A.D. VS. DONALD R. AYUSA (L-4688-18, CAMDEN COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-1517-19
A.D., an infant under the age
of 18 years, by her mother and
natural guardian, ALEXA
RIVERA, D.D., an infant under
the age of 14 years, by his
mother ALEXA RIVERA, and
ALEXA RIVERA, individually,
Plaintiffs-Appellants,
v.
DONALD R. AYUSA and
CAMPBELL'S AUTO EXPRESS,
Defendants-Respondents.
_____________________________
Submitted January 13, 2021 – Decided June 17, 2021
Before Judges Accurso and Enright.
On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Docket No. L-4688-18.
Sacco & Fillas, LLP, attorneys for appellants (James R.
Baez, on the briefs).
Margolis Edelstein, attorneys for respondents (Robert
M. Kaplan and Lawrence J. Bunis, on the brief).
PER CURIAM
Plaintiff Alexa Rivera, for herself and on behalf of her children A.D. and
D.D., appeals from an order dismissing her complaint against defendant Donald
R. Ayusa and Campbell's Auto Express with prejudice pursuant to Rule 4:23-
5(a)(2) for failure to provide discovery. Because we conclude the trial court
mistakenly exercised its discretion in dismissing the complaint with prejudice,
we reverse.
This case arose out of an accident on the Turnpike in 2018 when plaintiff's
disabled car was struck by a Mack truck driven by defendant Ayusa and owned
by defendant Campbell's. Plaintiff's two children were in the back seat of her
car. All suffered injuries. Plaintiff's complaint was dismissed without prejudice
in August 2019 under Rule 4:23-5(a)(1) when she failed to provide discovery.
When no motion to restore was filed within sixty days, defendants moved
for dismissal with prejudice under Rule 4:23-5(a)(2). Plaintiff, represented by
counsel, opposed the motion and filed a cross-motion to reinstate the complaint
with responses to the overdue discovery. Defendants opposed the motion
claiming the responses provided were "woefully inadequate" and plaintiff had
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yet to respond to the supplemental interrogatories.1 Without conducting oral
argument, resolving the dispute over the adequacy of the answers and whether
answers to the supplemental interrogatories had been provided, or ensuring that
plaintiff's counsel had served the original order of dismissal without prejudice
on plaintiff, along with the notices prescribed by Appendix II-A and -B of the
Rules, the court dismissed the case with prejudice on the return date outside the
presence of counsel. 2
We note at the outset that we do not approve of or condone the desultory
pace at which plaintiff's counsel prosecuted this matter and responded to
legitimate discovery demands. Nevertheless, "[i]t is well-established that the
1
In his certification in support of the cross-motion to reinstate, plaintiff's
counsel averred that responses to the supplemental interrogatories had been
provided, putting the matter in dispute. In her reply brief on appeal, plaintiff
argues there was no proof the supplemental interrogatories were ever served.
The resolution of the parties' dispute over the supplemental interrogatories is not
essential here because the failure to ensure the procedural safeguards of Rule
4:23-5 were complied with before dismissing the complaint with prejudice
requires reversal regardless of which side is correct.
2
Although the order dismissing the case with prejudice states the court's reasons
were set forth on the record, the parties failed to provide us the transcript. We
listened to a recording of that session, which ran less than five minutes. The
court based its ruling on plaintiff's failure to serve answers to the supplemental
interrogatories, apparently overlooking the dispute on that point. The court did
not address plaintiff's counsel's compliance with the procedural requirements of
Rule 4:23-5.
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main objective of the two-tier sanction process in Rule 4:23-5 is to compel
discovery responses rather than to dismiss the case." A&M Farm & Garden Ctr.
v. Am. Sprinkler Mech., L.L.C., 423 N.J. Super. 528, 534 (App. Div. 2012).
When the parties dispute the adequacy of the answers, the court is to identify
the questions requiring more specific answers, Adedoyin v. Arc of Morris Cty.
Chapter, Inc., 325 N.J. Super. 173, 182 (App. Div. 1999), adjourning the motion
to compel compliance. St. James AME Dev. Corp. v. City of Jersey City, 403
N.J. Super. 480, 487 (App. Div. 2008).
Even more important, both the Rule and the case law interpreting it make
clear the motion to dismiss with prejudice may not be granted without the judge
ensuring that the procedural safeguards built into Rule 4:23-5(a) have been
"scrupulously followed and technically complied with." Thabo v. Z Transp.,
452 N.J. Super. 359, 369 (App. Div. 2017). The court must ensure that counsel
for the delinquent party has filed the affidavit required by Rule 4:23-5(a)(2)
averring that counsel served the client with the order of dismissal without
prejudice by regular and certified mail, return receipt requested, "accompanied
by a notice in the form prescribed by Appendix II-A" of the Rules, "specifically
explaining the consequences of failure to comply with the discovery obligation
and to file and serve a timely motion to restore" as required by Rule 4:23-5(a)(1)
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and that the client had been "served with an additional notification, in the form
prescribed by Appendix II-B, of the pendency of the motion to dismiss . . . with
prejudice." R. 4:23-5(a)(3).
Appearance by the attorney for the delinquent party on the return date is
mandatory. R. 4:23-5(a)(2). The Rule further provides that
if the attorney for the delinquent party fails to timely
serve the client with the original order of dismissal or
suppression without prejudice, fails to file and serve the
affidavit and the notifications required by this rule, or
fails to appear on the return date of the motion to
dismiss or suppress with prejudice, the court shall,
unless exceptional circumstances are demonstrated,
proceed by order to show cause or take such other
appropriate action as may be necessary to obtain
compliance with the requirements of this rule.
[R. 4:23-5(a)(3).]
Judging from the record before us, none of the Rule's procedural
safeguards appears to have been complied with. 3 Accordingly, we conclude the
trial court's entry of the order dismissing plaintiff's complaint with prejudice
without reviewing the discovery plaintiff provided in response to defendants'
3
We reject plaintiff's argument that the motion to dismiss with prejudice should
have been denied based on defense counsel's failure to provide proof he served
her counsel with the order to dismiss without prejudice as required by the terms
of the order and Rule 1:5-1(a). Plaintiff's argument relies on an outdated version
of Rule 1:5-1 prior to its amendment in 2018 to provide for electronic service
pursuant to Rule 1:32-2A.
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demands, resolving the dispute over the adequacy of the answers and whether
answers to supplemental interrogatories had been provided, and ensuring
plaintiff's counsel had served plaintiff with the original dismissal order and the
required notices under Rule 4:23-5(a), constituted a mistaken exercise of its
discretion. St. James AME Dev. Corp., 403 N.J. Super. at 484 (holding that
"[w]hether to grant or deny a motion to reinstate a complaint lies within the
sound discretion of the trial court."). We thus reverse the dismissal with
prejudice and remand for further proceedings not inconsistent with this opinion.
We do not retain jurisdiction.
Reversed and remanded.
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