Steven Anello v. Mark J. Ingber, Esq. ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-2055-22
STEVEN ANELLO and
ANELLO FENCE, LLC,
Plaintiffs-Appellants,
v.
MARK J. INGBER, ESQ.,
INGBER & GELBER, LLP,
n/k/a INGBER LAW FIRM,
MICHAEL H. ANSELL, ESQ.,
ANSELL GRIMM & AARON,
P.C., and MICHAEL EINHORN,
ESQ.,
Defendants-Respondents.
_____________________________
Argued November 27, 2023 – Decided April 8, 2024
Before Judges Gilson and Bishop-Thompson.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-3672-19.
Howard Nirenberg argued the cause for appellants
(Noel E. Schablik, PA, attorneys; Noel E. Schablik, on
the brief).
Jeffrey Scott Leonard argued the cause for respondents
Mark J. Ingber, Esq., and Ingber & Gelber, LLP (Lewis
Brisbois Bisgaard & Smith, LLP, attorneys; Jeffrey
Scott Leonard, on the brief).
PER CURIAM
Plaintiffs Steven Anello and Anello Fence, LLC appeal from the dismissal
of their complaint with prejudice pursuant to Rule 4:23-5(a)(2). We reverse and
remand for the trial court to determine whether sanction and appropriate
conditions for reinstatement of the complaint should be imposed due to the
absence of any evidence that plaintiffs were advised of their attorney's lapse or
that the court made sufficient efforts to obtain plaintiffs' compliance with the
Rule.
I.
On May 16, 2019, plaintiffs filed a legal malpractice claim against
defendants Mark J. Ingber, Ingber & Gelber, LLP n/k/a Ingber Law Firm (Ingber
defendants); Michael H. Ansell, Esq., Ansell Grimm & Aaron, P.C. (Ansell
defendants); and Michael Einhorn, Esq.
On August 6, 2019, the Ingber defendants propounded a notice to produce
documents and interrogatories on plaintiffs.
In November 2019, plaintiffs retained new counsel, filed a substitution of
counsel, and moved to file an amended complaint. The trial court denied
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plaintiffs' motion in January 2020, because a courtesy copy was not served.
Plaintiffs immediately refiled the motion, which was ultimately granted by the
court on February 24, 2020, ordering the amended complaint be filed within
fourteen days. Plaintiffs, however, did not file their amended complaint until
May 21, 2020.
On September 9, 2020, plaintiffs provided answers to the interrogatories
propounded by the Ansell defendants, but their answers to the Ingber defendants'
interrogatories were still outstanding. Discovery initially concluded on October
18, 2020. The next day, plaintiffs moved to extend discovery, returnable in
November 2020. The Ingber defendants filed opposition to plaintiffs' motion,
asserting plaintiffs failed to timely move to extend discovery and failed to satisfy
the good cause requirement of Rule 4:24-1(c).
Shortly thereafter, the Ingber defendants moved for summary judgment
returnable on December 4, 2020, contending plaintiffs failed to serve expert
reports. Two days before the return date of the summary judgment motion,
plaintiffs requested a two-week extension to obtain an expert report. The court
granted plaintiffs' request despite opposition from the Ingber defendants.
In January 2021, at the oral argument on plaintiff's motion to extend
discovery, plaintiffs' counsel represented that the outstanding discovery to both
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the Ingber and Ansell defendants would be produced by the end of the month.
Following oral argument, the court granted plaintiffs' motion to extend
discovery "given the restrictions imposed by COVID-19." The Ingber
defendants subsequently withdrew their summary judgment motion. A different
trial judge then extended fact discovery through August 31, 2021.
As of February 2021, the Ingber defendants had not received plaintiffs'
discovery responses. In response to a request from the Ingber defendants
counsel regarding the status of the discovery responses, plaintiffs' counsel stated
he was meeting with his clients that afternoon, February 11, 2011.
Plaintiffs' discovery responses were not produced as of early March 2021.
Counsel for Ingber defendants made another inquiry regarding the status and
informed plaintiffs' counsel that if the discovery responses were not received by
the end of the week, a motion to dismiss without prejudice would be filed. When
the discovery responses were not served by the end of March, the Ingber
defendants moved for dismissal without prejudice. Plaintiffs' counsel did not
respond to the motion, and the court entered the order of dismissal without
prejudice on April 18, 2021.
Sixty days later, on June 18, 2021, the Ingber defendants moved to dismiss
the amended complaint with prejudice pursuant to Rule 4:23-5(a)(2), returnable
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on July 9, 2021. The Ansell defendants filed a letter the same day joining the
Ingber defendants' motion. In a letter to the court two days before the return
date, plaintiffs' counsel told the court that he served "fully responsive"
interrogatory answers that day and requested the court deny the Ingber
defendants' motion. In reply to plaintiffs' opposition, the Ingber defendants
argued plaintiffs' opposition was untimely under Rule 1:6-3(a) and plaintiff did
not move to restore the amended complaint pursuant to Rule 4:23-5.
Between June and October 2021, plaintiff did not move to reinstate the
amended complaint. The trial court heard oral argument on the Ingber and
Ansell defendants' motion to dismiss on October 19, 2021. At the outset, the
court cited Rule 4:23-5(a)(2), explaining that a motion to dismiss with prejudice
shall be granted unless a motion to vacate has been filed by the delinquent party
and either the discovery responses were provided, or exceptional circumstances
are shown to prevent dismissal. The court found plaintiffs did not file a motion
to vacate the dismissal prior to the return date. The court also found that there
was no certification that plaintiffs had been served with the order of dismissal
without prejudice as required by Rule 4:23-5(a)(1); nor was there proof that
plaintiffs had been served with an additional notification in the form prescribed
by Appendix IIB concerning the pending motion to dismiss or suppress with
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prejudice. Nevertheless, the court ultimately granted the Ingber defendants'
motion to dismiss the amended complaint with prejudice and entered a
memorializing order.
Following the dismissal of their amended complaint, on November 26,
2021, plaintiffs filed a legal malpractice suit against defendant Noel E. Schablik,
and his law firm. The same day plaintiffs also filed a notice of appeal.
II.
On appeal, plaintiffs argue the trial court abused its discretion in
dismissing plaintiffs' amended complaint with prejudice and failed to follow the
procedural requirements of Rule 4:23-5.
"[T]he standard of review for dismissal of a complaint with prejudice for
discovery misconduct is whether the trial court abused its discretion, a standard
that cautions appellate courts not to interfere unless injustice has been done. "
Abtrax Pharm. Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 517 (1995); see also
Allegro v. Afton Village Corp., 9 N.J. 15, 161 (1952). An abuse of discretion
occurs when the trial court's "decision is made without a rational explanation,
inexplicably departed from established policies, or rested on an impermissible
basis." Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012)
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(quoting Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)) (internal
quotation marks omitted).
Compliance with a two-step process is required for dismissal of a
complaint under Rule 4:23-5. First, the non-delinquent party may move for
dismissal without prejudice for noncompliance with discovery obligations. R.
4:23-5(a)(1). If the motion is granted, specific procedures for serving the order
of dismissal must be followed. Ibid. Upon providing full and responsive
discovery, the delinquent party may move to vacate the dismissal without
prejudice "at any time before the entry of an order of dismissal . . . with
prejudice." Ibid.Second, if a delinquent party fails to cure its discovery delinquency, then
"the party entitled to the discovery may, after the expiration of 60 days from the
date of the order, move on notice for an order of dismissal . . . with prejudice."
R. 4:23-5(a)(2). The motion to dismiss with prejudice "shall be granted unless"
the delinquent party satisfies two requirements: (1) "a motion to vacate the
previously entered order of dismissal . . . without prejudice has been filed by the
delinquent party" and (2) "either the demanded and fully responsive discovery
has been provided or exceptional circumstances are demonstrated." Ibid. Rule
4:23-5(a) advances two objectives: (1) to compel discovery, thereby promoting
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resolution of disputes on the merits, and (2) to afford the aggrieved party the
right to seek final resolution through dismissal. St. James AME Dev. Corp. v.
City of Jersey City, 403 N.J. Super. 480, 484 (App. Div. 2008).
Plaintiffs failed to satisfy one of those two requirements under the Rule to
avert dismissal. Plaintiffs did not file a motion to vacate the previously entered
order of dismissal without prejudice. From the record, we accept that there was
a bona fide dispute concerning the sufficiency of plaintiff's interrogatory
answers.
Nevertheless, we discern from the record that plaintiffs were unaware of
their attorney's multiple missteps. Had the record shown plaintiffs were
apprised of the pending dismissal motions, we would have no hesitation in
affirming the order of dismissal with prejudice. However, plaintiffs' counsel
patently failed to comply with the obligation to inform plaintiffs of both the
Ingber and Ansell defendants' efforts to dismiss their lawsuit; and the trial
court's effort to obtain the attorney's compliance was insufficient.
We are, therefore, constrained to reverse the order dismissing the
complaint with prejudice, because plaintiffs' counsel neglected to notify them
that their lawsuit was on the verge of dismissal. Plaintiff's counsel was obliged
to serve the original order of dismissal without prejudice on plaintiffs. R. 4:23-
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5(a)(1). There is nothing in the record demonstrating that the required notice
was served. Moreover, plaintiffs' counsel was obliged to file and serve an
affidavit with the court, seven days before the return date of the motion to
dismiss with prejudice, stating that plaintiffs received the first order, and was
notified that a second motion was then pending to dismiss their cause with
prejudice. No such affidavit is in the record.
Under the Rule, the trial court was required to "take some action to obtain
compliance with the requirements of the rule before entering an order of
dismissal . . . ." A&M Farm & Garden Ctr. v. Am. Sprinkler Mech., LLC, 423
N.J. Super. 528, 539 (App. Div. 2012); R. 4:23-5(a)(3). The court noted
plaintiffs' counsel failed to file the required affidavit. We discern from the
record that plaintiffs' counsel did not provide the court with the basis for it to
make an informed decision as to whether plaintiffs' rights had been adequately
protected. A&M Farm & Garden Ctr., 423 N.J. at 539. Dismissal with prejudice
is the "last and least favorable option" available to a judge. Il Grande v.
DiBenedetto, 366 N.J. Super. 597, 624 (App. Div. 2004). Therefore, the trial
court is obliged to pay "meticulous attention . . . to those provisions which are
intended to afford a measure of protection to the party who is faced with the
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ultimate litigation disaster of termination of his cause." Zimmerman v. United
Serv. Auto. Ass'n, 260 N.J. Super. 368, 376-77 (App. Div. 1992).
We remand for the court to consider anew the Ingber defendants' motion
to dismiss the complaint with prejudice, while allowing defendants to
supplement their motion papers as they deem appropriate, and allowing
plaintiffs to file any additional supplemental papers they deem appropriate. The
court shall establish a reasonable schedule for the filing of any supplemental
papers and for oral argument on the motion. If, on remand, plaintiffs' counsel
fails to serve the original order of dismissal without prejudice on plaintiff s, see
R. 4:23-5(a)(1), or "fails to file and serve the affidavit required by [Rule 4:23-
5(a)(3)], or fails to appear on the return date of the motion to dismiss," the court
shall comply with the requirements of Rule 4:23-5(a)(3) in its disposition of the
Ingber defendants' motion.
On remand, plaintiffs' counsel's past missteps, as well as any missteps that
occur following remand, "may be adequately addressed by the imposition of
other appropriate sanctions, such as attorney's fees and costs, if deemed
appropriate by the trial court." A&M Farm & Garden Ctr., 423 N.J. Super. at
539. The trial court shall determine, in its discretion, "whether sanctions or
other conditions for reinstatement of the complaint should be imposed[,]"
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including service of complete and responsive answers to defendants' discovery
demands. Id. at 540.
Lastly, plaintiffs' counsel shall serve plaintiffs with a complete copy of
our decision by regular and certified mail within seven days of its issuance, and
shall file with the trial court, and serve on all defense counsel, a certification of
such service.
Reversed and remanded. We do not retain jurisdiction.
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