TRACEY L. GIST VS. ALEXANDER BREZO(L-4169-14, UNION COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-4471-15T1
TRACEY L. GIST,
Plaintiff-Appellant,
v.
ALEXANDER BREZO and
ELIZABETH BREZO,
Defendants-Respondents.
_______________________________
Submitted September 25, 2017 - Decided October 16, 2017
Before Judges Accurso and Vernoia.
On appeal from Superior Court of New Jersey,
Law Division, Union County, Docket No. L-4169-
14.
The Simantov Law Firm, PC, attorneys for
appellant (Joseph M. Simantov, on the brief).
Soriano, Henkel, Biehl & Matthews, PC,
attorneys for respondents (Peter DeSalvo, Jr.,
on the brief).
PER CURIAM
Plaintiff Tracey L. Gist appeals from the denial of her R.
4:50-1 motion to set aside the order dismissing her personal
injury complaint with prejudice pursuant to R. 4:23-5(a)(2).
Because we cannot find that plaintiff put forth competent
evidence of excusable neglect or exceptionable circumstances
justifying such relief, we affirm.
Plaintiff was involved in an accident on November 15, 2012,
with a car driven by defendant Alexander Brezo and owned by
defendant Elizabeth Brezo. She filed her complaint against them
on November 13, 2014. When she failed to respond to defendants'
request for executed medical authorizations in the form annexed
and more specific answers to fourteen Form A and supplemental
interrogatories and four categories of defendants' notice to
produce, they moved to compel. The motion went unopposed, and
the court entered an order on September 4, 2015, compelling
responses within fifteen days.
When plaintiff did not comply with the order, defendants
moved to dismiss the action without prejudice pursuant to R.
4:23-5(a)(1). Plaintiff did not oppose the motion, and the
court entered an order dismissing her complaint without
prejudice on October 23, 2015.
In her brief on appeal, plaintiff claims she supplied
"original Answers to the Standard Form A Interrogatories,
Supplemental Interrogatories and Notice to Produce to Defendant
on or about December 17, 2015." The document in her appendix to
support that assertion, however, is a letter in a different case
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pending in another county involving the same plaintiff but a
different defendant, directed to a different lawyer and law
firm.
On December 30, 2015, plaintiff moved to reinstate the
action. The motion was supported with a certification from
plaintiff's counsel averring that he received on September 4,
2015, a September 2, 2015 order of dismissal for failure to
provide outstanding discovery. He claimed defense counsel had
already "received all outstanding discovery prior to the entry
of [the] court's Order on September 4, 2015" and requested the
case be "restored to the active calendar."
Defendants cross-moved to dismiss with prejudice. The
motion was supported by defense counsel's certification, in
which he claimed plaintiff had never produced the discovery
ordered on September 4, and that sixty days had passed since the
court dismissed the case without prejudice, entitling defendants
to a dismissal with prejudice.
Plaintiff's counsel was not in court on the return date of
the motions. He sent a per diem lawyer who expressed her
understanding that all outstanding discovery had been provided
and the delay had been caused by "some lack of communication
from the plaintiff because she ended up having brain surgery in
August, unrelated to the accident[,] and events that were
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leading up to that surgery left her out of touch with her
counsel and unable to – to recall certain events that would have
been helpful in – providing responses to the discovery."
Defendants' counsel represented he was not provided the
discovery the court ordered produced on September 4, prior to
the entry of that order, as plaintiff's counsel certified in
support of the motion to reinstate. He claimed he had only
received responsive documents in the last day or so, well after
the filing of the motion to reinstate and the cross-motion to
dismiss with prejudice. Defense counsel further asserted he
still had not received several categories of documents,
including the declaration sheet for plaintiff's auto policy in
force on the date of the accident, and thus did not know whether
he was defending a verbal threshold case or the extent of
plaintiff's PIP coverage.
On confirming per diem counsel had no first-hand knowledge
of plaintiff's medical problems and how they affected her
ability to assist her counsel with discovery, and satisfied that
critical documents remained outstanding, the court granted
defendants' motion to dismiss with prejudice.
Plaintiff did not take a direct appeal of that order
entered January 22, 2016. Instead, she moved almost two months
later to vacate the order pursuant to R. 4:50-1(a) or (f).
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Plaintiff's counsel filed a certification in support of the
motion claiming that on the return date of the January motions,
defendants were "in possession of all the discovery materials in
[his] possession, to which they were entitled," and the
materials provided "amounted to full compliance with the Order
entered by [the] court on September 4, 2016, for more specific
answers/responses to discovery requests." Counsel repeated the
representation made to the court by per diem counsel regarding
plaintiff's medical problems and claimed that "clearly
extraordinary circumstance impacted directly . . . upon our
preparation of this case and ability to promptly respond to the
Defendant's demands and the Order of September 4, 2015."
Counsel maintained that "given that all outstanding discovery
materials were in fact provided to the Defense prior to the date
the Motions were heard," dismissal with prejudice would be
unjust to plaintiff "making admonition and imposition of
sanctions an appropriate remedy." Counsel did not attempt to
detail the discovery produced in January and how it satisfied
the September 4 order and made no reference to the missing
declaration sheet.
Defendants opposed the R. 4:50 motion and the court heard
oral argument. Plaintiff's counsel of record was again not
present, and another per diem lawyer appeared on her behalf in
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his stead. Plaintiff's lawyer rested on the papers and was
unable to counter defense counsel's assertion that discovery
remained outstanding. The judge, after engaging in a thorough
review of the several discovery motions marking the history of
the case, denied relief. The judge focused on the different
contradictory certifications by plaintiff's absent counsel, who
first averred he provided defense counsel with all outstanding
discovery prior to the September 4 order and later was forced to
tacitly concede he filed the motion to reinstate on December 30
without ever having provided defendants the documents he was
ordered to produce on September 4.
Turning to plaintiff's counsel's averments that discovery
was hampered by plaintiff's medical condition, the judge noted
that difficulty, "which certainly would be something for the
court to consider if anyone had provided a single piece of paper
to support that position, rather than someone just alleging it,"
was not presented in an affidavit made on personal knowledge as
required by R. 1:6-6. Relying on the competent evidence in the
record, the judge found the arguments made on plaintiff's behalf
did not provide grounds for relief under R. 4:50-1(a) or (f).
He concluded that "[w]hat we have here is a lack of diligence on
the part of the attorney, I'm satisfied, in failing to do his
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job in properly representing his client. Those are not
exceptional circumstances."
The dismissal of a complaint with prejudice for failure to
provide discovery, through apparently no fault of the plaintiff
who suffers the sanction, is an obviously troubling circumstance
for judges charged with administering the rules "to secure a
just determination, simplicity in procedure, fairness in
administration and the elimination of unjustifiable expense and
delay." R. 1:1-2. It is particularly concerning here because
plaintiff's counsel had by the return date on the motion to
dismiss with prejudice, apparently finally provided defense
counsel with many of the documents ordered produced more than
four months before.
Had counsel of record appeared on the January return date,
he may well have been able to argue that the court was
presented, not with an all-out failure to comply with discovery,
but with a bona fide dispute over the responsiveness of the
discovery provided, compelling the court to review and
adjudicate the discovery dispute under Zimmerman v. United
Servs. Auto. Ass'n., 260 N.J. Super. 368, 377 (App. Div. 1992).
Counsel did not appear, however, and the court was faced with
defense counsel's representation that critical documents
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remained outstanding and plaintiff's counsel's conflicting
certifications as to what he had produced and when.
Counsel did not address and correct the problems on the R.
4:50 motion but instead relied on incompetent hearsay that
might, if admissible, have explained the problems in September
but did not address why discovery was still outstanding the
following January. Even on appeal, counsel, who was also
counsel of record in the trial court, has nowhere attempted to
explain with reference to the September 4 order what he produced
and how it satisfied the court's order. Given this record, we
cannot find the trial court abused its discretion in refusing to
find excusable neglect under R. 4:50-1(a) or the exceptional
circumstances necessary to justify relief under R. 4:50-1(f).
See US Bank Nat. Ass'n v. Guillaume, 209 N.J. 449, 467 (2012);
Feinsod v. Noon, 272 N.J. Super. 248, 252 (App. Div. 1994).
Affirmed.
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