Chryssoula Arsenis v. Edward Frank ( 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NOT FOR PUBLICATION WITHOUT THE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-0443-22
CHRYSSOULA ARSENIS,
Plaintiff-Appellant,
v.
EDWARD FRANK,
DR. MATTHEW D. GEWIRTZ,
DR. JAMES P. MCMENAMIN,
DR. TRACY GINSBURG, and
RICHARD HURD INVESTOR,
Defendants-Respondents.
____________________________
Submitted September 11, 2024 – Decided September 17, 2024
Before Judges Rose and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-3828-21.
Chryssoula Arsenis, appellant pro se.
Biancamano & Di Stefano, PC, attorneys for
respondents (James Passantino, on the brief).
PER CURIAM
Plaintiff Chryssoula Arsenis appeals from an October 7, 2022 Law
Division order dismissing her complaint with prejudice for failure to provide
discovery pursuant to Rule 4:23-5(a)(2). Because we cannot conclude on this
record that the motion judge abused his discretion by dismissing plaintiff's
action, we affirm.
The underlying facts are not pertinent to our resolution of the issues raised
on this appeal. We summarize instead the relevant procedural history from the
limited record provided on appeal, noting at all stages of litigation before the
trial court and this court, plaintiff has been self-represented.
In June 2021, plaintiff filed a complaint against her commercial
condominium association's board members and property manager for consumer
fraud, common law fraud, unjust enrichment, and negligent misrepresentation.
Defendants timely answered, asserted defenses, and propounded on plaintiff a
notice to produce documents and interrogatories.
Plaintiff thereafter provided certain information in response to defendants'
discovery demands, which defendants deemed inadequate.1 On October 8, 2021,
defendants sent plaintiff two deficiency letters, detailing their objections to:
1
Plaintiff's appellate appendix neither includes defendants' discovery requests
nor her initial responses to those requests.
A-0443-22
2
interrogatories five, eight, fourteen, and eighteen through twenty-one; and
document requests one through eleven. Defendants demanded fully responsive
answers to these interrogatories and document requests within two weeks to
avoid motion practice.
Plaintiff failed to respond to the deficiency letters; defendants moved to
compel more specific responses to their demands. On February 18, 2022, the
court considered defendants' motion on the papers and issued an order, granting
defendants' application and requiring plaintiff to provide more specific
responses within seven days pursuant to Rule 4:23-5(c). In a handwritten
revision to defendants' form of order, the court elaborated as to how plaintiff
should address each of the requested interrogatories 2:
4 and 14 – provide expert contact information and
general subject matter of anticipated reports/opinions.
8, 18[ – ] all documents now known to plaintiff must be
identified and produced now, with reference to the
interrogatory document demand to which they refer.
19, 20, and 21[ – ] plaintiff recites "elements of
common law fraud" without reference to specific facts
and does not address unjust enrichment or negligent
misrepresentation.
2
The court also corrected an apparent scrivener's error, noting defendants
objected to interrogatory number five – not interrogatory number four as
indicated in their form of order and deficiency letter.
A-0443-22
3
Plaintiff failed to comply with the February 18 order. Accordingly, on
June 16, 2022, the court granted defendants' ensuing motion to dismiss her
complaint pursuant to Rule 4:23-5(a)(1).
Sometime in August 2022, plaintiff moved to reinstate her complaint
asserting she complied with the February 18 and June 16 orders. At some point,
the matter was assigned to the present motion judge. On September 9, 2022, the
judge denied plaintiff's opposed motion on the papers. In his statement of
reasons, the judge found plaintiff failed to comply with both prior orders "and
otherwise provide good cause to vacate dismissal of the case and restoration to
the active trial calendar."
Defendants thereafter moved to dismiss plaintiff's complaint with
prejudice pursuant to Rule 4:23-5(a)(2). Following argument on October 7,
2022, the judge issued an oral decision, granting defendants' motion. The judge
noted notwithstanding the prior court's explicit direction to plaintiff, she failed
to comply with the February 18 and June 16 orders. The judge therefore found
no basis to disturb those orders. Satisfied defendants complied with the
temporal requirements of the rule and plaintiff failed to present any new
arguments, the judge dismissed plaintiff's complaint with prejudice.
In her overlapping arguments on appeal, plaintiff asserts: the motion
judge failed to rule on the disputed adequacies of her answers to interrogatories;
A-0443-22
4
she cured any alleged deficiencies "multiple times" before her complaint was
dismissed with prejudice; and the judge failed to make findings of fact and
conclusions of law. For the first time on reply, plaintiff asserts – without
elaborating – "exceptional circumstances hindered [her] ability to fully comply
with the court's orders." We are not persuaded.
Well-settled principles guide our review. "[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 St. James AME Dev. Corp. v. City of
Jersey City, 403 N.J. Super. 480, 484 (App. Div. 2008).
Dismissal of a complaint under Rule 4:23-5 follows a two-step process.
Initially, the non-delinquent party may move for dismissal without prejudice for
noncompliance with discovery obligations. R. 4:23-5(a)(1). 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.Secondly, if a delinquent party fails to cure its discovery delinquency, "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.
A-0443-22
5
4:23-5(a)(2). The motion to dismiss with prejudice must be granted unless: (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 resolution of disputes on the merits, and (2) to afford the aggrieved
party the right to seek final resolution through dismissal. See St. James AME
Dev., 403 N.J. Super. at 484. We have recognized in the context of sanctions
for discovery violations, dismissal of a claim for failure to comply with
discovery is the "last and least favorable option." Il Grande v. DiBenedetto, 366
N.J. Super. 597, 624 (App. Div. 2004).
In the present matter, although plaintiff moved to vacate the without-
prejudice dismissal order, she has not demonstrated she provided "fully
responsive discovery" or presented any circumstances, let alone "exceptional
circumstances," to avoid dismissal of her action with prejudice under Rule 4:23-
5(a)(2). Nor are we persuaded by her contention that the motion judge failed to
carefully scrutinize her discovery responses before dismissing her complaint
with prejudice, when the record clearly establishes the first court carefully
detailed the deficiencies in plaintiff's discovery responses and plaintiff failed to
A-0443-22
6
cure those deficiencies. See Adedoyin v. Arc of Morris Cnty. Chap., Inc., 325
N.J. Super. 173, 181 (App. Div. 1999).
We therefore conclude the ultimate sanction imposed was neither unjust
nor unreasonable. See Abtrax, 139 N.J. at 514. Accordingly, we discern no
basis to disturb the order under review.
To the extent not addressed, plaintiff's remaining contentions lack
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
We simply add the motion judge's decision did not inhibit our review or
otherwise contravene Rule 1:7-4. See Salch v. Salch, 240 N.J. Super. 441, 443
(App. Div. 1990).
Affirmed.
A-0443-22
7