NOT FOR PUBLICATION WITHOUT THE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-0273-17T3
RONALD GRINBLAT,
Plaintiff-Appellant,
v.
ROBERT B. SIMON and
ELIZABETH M. SIMON,
Defendants-Respondents.
___________________________
Argued October 11, 2018 – Decided October 23, 2018
Before Judges Koblitz, Currier, and Mayer.
On appeal from Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-0184-16.
Ronald Grinblat, appellant, argued the cause pro se.
Andrew G. Toulas argued the cause for respondents
(Harwood Lloyd, LLC, attorneys; Andrew G. Toulas,
of counsel; Paul E. Kiel, on the brief).
PER CURIAM
Plaintiff Ronald Grinblat appeals from an August 4, 2017 order dismissing
his complaint with prejudice in accordance with Rule 4:23-5(a)(2). We affirm.
By way of background, plaintiff filed a personal injury action against
defendants Robert B. Simon and Elizabeth M. Simon. Defense counsel served
discovery on plaintiff who was then, and still is, self-represented. The discovery
propounded by defendants included Form A Interrogatories, Supplemental
Interrogatories, a Notice to Produce, and a Demand for Admissions.
Because plaintiff failed to respond to these discovery requests, defendants
filed a motion to dismiss plaintiff's complaint without prejudice in accordance
with Rule 4:23-5(a)(1). Plaintiff did not oppose defendant's motion, and the
motion was granted on March 31, 2017.
Defendant served the March 31, 2017 order on plaintiff by regular and
certified mail.1 On July 19, 2017, because plaintiff did not provide the
outstanding discovery or move to reinstate his complaint, defendants moved to
dismiss the complaint with prejudice in accordance with Rule 4:23-5(a)(2).
Plaintiff filed opposition to this motion, confirming he received the required
1
Plaintiff does not deny receipt of defendants' motion to dismiss or the order
dismissing his complaint without prejudice.
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notices preceding defendants' application for dismissal with prejudice of his
pleading.
In opposing the dismissal with prejudice of his complaint, plaintiff argued
defendants' motions were defective. The motion judge, in a written statement
of reasons, rejected plaintiff's arguments and granted the motion to dismiss the
complaint with prejudice. The judge determined plaintiff did not provide fully
responsive discovery within the sixty-day period following the dismissal
without prejudice, and failed to show exceptional circumstances to excuse his
failure to provide outstanding discovery. The judge acknowledged plaintiff
claimed to have provided discovery prior to the March 31, 2017 order. However,
the judge found plaintiff "provide[d] no documentation of serving discovery."
Even as of the return date of the motion to dismiss the complaint with prejudice,
plaintiff had not provided a copy of his discovery responses to defense counsel
or the court. The judge also explained plaintiff cited "no external factors that
would have substantially interfered with [plaintiff's] ability to fulfill his
discovery obligations."
On appeal, plaintiff asserts the same arguments presented to the motion
judge. Plaintiff argues the judge erred in dismissing his complaint with
prejudice because defendants' dismissal motions were defective.
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We review the dismissal of plaintiff's complaint against defendants for an
abuse of discretion. Abtrax Pharm., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 517
(1995). Generally, we "defer to a trial judge's discovery rulings absent an abuse
of discretion or a judge's misunderstanding or misapplication of the law."
Capital Health Sys., Inc. v. Horizon Healthcare Servs., Inc., 230 N.J. 73, 79–80
(2017).
In accordance with Rule 4:23-5(a)(2), plaintiff appeared before the court
on August 4, 2017 to argue why his claims should not be dismissed with
prejudice. The judge afforded plaintiff an opportunity to prove he provided
complete responses to defendants' discovery demands. Alternatively, plaintiff
was given a chance to explain any exceptional circumstances to avoid dismissal
of his complaint with finality.
There is no evidence plaintiff responded to discovery as propounded by
defendants. Plaintiff's certification in opposition to defendants' motion to
dismiss with prejudice stated he "provided defendants' attorney . . . with two
HIPPA forms, medical information, pictures taken at the scene and an incident
report." Plaintiff also told the judge during oral argument that he believed
defense counsel already had the information.
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Plaintiff never certified he provided answers to interrogatories, produced
all documents responsive to defendants' notice to produce, or responded to
defendants' request for admissions. Nor did plaintiff offer any explanation to
excuse his non-compliance with discovery. Plaintiff cannot selectively respond
to duly served discovery requests.
Having reviewed the record, we are satisfied the judge did not abuse his
discretion based on plaintiff's failure to provide the requested discovery or
explain why he was unable to do so. Plaintiff was aware of his discovery
deficiencies upon receipt of defendants' motions to dismiss his complaint and
failed to cure those discovery delinquencies or otherwise respond prior to his
mandatory appearance before the court on August 4, 2017.
Affirmed.
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