YOLANDA AYALA-BARRETO VS. KIMBERLY BARRETO (L-3636-16, PASSAIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4050-17T3
YOLANDA AYALA-BARRETO,
Plaintiff-Appellant,
v.
KIMBERLY BARRETO and
GERMAN L. GONZALEZ,
Defendants-Respondents.
Argued January 16, 2019 – Decided April 12, 2019
Before Judges Alvarez and Nugent.
On appeal from Superior Court of New Jersey, Law
Division, Passaic County, Docket No. L-3636-16.
Michael K. Fielo argued the cause for appellant.
Laura M. Gifford argued the cause for respondent
Kimberly Barreto (Law Offices of Styliades and
Jackson, attorneys; Roma M. Patel, on the brief).
Richard J. Giannone argued the cause for respondent
German L. Gonzalez (Cooper Maren Nitsberg Voss &
DeCoursey, attorneys; Richard J. Giannone, of counsel
and on the brief).
PER CURIAM
Plaintiff Yolanda Ayala-Barreto appeals from two orders dismissing her
personal injury complaint with prejudice for failure to make discovery. The
judge dismissed as to defendant German L. Gonzalez on December 4, 2017, and
as to Kimberly Barreto on April 17, 2018. Ayala-Barreto also appeals from a
separate April 17, 2018 order, which denied her application for reconsideration.
Ayala-Barreto sought damages from personal injuries sustained in an
automobile accident. We now reverse.
Our decision should not be construed as rewarding dilatory participation
in the discovery process. Had Ayala-Barreto's counsel responded to discovery
requests in a timely manner, conscientiously monitored the e-filing system in
which earlier motions for dismissal without prejudice had been filed and granted
unopposed, or responded to courtesy notifications by his adversaries, this appeal
would be unnecessary. Counsel states that his failure to file written opposition
to Barreto's motion to dismiss with prejudice resulted from being informed by
chambers that a judge was unavailable due to illness, the motion would not be
heard until the judge's return, and he was "instructed to await the outcome of the
pending motion for reconsideration . . . ." This puzzling explanation was not,
from our review of the record, presented to the Law Division judge who heard
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the motions—and if not, its inclusion in Ayala-Barreto's appellate brief was
improper.1 The practice of law is guided by relevant precedent, rules, and
legislative enactments—not conversations with court staff. The delay
occasioned by these missteps has been substantial—the automobile accident at
issue took place on July 3, 2015, nearly four years ago.
Defendants strenuously argue on appeal that the judge did not abuse his
discretion in dismissing the complaint with prejudice because of Ayala-Barreto's
failures to comply with discovery and related procedural rules. In their view,
the ultimate sanction of dismissal with prejudice is warranted because of these
oversights.
None of the briefs mention the fact Rule 4:23-5 "codified a two-step
procedural paradigm that must be strictly adhered to before the sanction of
dismissal of a complaint with prejudice for failing to answer interrogatories or
provide other discovery can be imposed." Thabo v. Z Transp., 452 N.J. Super.
359, 369 (App. Div. 2017) (citing St. James AME Dev. Corp. v. City of Jersey
City, 403 N.J. Super. 480, 484 (App. Div. 2008)). The burden falls upon the
motion judge to take steps to attempt to compel counsel to comply with the
requirements of the rule. Ibid.
1
Additionally, we see no certification to that effect in the appendix.
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There can be no doubt that defendants were entitled to make the
applications they filed. However, Rule 4:23-5(a)(2) states:
[t]he attorney for the delinquent party shall, not later
than [seven] days prior to the return date of the motion,
file and serve an affidavit reciting that the client was
previously served as required by subparagraph (a)(1)
and has been served with additional notification, in the
form prescribed by Appendix II-B, of the pendency of
the motion to dismiss or suppress with prejudice. In
lieu thereof, the attorney for the delinquent party may
certify that despite diligent inquiry, which shall be
detailed in the affidavit, the client's whereabouts have
not been able to be determined and such service on the
client was therefore not made. . . . Appearance on the
return date of the motion shall be mandatory for the
attorney for the delinquent party. . . . The motion to
dismiss or suppress with prejudice shall be granted
unless a motion to vacate the previously entered order
of dismissal or suppression without prejudice has been
filed by the delinquent party and either the demanded
and fully responsive discovery has been provided or
exceptional circumstances are demonstrated.
The rule further provides:
[i]f 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.
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[Rule 4:23-5(a)(3) (emphasis added).]
In other words, the court must ensure counsel informs his or her client of
the likelihood that pleadings are about to be dismissed with prejudice. Yet the
motions to dismiss with prejudice were both decided on the papers, in the
absence of any oral argument or appearance by Ayala-Barreto's counsel, or the
filing of any documentation, as specified in Rule 4:23-5(a)(3), verifying that the
client was notified of the pending proceedings.
The rule's procedural safeguards are designed to "ensure that the
defaulting litigant is aware that the order of dismissal or suppression without
prejudice has been entered and of its consequences." Thabo, 452 N.J. Super. at
371 (citing Pressler & Verniero, Current N.J. Court Rules, cmt. 1.2 on R. 4:23-5
(2017)). The "[d]iscovery rules are intended to create a level playing field for
all litigants and promote the resolution of civil dispute[s] on the merits. Judges
are entrusted to ensure that these rules are properly and fairly enforced." Ibid.
Since these steps were not followed, we vacate the dismissals and reinstate
the complaint. Ayala-Barreto's counsel contends discovery and the appropriate
authorizations have now been provided. We therefore remand the matter to the
Law Division for a case management conference to be conducted at which a new
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discovery end date, if necessary, is to be fixed, and a schedule created for
dispositive motions and trial.
Reversed and remanded. We do not retain jurisdiction.
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