NJ Supreme Court Sets High Bar for Establishing a Business Acted in Conformity With Its Habit or Routine Practice

In Gerald Fazio Jr. v. Altice USA (A-21-24/089744) (Decided July 9, 2025), Justice Fasciale writing for a unanimous NJ Supreme Court clarified when evidence of a specific, repeated business practice can be admissible to prove that a business acted in conformity with that practice. According to the Court, a high “degree of specificity” of the habit or routine evidence is critical to establishing a rebuttable presumption that a business acted in conformity with its habit or routine practice.

Facts of Fazio v. Altice USA

Plaintiff Gerald Fazio, Jr. is a person with quadriplegia and has difficulty breathing. He is unable to wear a face mask. In 2019, plaintiff visited an Altice USA retail store and purchased cellular service. While he was there, plaintiff was not shown any documents that contained arbitration provisions. Instead, a salesperson handed plaintiff a receipt that stated, without any reference to arbitration, “[a] copy of all documents and agreements . . . will be sent electronically to the email address you provided during account creation.” Those “documents and agreements” purportedly included the customer service agreement (CSA), which has arbitration provisions. Almost a week after purchasing cellular service, plaintiff bought a phone at an Altice retail store. This time, plaintiff signed a Retail Installment Contract (RIC); it does not mention waiving the right to a jury trial or to sue in court.

In June 2021, during the COVID-19 pandemic, plaintiff went to an Altice retail store to address a problem with his cell phone. The employees denied him access to the store for failing to wear a face mask and called the police. In October 2022, plaintiff filed this complaint, alleging that the Altice store employees discriminated against and harassed him by refusing to accommodate his medical condition and by calling the police, as well as by creating “a spectacle whereby other customers were emboldened to harass [plaintiff] on the basis of his disability.” He alleged that Altice violated the New Jersey Law Against Discrimination and sought damages for that violation and for negligent infliction of emotional distress.

Altice filed a motion to compel arbitration and dismiss the complaint. It submitted an affidavit from the Senior Director of Business Process Management for retail stores, who certified familiarity with “Altice’s and Optimum Mobile’s business practices” and generally certified that, after buying cellular service, plaintiff “would have received a copy of the [CSA] by email.” Altice also relied on the RIC, which incorporated the terms of the CSA.

The trial judge dismissed the complaint and compelled arbitration. The Appellate Division affirmed. While the appeals court acknowledged that neither party produced an email forwarding to plaintiff a copy of the customer service agreement, it ultimately concluded that “the parties’ conduct evidenced a binding agreement” because plaintiff utilized his cellular service “uninterrupted for nearly two years.”

NJ Supreme Court’s Decision in Fazio v. Altice USA

The New Jersey Supreme Court reversed. Justice Douglas Fasciale wrote on behalf of the unanimous Court. 

“We hold that, under N.J.R.E. 406, evidence of a specific, repeated, and regular business habit or practice, whether corroborated or not, would have been admissible to establish a rebuttable presumption that Altice had acted in conformity with that habit or practice,” Justice Fasciale wrote. “But here, Altice produced insufficient evidence of such habit or practice. And because there is no proof that Altice emailed plaintiff the critical customer service agreement, we need not reach whether there exists mutual assent to waive a jury trial and arbitrate the dispute.”

In reaching its decision, the New Jersey Supreme Court confirmed that evidence of a habit or routine business practice can be admissible under N.J.R.E. 406(a) to prove that a business acted in conformity with that practice. However, before a court may admit evidence of habit, the offering party must establish the degree of specificity and frequency of uniform response that ensures more than a mere “tendency” to act in a given manner, but rather, conduct that is “semi-automatic” in nature. 

As Justice Fasciale further explained:

To give rise to the presumption, however, evidence of a routine practice or habit must have the requisite degree of specificity, such as an affidavit that describes “a repeated behavioral response to a specific factual stimulus.” If such a presumption is successfully raised, it then falls to the plaintiff to demonstrate that there exists a genuine issue of material fact about whether the business conformed to its regular habit or practice in a particular case.

In this case, the New Jersey Supreme Court found that the Altice affidavit “did not set forth what … Altice’s … specific business practices were regarding how customers were provided with service agreements.” In support, it noted that the affidavit did not set forth, with specificity, what the customer service representatives routinely discussed with customers, or list how or when or from whom emails containing customer service agreements were routinely sent.

“The ‘degree of specificity’ required to establish a business’s habit or routine practice is not a minor detail,” Justice Fasciale wrote. “Without the requisite quantum of proof, Altice has not established that it maintained a routine business practice of emailing service agreements to customers.”

Given its holding that Altice failed to establish that it was entitled to a rebuttable presumption of having emailed the customer service agreement, the New Jersey Supreme Court did not reach whether a mutual assent to arbitrate existed. Similarly, the Court did not address the enforceability of the CSA or the adequacy of emailing the CSA as a follow-up to an in-store purchase to purportedly create a valid arbitration agreement.