eMAZZANTITECHNOLOGIES, INC v. DOUGLAS SINGER AND NICHE SERVICES, LLC,1

NOT FOR PUBLICATION WITHOUT THE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-2933-15T3

eMAZZANTI TECHNOLOGIES, INC.,

        Plaintiff-Respondent,

v.

DOUGLAS SINGER AND NICHE
SERVICES, LLC,1

     Defendants-Appellants.
_______________________________

              Argued November 28, 2017 – Decided February 23, 2018

              Before Judges Sumners and Moynihan.

              On appeal from Superior Court of New Jersey,
              Law Division, Hudson County, Docket No. L-
              1974-13.

              Alissa Pyrich argued the cause for appellant
              (Jardim, Meisner & Susser, PC, attorneys;
              Anthony Bedwell and Alissa Pyrich, of counsel
              and on the brief; Tracy U. Azinge, on the
              briefs).

              Kerry B. Flowers argued the cause for
              respondent (Flowers & O'Brien, LLC, attorneys;
              Kerry B. Flowers and Michele A. Daitz, of
              counsel and on the brief).

1
   Although Niche Services, LLC, is listed as an appellant in the
notice of appeal, the order on appeal applies only to Douglas
Singer.
PER CURIAM

       Following a ten-day bench trial, Judge Kimberly Espinales-

Maloney issued an order of judgment in favor of plaintiff eMazzanti

Technologies,    Inc.   (eMazzanti   or    company)   against   defendant

Douglas Singer, its former employee, for $27,200 in compensatory

damages under 
N.J.S.A. 2A:38A-3.         The statute is part of the New

Jersey Computer Related Offenses Act (CROA), 
N.J.S.A. 2A:38A-1 to

-6, which permits a business owner to recover compensatory and

punitive damages, and attorney's fees and costs, for the purposeful

or     knowing   alteration,   taking,      destruction,   damage,     and

unauthorized tampering with its computer or computer system.2          The



2 N.J.S.A. 2A:38A-3 provides:

            A person or enterprise damaged in business or
            property as a result of any of the following
            actions may sue the actor therefor in the
            Superior Court and may recover compensatory
            and punitive damages and the cost of the suit
            including a reasonable attorney’s fee, costs
            of investigation and litigation:

            a. The purposeful or knowing, and unauthorized
            altering, damaging, taking or destruction of
            any data, data base, computer program,
            computer software or computer equipment
            existing internally or externally to a
            computer, computer system or computer network;

            b. The purposeful or knowing, and unauthorized
            altering, damaging, taking or destroying of a
            computer, computer system or computer network;


                                     2                            A-2933-15T3
judge determined that Singer had accessed eMazzanti's computer

system without authorization, and took and destroyed electronic

data information therefrom.      Three months later, the judge granted

eMazzanti's    motions   for   attorneys'   fees,   cost   of   suits,   and

punitive damages under the statute.

     Before us, Singer contends eMazzanti should not have been

awarded   compensatory    damages   because   the   judge's     credibility

findings in favor of eMazzanti were against the weight of the

evidence, and the judge abused her discretion in allowing the

admission of certain evidence. He furthers argues eMazzanti failed

to prove entitlement to punitive damages by clear and convincing

evidence.     We disagree and affirm.




            c. The purposeful or knowing, and unauthorized
            accessing or attempt to access any computer,
            computer system or computer network;

            d. The purposeful or knowing, and unauthorized
            altering,    accessing,     tampering    with,
            obtaining,    intercepting,     damaging    or
            destroying of a financial instrument; or

            e. The purposeful or knowing accessing and
            reckless altering, damaging, destroying or
            obtaining of any data, data base, computer,
            computer program, computer software, computer
            equipment,   computer  system   or   computer
            network.




                                    3                               A-2933-15T3
      eMazzanti    is   an    information      technology     services   company

involved in designing, upgrading, maintaining, and monitoring of

clients' computer network infrastructure; consulting clients on

securing, implementing and improving their computer networks;

storing   and    providing     back-up       services   for   clients'   digital

assets; and setting up wireless infrastructures to enable remote

and mobile access.      The company, owned by husband and wife, Carl

and Jennifer Mazzanti (Mazzanti, hereinafter refers solely to

Carl), employed Singer as Senior Network Engineer and Project Team

Lead for ten years.          As a condition of employment, Singer, like

other employees, signed a non-disclosure agreement to ensure the

privacy   of    eMazzanti's     clients'      confidential     and   proprietary

electronic information that was maintained to service clients'

needs.    The company also implemented security measures to prevent

employees from unauthorized access to client data, including data

encryption, heightened password and authentication requirements,

alerts for each login, and a ticketing system that tracked access

and use of client data.         Only Singer and Mazzanti had access to

the   "Domain     Controller,"      the       central    security    point    for

eMazzanti's computer system3 to control                 access levels to      the


3
    When discussing eMazzanti's "computer system" or "computer
network" herein, these terms are interchangeable and generally
refer to eMazzanti's digital computer infrastructure, which
includes its computer programs, software, files, and servers.

                                         4                               A-2933-15T3
system's    files,    folder,   accounting   data,    customer   lists,     and

everything from e-mail.         However, Singer did not have access to

data   stored   on    plaintiff's   server   or   other   employees'     email

communications stored on the email exchange server.

       On February 21, 2002, following an upsetting meeting with the

Mazzantis, Singer left work and did not return until two days

later.     According to Mazzanti's testimony, during Singer's first

day of absence, Mazzanti was repeatedly kicked out of the company's

computer system, indicating another user was logged into the same

account at the same time.           On February 23, at 12:23 a.m., the

morning prior to Singer's return, Mazzanti logged into the Domain

Controller remotely from his home, and discovered that Singer had

logged   into   the    Domain   Controller   administrative      account      at

approximately 10:00 a.m. on February 22 and remained logged in for

one day, fourteen hours and seven minutes.           In addition, the email

exchange server showed that Singer had accessed it, and remained

logged in for one day, fourteen hours, and forty-five minutes.

       Mazzanti also claimed the back-up hard drive for the company's

server was missing from the server room, to which only he and

Singer had access.        The camera system's login list showed two

administrative account logins occurred on February 23, at 10:33

a.m. and 5:04 p.m., but did not specify any username.                      When

Mazzanti reviewed the camera footage from the server room, he

                                      5                                A-2933-15T3
discovered the recordings for that week were deleted.           By logging

into the camera system, a person could delete its recordings.

Mazzanti claimed that he did not go into the server room, and

surmised that Singer did so.

     When     Singer   returned   to   work,   Mazzanti   terminated    his

employment for violating company policy by accessing computer

files   and   employees'   emails   without    authorization.    Mazzanti

maintained that Singer had only been given such access to the

Domain Controller seven years prior, because Mazzanti was on his

honeymoon in Egypt without computer access, so that Singer would

be able to fix any problems during Mazzanti's absence. Thereafter,

Mazzanti contended he told Singer that he was not allowed to access

the Domain Controller without authorization, and if he did, he

would be terminated.

     In evidence, Mazzanti presented screenshots that he took of

Singer's computer screen when Singer was out of work depicting

Singer's remote activity on the company's system during the two

days prior to his termination, which led Mazzanti to conclude

Singer accessed the system without authority.

     To further support the claim that Singer was aware he needed

authorization to access the computer system, there was a "legal

warning" that appeared each time an employee logged onto the



                                       6                           A-2933-15T3
computer system, requiring the employee to accept its terms before

logging in.    The warning stated:

           This computer system is operated by eMazzanti
           and may be accessed only by authorized users.
           Authorized users are granted specific, limited
           privileges in the use of the system. The data
           and programs in this system may not be
           accessed, copied, modified or disclosed
           without prior approval of eMazzanti, Inc.
           Access and use, or causing access and use, of
           this computer system by anyone other than as
           permitted by eMazzanti are strictly prohibited
           by eMazzanti and by law and may subject an
           unauthorized user, including unauthorized
           employees, to criminal and civil penalties.
           The use of this system is routinely monitored
           and recorded.

Mazzanti   testified   his   company    had   to   shut   down   for    a   week

following Singer's breach to ensure the security of its clients'

and the company's confidential electronic information.             Two weeks

after Singer's termination, Mazzanti received Singer's company-

owned laptop in the mail.       The laptop's hard drives were cleaned

of Singer's profile and all of its data, thereby preventing an

assessment of Singer's activity on the laptop. Over a month later,

Singer established his own information technology company, Niche,

to provide the same services as offered by eMazzanti.                  In fact,

one of eMazzanti's former clients became Niche's client.

     Based    upon   his   investigation,     Mazzanti    concluded      Singer

exceeded his computer privileges by reading employees' emails and

accessing the system without authorization.

                                    7                                   A-2933-15T3
     Singer, referencing the access given to him during Mazzanti's

honeymoon, denied Mazzanti's assertion that he needed Mazzanti's

permission to access the domain account.            However, Halim Dumi, an

employee of eMazzanti, who worked with Singer before Singer was

terminated,    and   took    over   Singer's   job,    confirmed    Mazzanti's

testimony     of   the     company-wide    access     restriction    policies,

including the access restrictions articulated in the Employee

Handbook and the pop-up legal warning. Singer also denied that he

was accessing eMazzanti's computer system remotely when he was out

of work two days prior to his termination; claiming he merely did

not log out of the system after working on tasks for the company

and clients and going home.         To the contrary, Mazzanti maintained

that the screenshots showed that Singer was active on the system

remotely.

     In her detailed written decision, Judge Espinales-Maloney

assessed the witnesses' testimony and found Mazzanti's and Dumi's

testimony more credible than Singer's denials.                 She reasoned

Mazzanti's demeanor "was calm, direct, assertive, and without

hesitation"    and   his    "testimony     regarding   Singer's     actions   on

February 23, 2012 [was] consistent with the trial exhibits."                  She

therefore     determined      Singer   violated     
N.J.S.A.      2A:38A-3    by

accessing eMazzanti's Domain Controller, client servers, and email

exchange server, without authorization.             We defer to the judge's

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ability to hear "the witnesses, sift[] [through] the competing

evidence, and [make] reasoned conclusions."            Griepenburg v. Twp.

of Ocean, 
220 N.J. 239, 254 (2015). We therefore discern no reason

to upset her factual findings because we are unpersuaded that they

were   "so   manifestly   unsupported     by   or   inconsistent    with   the

competent, relevant and reasonably credible evidence as to offend

the    interests    of    justice."       Ibid.     (citations      omitted).

Accordingly, we reject Singer's effort to have us assess the

evidence and make independent findings of Mazzanti's credibility

and the weight given to the screenshots from eMazzanti's camera

system, the Domain Controller and the email exchange server.               See

Cannuscio v. Claridge Hotel & Casino, 
319 N.J. Super. 342, 347

(App. Div. 1999).

       Next, we address Singer's argument that the judge abused her

discretion in allowing Mazzanti to testify regarding evidence that

was not produced in discovery-Mazzanti's testimony regarding the

screenshots, and the alerts he was getting for access privileges

from Singer's account.      We see no abuse of discretion.

       Singer's concerns were initially addressed in pre-trial in

limine   motions   when   Judge   Espinales-Maloney      found     defendants

"never filed a motion to dismiss or compel the documents any time

during discovery, as required by Rule 4:18-1 and 4:24-2" despite

receiving the documents four months prior to trial, and they

                                      9                               A-2933-15T3
instead "sat on their rights for four months, essentially lying

in wait."   The judge further determined there was good cause and

no attempt to mislead by not forwarding the documents prior to the

end of discovery.4   We take no issue with the judge's decision to

admit the late-produced documents "[i]n the interest of justice

to hear the case on the merits" and "decide this case based on all

of the credible evidence."   The judge gave a rational explanation

that was consistent with our rules and did not constitute an

injustice to Singer.   Hisenaj v. Kuehner, 
194 N.J. 6, 20 (2008);

Jacoby v. Jacoby, 
427 N.J. Super. 109, 116 (App. Div. 2012).

     Moreover, during the trial, following the parties' conference

in chambers with the judge, defense counsel withdrew his objections

to the documents, stipulated to their admission, and in fact,

stated his intention to use the documents in Singer's case in

chief.   Thus, even if the documents' admission was improper, under

the doctrine of invited error, Singer cannot now assert that

Mazzanti's testimony regarding the documents was improper.     Brett

v. Great Am. Rec., Inc., 
144 N.J. 479, 503 (1996) ("The doctrine

of invited error operates to bar a disappointed litigant from

arguing on appeal that an adverse decision below was the product




4
   The tardy production was a result of eMazzanti's counsel being
consumed with her husband's medical issues and sudden death.

                                10                           A-2933-15T3
of error, when that party urged the lower court to adopt the

proposition now alleged to be error.").

      Any    arguments   not   addressed        concerning    the   weighing    of

evidence and admission of evidence lack sufficient merit to warrant

discussion in a written opinion.             R. 2:11-3(e)(1)(E).    In summary,

we   conclude   the   record   contains        sufficient    credible   evidence

supporting Judge Espinales-Maloney's findings that Singer violated

CROA and eMazzanti is entitled to the compensatory damages awarded.

      Finally, there is no merit to Singer's arguments that punitive

damages were not warranted because there was insufficient evidence

that he "acted egregiously or with an evil mind" and no evidence

that he made unauthorized access to eMazzanti's computer system

and he deleted information on his company-issued laptop.                   Since

we   noted   above    that   the    record     contains   sufficient    credible

evidence supporting the finding that Singer violated CROA, we do

not address Singer's repeated attack on the sufficiency of the

evidence.

      Singer's contention that punitive damages were awarded based

on the finding that his actions were egregious or with evil

intentions is misplaced.           In awarding punitive damages, the judge




                                        11                               A-2933-15T3
applied the Punitive Damages Act,5 specifically 
N.J.S.A. 2A:15-

5.12(a), which provides:

           Punitive damages may be awarded to the
           plaintiff only if the plaintiff proves, by
           clear and convincing evidence, that the harm
           suffered was the result of the defendant’s
           acts or omissions, and such acts or omissions
           were actuated by actual malice or accompanied
           by a wanton and willful disregard of persons
           who foreseeably might be harmed by those acts
           or omissions. This burden of proof may not be
           satisfied by proof of any degree of negligence
           including gross negligence.

           [(Emphasis added).]

Thus, the judge did not, and need not have found, Singer acted

with "actual malice" as he contends, to determine he was liable

for punitive damages.   We conclude the punitive damages award does

not result "in a manifest denial of justice," Maul v. Kirkman, 
270 N.J. Super. 596, 620 (App. Div. 1994), because the record supports

the judge's finding that there was clear and convincing evidence

that Singer acted with "wanton and willful disregard . . . which

had a high probability of damaging eMazzanti's business" and

demonstrated his "reckless indifference to the harm that eMazzanti

would suffer."

      Affirmed.





5 N.J.S.A. 2A:15-5.9 to -5.17.

                                   12                       A-2933-15T3