NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

This case involves allegations of a defendant's breach of what amounts to a post-employment restrictive covenant.

Defendant Steven Karlik was a sales representative with plaintiff Emerald Financial Resources ("Emerald"), a financial services firm that sells insurance policies and other financial products. Co-plaintiff Michael Vesuvio is a principal of Emerald. Emerald is a general agent of Massachusetts Mutual Life Insurance Company ("MassMutual").

Karlik used to work at Equitable Life Assurance Society ("Equitable"), where Vesuvio was his supervisor for a period of time. Vesuvio left Equitable in 1998 and founded Emerald. He brought Karlik to his new firm in 2000, although the parties dispute whether he was an Emerald employee or an independent contractor. Karlik functioned as an agent for Emerald, at times arranging policies for customers with MassMutual. Karlik and Emerald split the commissions on certain transactions.

As part of Karlik's contractual arrangements, he agreed to be bound by the following restrictions if he ended his association with MassMutual and its General Agent, Emerald:

During his time with Emerald, Karlik participated in arranging policy applications for two acquaintances, Marc Feaster and Christopher Daly. Feaster and Daly are principals of their own company, ViaSource Funding Group, LLC ("ViaSource"). Like Vesuvio and Karlik, Feaster used to work at Equitable. Karlik met Daly while working with Feaster at Equitable. The four men are social as well as professional acquaintances.

Plaintiffs' lawsuit concerns several MassMutual insurance policy applications for Feaster and Daly, which Karlik prepared while at Emerald. These were: (1) a $10 million variable universal life policy to insure Feaster; (2) a $10 million variable universal life policy to insure Daly; (3) a $2 million ten-year term life policy insuring Feaster; and (4) a $4 million one-year term life policy insuring Feaster. However, even though all four policy applications were approved, only the two term life policies were actually issued by MassMutual. The variable universal life policies with MassMutual were not issued, apparently because Feaster and Daly had concerns at the time about business and tax issues.

In July 2010, Karlik left Emerald and went to another firm, Creative Financial Group of Pennsylvania ("Creative"), which is an agent of a MassMutual competitor, New England Financial ("New England"). A few months after his departure from Emerald, Karlik prepared and sold variable universal life insurance policies through New England to Feaster and Daly. In addition, Feaster's $4 million term life policy with MassMutual lapsed and was not renewed. These events occurred within two years of Karlik's departure from Emerald, thus potentially implicating the restrictive covenant.

Contending that Karlik violated his restrictive covenant, Emerald and Vesuvio sued him in the Law Division. Their complaint alleges a host of legal theories, including breach of contract. In essence, plaintiffs claim that Karlik wrongfully induced Feaster and Daly to stop buying new policies or renewals from

MassMutual and to switch over instead to New England.

Karlik denied any breach of the restrictive covenant provisions or any other wrongful conduct. He also filed counterclaims against plaintiffs, which he ultimately dismissed voluntarily. Neither side took depositions. The parties cross-moved for summary judgment.

In his initial decision, the motion judge granted Karlik's motion for summary judgment for dismissal of plaintiffs' claims only in part, finding that there were genuine issues of material fact. Karlik moved for reconsideration. Emerald cross-moved for reconsideration, although plaintiffs disputed the timeliness of that cross-motion.

On reconsideration, the motion judge changed his mind and granted full summary judgment to Karlik, dismissing all claims asserted against him in their entirety. On reflection, the judge was persuaded by the fact that the proposed MassMutual variable universal life policies for Feaster and Daly, although applied for and approved by MassMutual, were never issued and no premiums were paid. The judge also found no proof that Karlik had caused Feaster to not renew his $4 million term life policy with MassMutual.

The motion judge found it significant that the New England variable universal life policies were issued to Feaster and Daly before Feaster's MassMutual term life policy lapsed. The judge perceived no causal nexus between those events.

The judge denied plaintiffs' cross-motion for reconsideration of his original partial dismissal of their claims. He did so primarily on procedural grounds, ruling that the cross-motion had been filed too late.

This appeal by plaintiff ensued. Defendant has not filed a cross-appeal, having withdrawn his counterclaims in the trial court.

In considering this appeal, we review de novo the parties' summary judgment motion and cross-motion. Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014) (citing Manahawkin Convalescent v. O'Neill, 217 N.J. 99, 115 (2014)). This court 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); see also R. 4:46-2(c). To grant the motion, the court must find that the evidence in the record "`is so one-sided that one party must prevail as a matter of law.'" Brill, supra, 142 N.J. at 540 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)).

In reviewing these summary judgment motions, the appellate court applies the same standard that governed the trial court.

Davis, supra, 219 N.J. at 405 (citing Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012)). The court accords no special deference to a trial judge's assessment of the documentary record, as the decision to grant or withhold summary judgment does not hinge upon a judge's determinations of the credibility of testimony rendered in court, but instead amounts to a ruling on a question of law. See Manalapan Realty, L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995) (noting that no "special deference" applies to a trial court's legal determinations).

Viewing the record in a light most favorable to plaintiffs, we affirm the trial court's rulings in part, and vacate them in part. In particular, we remand this matter for a trial solely concerning whether Karlik contacted Feaster for the purpose of inducing or attempting to induce him to fail to renew the $4 million term life policy with MassMutual.

If the jury finds by a preponderance of the evidence that the non-renewal was caused by such contact due to Karlik's post-departure actions in allegedly procuring the variable universal life policies through New England, and that the policy would otherwise have been renewed, then plaintiffs may be awarded lost renewal commissions on that singular policy as well as any other appropriate remedies under the terms of the restrictive covenant and the applicable law. We affirm the summary judgment dismissal of all other claims asserted by plaintiff.

We reach this conclusion because a reasonable circumstantial inference can be made that Karlik's efforts after leaving Emerald to sell Feaster a variable universal life policy through New England influenced Feaster's decision not to renew the $4 million term life policy with MassMutual. Although Feaster has submitted an affidavit disavowing that his failure to renew that policy was influenced by his earlier decision to purchase the New England variable universal life policy through Karlik, the jury might not, in the context of this case, find his assertions in that regard to be credible. See Model Jury Charge (Civil), 1.12L, "General Provisions for Standard Charge: Credibility" (1998). See also Shelcusky v. Garjulio, 172 N.J. 185, 198-99 (2002) (finding that questions of credibility raised by sworn statements should not be resolved by the court at the summary judgment stage). Because the other evidence supports a reasonable inference contrary to the affidavit's assertion, there is a genuine issue of material fact.

The chronology of events —— including but not limited to Karlik's efforts to place MassMutual policies for Feaster while he was with Emerald, his long friendship with Feaster, his departure from Emerald for a competing firm, and his rather prompt sale of variable universal life policies through New England to

Feaster after that departure —— all raise genuine issues of material fact as to whether Feaster's non-renewal of the MassMutual term life policy was precipitated by Karlik's actions in alleged violation of the terms of his restrictive covenant. It is reasonably conceivable that Feaster saw no need to renew the $4 million term life policy once he had obtained additional coverage through New England, and that the two events were not entirely independent of one another.

By contrast, we agree with the motion judge that the restrictive covenant was not triggered as to the two proposed MassMutual variable universal life policies because they never were issued. Karlik never "received compensation" on those non-issued policies. Moreover, there is no claim or evidence that Feaster allowed the ten-year MassMutual $2 million term life policy to lapse, so that particular policy cannot be the subject of a cause of action.

As a procedural matter, we do observe that the motion judge erred in deeming plaintiffs' cross-motion for reconsideration untimely. Their cross-motion concerned other counts within the same complaint and was sufficiently related to Karlik's own motion for reconsideration to be timely under Rule 1:6-3(b). In any event, that procedural error is of little consequence here because, with the exception of the claims associated with the non-renewal of Feaster's one-year life policy, plaintiffs' claims otherwise do not survive summary judgment and do not warrant further comment. Rule 2:11-3(e)(1)(E).

Affirmed in part, vacated in part, and remanded for trial solely concerning the non-renewal of Feaster's $4 million term life policy with MassMutual. We do not retain jurisdiction.