from that evidence show the following facts.

In December 2006, plaintiff sought to purchase or lease a new car.   She lived in Nanuet, New York, and worked as an investment analyst in Whippany, New Jersey.   Each workday, she drove about eighty miles to and from work, mostly on Interstate Highway 287.   She wanted a car that was “gas efficient” because of her long commute.

She visited Joyce Honda in Denville, New Jersey, and spoke to a salesman named Albert Glassman.   She liked the appearance of a 2007 Honda Accord and read the sticker on a window stating that its estimated gas mileage was twenty-four miles per gallon for city driving and thirty-four miles per gallon for highway driving.   Glassman also told her that the Accord obtained gas mileage similar to those figures.   He did not say that the figures were estimates.   On December 4, 2006, plaintiff executed a thirty-six month lease for the 2007 Accord.

The lease permitted 12,000 miles of usage per year without extra charge;  additional miles would be charged at the rate of fifteen cents per mile at the end of the lease term.   Although plaintiff expected to exceed the mileage limit because of her long commute, she intended to avoid excess mileage charges by exercising the purchase option provided by the lease agreement at the end of the term.   The lease allowed her to purchase the car after the thirty-six month term at a fixed price of $15,387.

About one week after taking the car and commuting to work, plaintiff called Glassman and complained that the car was not getting the gas mileage she had expected.   Glassman told her the car needed to “be broken in.”   She continued to drive the car without improvement in its gas mileage.   After more calls to Joyce Honda to complain, she spoke to the general manager, Swanson.   He told her that she had “a heavy foot,” although she routinely drove at the speed limit on the highway.   Swanson also said that “the car needed time, it would take time.”

On February 15, 2007, a mechanic at Joyce Honda tested the car, driving it for about thirty miles, and he found “no symptoms ․ related to fuel mileage and consumption.”   On March 6, 2007, after the car had been driven more than 7,000 miles, Joyce Honda performed a fuel consumption test.   The test showed a rate of “21.67 miles per gallon on a 65 mile test.”   Plaintiff sought to return the Accord and to receive another car in its place.   She met with Swanson, and he offered to replace the Accord with a Honda Civic.   Plaintiff refused the offer because the Civic was a smaller car and also because the deal Swanson offered would have required monthly payments of $100 more than her lease on the Accord.

In May 2007, when the odometer on the Accord showed 11,322 miles, Joyce Honda performed a second fuel consumption test.   A technician drove the car for more than 125 miles and determined an average of 22.4 miles per gallon of fuel consumption.   At that time, the price of regular gasoline, as purchased by Joyce Honda for the testing, was $2.979 per gallon.

Plaintiff demanded termination of the lease and sought to return the car.   Joyce Honda refused.   Plaintiff then brought suit as previously described.

On August 15, 2009, after the discovery period in the lawsuit had ended, plaintiff found several pages of handwritten notes under the driver's seat of the Accord.   The notations seemed to reflect information from one or both gas consumption tests conducted by Joyce Honda in March and May 2007.   Among the pages was a notation “A/trans slips” and further seemingly related notations.   Plaintiff interpreted the notes as meaning that Joyce Honda's technician had found a defective mechanical condition of the car, namely, that the automatic transmission was slipping.   Plaintiff attempted to add that information as evidence that the car was defective and should have been replaced.   On the motion for reconsideration, the trial court said it had previously considered the notes plaintiff had belatedly discovered, but nothing in the court's earlier summary judgment ruling made any reference to the notes.   As previously stated, the trial court denied plaintiff's motion for reconsideration, and this appeal followed.

III.

While I agree with my colleagues that the evidence does not support plaintiff's claims for common law or consumer fraud against AHM, I disagree that plaintiff may not pursue a claim against AHM under New Jersey's Lemon Law, N.J.S.A. 56:12-29 to

-49.⁶

In her deposition, plaintiff testified that no representations about gas consumption of the car were made to her by AHM other than what was written on the sticker attached to the window.   As explained in detail by AHM, the sticker on a new car providing gas consumption and other information, known in the automobile industry as a Monroney sticker or label, is a federally-mandated label that the manufacturer must attach and the dealer may not alter.   See 15 U.S.C.A. § 1232;  Acadia Motors, Inc. v. Ford Motor Co., 44 F.3d 1050, 1054 n.6 (1st Cir.1995);  Paduano v. American Honda Motor Co., Inc., 88 Cal.Rptr.3d 90, 100-01 (Cal.Ct.App.2009).   The portion of the label that reports gas consumption information is required by 49 U.S.C.A. § 32908(b).

Regulated by the Environmental Protection Agency (EPA), the Monroney label shows average fuel consumption for a make and model vehicle with similar features as the one to which the label is attached.   The mileage figures are determined through EPA testing or its approval of the manufacturer's testing data.   I agree with the majority that, because federal law preempts state regulation of the contents of the EPA-mandated label, see 49 U.S.C.A. § 32919(b), AHM cannot be held liable under state or common law for alleged misrepresentation or inaccuracy as to the contents of the label.

Plaintiff's claim under New Jersey's Lemon Law, however, is not based on faulty advertising or misrepresentation of the gas mileage figures stated on the Monroney label.   It is based on “underperformance” of her particular car.   That claim does not require a showing that the label contains inaccurate or misleading information.   In fact, it relies on the accuracy of the information contained on the label for that type of car, and it seeks a comparison of the performance of plaintiff's car.

New Jersey's Lemon Law establishes substantive and procedural remedies for a purchaser or lessee of a new motor vehicle that suffers from a “nonconformity.”  Christelles v. Nissan Motor Corp., 305 N.J.Super. 222, 226 (App.Div.1997).   If the consumer reports a nonconformity to the manufacturer or dealer within the time set by the statute, the manufacturer is required to repair the cause of the nonconformity or to accept return of the vehicle and refund the consumer's money.  N.J.S.A. 56:12-31, -32.   In this case, there is no dispute that plaintiff complained of low gas mileage within the time period set by the Lemon Law.

Defendants contend that plaintiff has no evidence of a defect of the car, such as through the report or testimony of an expert witness.   While the lack of expert evidence may detract from plaintiff's proofs at trial, she has established a prima facie case under the Lemon Law by means of the tests performed by Joyce Honda in 2007 showing that her car had a significantly lower gas consumption rate than estimates for that make and model.

Defendants contend that the Monroney label shows only gas consumption estimates and not a guarantee of performance.   Moreover, federal law expressly provides that the Monroney label does not create “a warranty under a law of the United States or a state.”  49 U.S.C.A. § 32908(d).  Defendants also argue that plaintiff has no evidence of impairment of value of her car because of its alleged rate of gas consumption.

Plaintiff's Lemon Law cause of action, however, does not require proof of a guarantee of performance, as in a breach of warranty cause of action.   Nor is plaintiff claiming she is entitled to compensation for a lesser market value of the car.   If she can prove that mechanical underperformance of the car constitutes a nonconformity under the Lemon Law, she is entitled to remedies made available by that legislation.

Nonconformity is defined in the Lemon Law as “a defect or condition which substantially impairs the use, value or safety of a motor vehicle.”   N.J.S.A. 56:12-30.   Safety is not an issue in this case, but plaintiff may attempt at trial to persuade a jury that the use and value of the car, under an objective standard, were substantially impaired because the car cost significantly more to operate than a car that is capable of averaging the estimated mileage figures.   Because of the additional cost of operation, a consumer's ability to use the car and its value were reduced because of an unexplained “condition” of the car that the manufacturer and dealer could or would not repair.

As we have said in different factual circumstances, absence of expert testimony is not fatal to Lemon Law claims.  Christelles, supra, 305 N.J.Super. at 229;  see also Ventura v. Ford Motor Corp., 180 N.J.Super. 45, 53-54 (App.Div.1981) (viable breach of warranty claim despite inability of consumer to identify specific defect of motor vehicle).   A jury does not need an expert to know that consumers may consider a vehicle's rate of gas consumption to decide whether they wish to purchase or lease it, and what price they are willing to pay for it.   In fact, that is the very purpose of the Monroney label and the federal law that mandates it.   The label itself makes reference to comparison of similar cars for purposes of mileage and cost estimates, and it references a “Fuel Economy Guide” containing comparative gas consumption figures for other cars that the dealer must maintain and make available to the consumer.   See 49 U.S.C.A. § 32908(b)(1)(D).

Failure of a particular car to perform in accordance with expectations for the same make and model with similar features is evidence of a nonconformity, which a jury might accept or reject depending on the degree and seriousness of deviation from expected performance.   In that respect, a jury can often decide such a claim without testimony from an expert witness or estimates of diminished value of the car.   To illustrate the point hypothetically, if a specific Honda Accord is shown to average a much lower figure under controlled conditions, for example, a rate of only five miles per gallon, a jury would rationally conclude that a mechanical nonconformity exists in that car triggering remedies under the Lemon Law.

Here, the evidence is not so obvious.   Plaintiff alleges her car averaged about twenty-two miles per gallon, according to the tests performed by Joyce Honda.⁷  Whether or not plaintiff's gas mileage figure shows a nonconformity is an issue of disputed fact that a jury should decide.   It is not such a minor deviation from the average mileage figures shown on the Monroney label that no rational jury could find it to be a nonconformity of the particular car leased to plaintiff.⁸

Defendants also argue that plaintiff has no evidence of her damages, but the Lemon Law provides a refund remedy.   If plaintiff can prove a nonconformity within the meaning of the statute, and defendants could not or would not make the necessary repair, plaintiff is entitled to a refund of the amounts she actually paid “less a reasonable allowance for vehicle use.”  N.J.S.A. 56:12-32b.

Federal law does not preempt the Lemon Law claim because it does not affect federal regulation of the Monroney label.   Plaintiff's claim does not challenge the contents of the Monroney label.   It is not preempted expressly by 49 U.S.C.A. § 32919(b).  Nor does permitting such a claim under state law mean that defendants must alter the label, thus undermining the objectives of the federal regulations.   See, e.g., Int'l Paper Co. v. Ouellette, 479 U.S. 481, 491-92, 107 S.Ct. 805, 811, 93 L. Ed.2d 883, 896 (1987).

As defendants argue, a particular car might obtain higher or lower gas consumption averages than shown on the Monroney label.   The extreme hypothetical example referenced earlier of a car with a gas consumption rate of five miles per gallon also demonstrates that the federal statutes were not intended to occupy the entire field and impliedly preempt any state law claims based on the underperformance of a particular car.   See Geier v. Am. Honda Motor Co., Inc., 529 U.S. 861, 881, 120 S.Ct. 1913, 1925, 146 L. Ed.2d 914, 932 (2000);  Hillsborough County v. Automated Med. Labs., Inc., 471 U.S. 707, 713, 105 S.Ct. 2371, 2375, 85 L. Ed.2d 714, 721 (1985).   In those circumstances, it would not be “a physical impossibility” for defendants to comply “with both federal and state regulations,” Hillsborough County, supra, 471 U.S. at 713, 105 S.Ct. at 2375, 85 L. Ed.2d at 721, by providing to the consumer a car that does not have such a mechanical nonconformity.   The doctrine of conflict preemption does not apply to plaintiff's Lemon Law claim.

In sum, the Lemon Law claim is not preempted by federal law because it is not alleging liability of the manufacturer for misstating or omitting information contained on the Monroney label.   The label reports mileage testing for that type of car, not the particular one purchased or leased by the consumer.   Neither EPA testing nor the contents of the label affect the mechanical condition and performance of a particular car that is sold or leased to the consumer.

For these reasons, summary judgment was erroneously granted against plaintiff on her Lemon Law claim against AHM.

IV.

As to plaintiff's claims of fraud against the dealer and its manager, I depart from the majority's analysis in two respects.

First, the majority only considers representations made by defendants before plaintiff signed the lease agreement, and it affirms summary judgment granted to defendant Swanson because he made no such pre-lease representations.   I read plaintiff's claims of fraud also to include statements Glassman and Swanson made after she entered into the lease agreement.   In her deposition, plaintiff testified that both men stated her car only needed to be “broken in,” or it “needed time,” to achieve improved gas mileage.   She made a similar allegation in her complaint, also asserting that she found no improvement over time in the gas mileage results.

Read broadly, plaintiff's complaint alleges that these post-leasing statements were false and caused her additional losses because she continued to drive the car at additional cost of gas consumption.   The representations made by Swanson and Glassman after the lease was signed are an additional basis for plaintiff's claims of fraud.

I agree with my colleagues that plaintiff's evidence is not sufficient to sustain her cause of action for common law fraud based on any statements made by Swanson or Glassman, but I believe the question is closer than the court's opinion reflects.   Reciting the elements of common law fraud, see Jewish Ctr. of Sussex County v. Whale, 86 N.J. 619, 624-25 (1981), the majority concludes that plaintiff produced no evidence that Glassman or Swanson made misrepresentations with knowledge of their falsity.   Nothing in the record allows a finding that Glassman knowingly misrepresented the gas mileage that plaintiff's Accord would achieve.   He was merely repeating the information on the Monroney label, and plaintiff has no evidence that Glassman was aware of any alleged nonconformity of the car.

However, as to the post-lease statements that the car merely needed time to be broken in, there is a potentially viable claim that defendants must have known their statements were false.   Neither the Monroney label nor any other document provided on this record, including the owner's manual issued by the manufacturer or the “Fuel Economy Guide” published by the EPA, states that a new car needs a breaking-in period to achieve its gas consumption estimates.   A section of the owner's manual urges the driver to “break-in” the car, but only during the first 600 miles, and that section of the manual makes no reference to gas consumption rates.   Cf. Paduano, supra, 88 Cal.Rptr.3d at 97 (representations by dealer that 2004 Honda Civic hybrid required break-in period to achieve expected gas mileage were refuted by a representative of Honda).   From this record, one might infer that, after plaintiff's car had been driven for many weeks and thousands of miles, Swanson in particular was knowingly using false excuses to divert plaintiff from demanding remedies potentially available under the Lemon Law.⁹ However, because plaintiff did not produce any direct evidence that Swanson and Glassman knew the “break-in” statements were false, I agree with the majority's conclusion that she cannot prove her claim of common law fraud.

As the majority states, plaintiff's consumer fraud claim does not require proof that defendants knew their affirmative representations were false.   See Cox v. Sears Roebuck & Co., 138 N.J. 2, 17-18 (1994).   Therefore, plaintiff should be permitted to pursue her consumer fraud claims against both Joyce Honda and Swanson.

My second disagreement with the majority is that evidence of ascertainable loss should not be limited to the extra gasoline expenses plaintiff paid while using the car.   The record shows a disputed factual issue as to whether plaintiff also suffered an ascertainable loss in the extra mileage charges she had to pay.   At the end of the thirty-six month lease, plaintiff expected to be charged more than $4,000 for extra mileage beyond the permitted 36,000 miles.   She had planned to avoid that charge by exercising the purchase option in her lease agreement.   She alleges she incurred the charge because defendants refused to terminate the lease and accept return of the car.

“The certainty implicit in the concept of an ‘ascertainable’ loss is that it is quantifiable or measurable.”  Thiedemann v. Mercedes-Benz USA, LLC, 183 N.J. 234, 248 (2005).   Here, plaintiff claims a specific amount, beyond her anticipated total payments at the time she entered the lease, and she alleges the loss was caused by defendants' consumer fraud violations.   While I reach no ultimate conclusion as to plaintiff's proofs, the loss is measurable and its cause is a question for the jury to decide.¹⁰

V.

I would reverse the trial court's dismissal of plaintiff's claim under the Lemon Law against AHM and her consumer fraud claims against Joyce Honda and Swanson, and I would remand for trial on those claims.   In other respects, I join in the court's opinion.

FOOTNOTES

FN1. Defendants AHM and Joyce Honda, Inc., are incorrectly designated in plaintiff's amended complaint as American Honda Motor Corp., and Joyce Honda Motor Corp..  FN1. Defendants AHM and Joyce Honda, Inc., are incorrectly designated in plaintiff's amended complaint as American Honda Motor Corp., and Joyce Honda Motor Corp.

FN2. The sticker is commonly referred to in the industry as a “Monroney sticker.”   See Acadia Motors, Inc. v. Ford Motor Co., 44 F.3d 1050, 1054 n.6 (1st Cir.1995)..  FN2. The sticker is commonly referred to in the industry as a “Monroney sticker.”   See Acadia Motors, Inc. v. Ford Motor Co., 44 F.3d 1050, 1054 n.6 (1st Cir.1995).

FN3. Plaintiff's original complaint incorrectly designated Joyce Honda as Denville Honda.   Plaintiff corrected the mis-designation in her amended complaint.   Neither the complaint nor the amended complaint indicates whether plaintiff sued AHM as the distributor or manufacturer of the motor vehicle..  FN3. Plaintiff's original complaint incorrectly designated Joyce Honda as Denville Honda.   Plaintiff corrected the mis-designation in her amended complaint.   Neither the complaint nor the amended complaint indicates whether plaintiff sued AHM as the distributor or manufacturer of the motor vehicle.

FN4. See New Jersey Judiciary, Represent Yourself in Court (Pro Se) Self-Help Resource Center, http://www.judiciary.state.nj.us//index.html..  FN4. See New Jersey Judiciary, Represent Yourself in Court (Pro Se) Self-Help Resource Center, http://www.judiciary.state.nj.us//index.html.

FN5. Plaintiff states she could not take a second day off from her job after the original return date of the motions was adjourned at defendants' request..  FN5. Plaintiff states she could not take a second day off from her job after the original return date of the motions was adjourned at defendants' request.

FN6. The Lemon Law applies only to the manufacturer and not the dealer of a new motor vehicle.  N.J.S.A. 56:12-32, -46.   Although AHM identifies itself as the distributor of the vehicle rather than its manufacturer, the summary judgment order entered in its favor was not based on a distinction between those two roles.   Also, AHM filed an answer to plaintiff's complaint brought against the manufacturer..  FN6. The Lemon Law applies only to the manufacturer and not the dealer of a new motor vehicle.  N.J.S.A. 56:12-32, -46.   Although AHM identifies itself as the distributor of the vehicle rather than its manufacturer, the summary judgment order entered in its favor was not based on a distinction between those two roles.   Also, AHM filed an answer to plaintiff's complaint brought against the manufacturer.

FN7. AHM asserts that its expert tested plaintiff's car in 2009 and found about thirty-nine miles per gallon in highway driving, but such differences in the test results are a matter of factual dispute for a jury to accept or reject..  FN7. AHM asserts that its expert tested plaintiff's car in 2009 and found about thirty-nine miles per gallon in highway driving, but such differences in the test results are a matter of factual dispute for a jury to accept or reject.

FN8. The majority accepts defendants' argument that Joyce Honda's fuel consumption tests demonstrate the car was operating within the overall estimated mileage shown on the Monroney label, twenty to forty miles per gallon for all types of driving.  Ante at 19.   The record, however, must be viewed most favorably to the party opposing summary judgment, here plaintiff.   See Brill, supra, 142 N.J. at 536, 540.   None of the documents in the record, including Swanson's letter of March 30, 2007, state that the testing was done under all driving conditions.   The record permits a reasonable inference that Joyce Honda was addressing plaintiff's specific complaint of low gas mileage in her highway driving while commuting to work.   The twenty-two miles per gallon test results, which match plaintiff's own estimate, are significantly lower than the estimated thirty-four miles per gallon for highway driving, or the twenty-eight to forty miles per gallon estimated range for highway driving, stated on the Monroney label.The difference between twenty-two and the average thirty-four miles per gallon means that plaintiff's car may have used about fifty percent more gasoline than the estimate.   Taking into account the amount of driving done by plaintiff and the varying price of gasoline, the extra cost is probably between $2,000 and $3,000 during the three-year term of plaintiff's lease.In different factual circumstances where the figures for gas consumption are closer than in this case, a trial court could determine as a matter of law that the evidence is so one-sided that the consumer cannot prevail in proving a nonconformity, see id. at 540, in particular, because the Monroney label only provides an estimate of gas consumption, not a guarantee of performance.   Also, for purposes of a prima facie showing of nonconformity in this case, plaintiff's driving habits and other variable conditions affecting mileage were removed as reasons for alleged underperformance of her car because Joyce Honda conducted its own gas consumption tests..  FN8. The majority accepts defendants' argument that Joyce Honda's fuel consumption tests demonstrate the car was operating within the overall estimated mileage shown on the Monroney label, twenty to forty miles per gallon for all types of driving.  Ante at 19.   The record, however, must be viewed most favorably to the party opposing summary judgment, here plaintiff.   See Brill, supra, 142 N.J. at 536, 540.   None of the documents in the record, including Swanson's letter of March 30, 2007, state that the testing was done under all driving conditions.   The record permits a reasonable inference that Joyce Honda was addressing plaintiff's specific complaint of low gas mileage in her highway driving while commuting to work.   The twenty-two miles per gallon test results, which match plaintiff's own estimate, are significantly lower than the estimated thirty-four miles per gallon for highway driving, or the twenty-eight to forty miles per gallon estimated range for highway driving, stated on the Monroney label.The difference between twenty-two and the average thirty-four miles per gallon means that plaintiff's car may have used about fifty percent more gasoline than the estimate.   Taking into account the amount of driving done by plaintiff and the varying price of gasoline, the extra cost is probably between $2,000 and $3,000 during the three-year term of plaintiff's lease.In different factual circumstances where the figures for gas consumption are closer than in this case, a trial court could determine as a matter of law that the evidence is so one-sided that the consumer cannot prevail in proving a nonconformity, see id. at 540, in particular, because the Monroney label only provides an estimate of gas consumption, not a guarantee of performance.   Also, for purposes of a prima facie showing of nonconformity in this case, plaintiff's driving habits and other variable conditions affecting mileage were removed as reasons for alleged underperformance of her car because Joyce Honda conducted its own gas consumption tests.

FN9. Motor vehicle manufacturers and dealers are required to provide consumers a statement of their rights under the Lemon Law at the time of sale or lease.   See N.J.S.A. 56:12-34..  FN9. Motor vehicle manufacturers and dealers are required to provide consumers a statement of their rights under the Lemon Law at the time of sale or lease.   See N.J.S.A. 56:12-34.

FN10. The precise extra mileage charge, $4,970.70, was not determined until the end of the lease term in December 2009, which was after entry of the court's summary judgment orders.I recognize that the actual loss to plaintiff in foregoing the purchase option does not necessarily equate with the extra mileage charge.   Greater mileage would be expected to reduce the market value of the car she would have purchased for $15,387.   Defendants are free to challenge the accuracy and relevance of plaintiff's claim for the extra mileage charge as a measure of her losses..  FN10. The precise extra mileage charge, $4,970.70, was not determined until the end of the lease term in December 2009, which was after entry of the court's summary judgment orders.I recognize that the actual loss to plaintiff in foregoing the purchase option does not necessarily equate with the extra mileage charge.   Greater mileage would be expected to reduce the market value of the car she would have purchased for $15,387.   Defendants are free to challenge the accuracy and relevance of plaintiff's claim for the extra mileage charge as a measure of her losses.

PER CURIAM