TONY J. ORTIZ VS. WALTER S. BENKIUS (L-4318-14 AND L-4349-15, UNION 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NOT FOR PUBLICATION WITHOUT THE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-3823-16T1

TONY J. ORTIZ,

Plaintiff-Appellant,

v.

WALTER S. BENKIUS and MARK IV
TRANSPORTATION & LOGISTICS,
INC.,

Defendants-Respondents,

and

IC UNLIMITED, LLC i/p/a
IC UNLIMITED, BENTLEY TRUCK
SERVICES, INC. a/k/a BENTLEY TRUCK
SERVICES and BENTLEY TRUCKS, and
OLYMPIC NATIONAL EXPRESS,

Defendants.
___________________________________

Argued June 7, 2018 – Decided July 31, 2018

Before Judges Rothstadt and Gooden Brown.

On appeal from Superior Court of New Jersey,
Law Division, Union County, Docket Nos. L-
4318-14 and L-4349-15.

Rubin M. Sinins argued the cause for appellant
(Javerbaum Wurgaft Hicks Kahn Wikstrom &
 Sinins, PC, attorneys; Eric G. Kahn, on the
briefs).

Paul Piantino, III, argued the cause for
respondents (White & Williams LLP, attorneys;
Paul Piantino, III, of counsel; Brandon B.
Rosen, on the brief).

PER CURIAM

Plaintiff Tony J. Ortiz appeals from the April 13, 2017 Law

Division order, denying his motion for reconsideration of the

February 17, 2017 order. The February 17, 2017 order denied his

motion to reinstate his complaint, and dismissed his complaint

with prejudice, pursuant to Rule 4:23-5(a)(2), for failure to

appear for deposition. We reverse and remand.

The relevant procedural history is as follows. On March 4,

2016, the trial court entered an order consolidating plaintiff's

2014 and 2015 complaints against defendants Walter S. Benkius,

Mark IV Transportation & Logistics, Inc. (Mark IV), IC Unlimited,

LLC i/p/a IC Unlimited, Bentley Truck Services, Inc., also known

as Bentley Trucks, Olympic National Express (Olympic), and several

fictitious entities. The complaints stemmed from a December 19,

2013 automobile accident between plaintiff's car and a tractor-

trailer leased by Mark IV from Bentley Trucks and allegedly

operated by Benkius as an agent for Olympic, IC Unlimited, LLC,

2 A-3823-16T1
Mark IV, or Bentley Trucks.1 Plaintiff alleged negligence by

defendants and sought damages for the "severe bodily injuries" he

suffered as a result of the accident.

On October 25, 2016, defendants Benkius and Mark IV moved to

dismiss the complaint without prejudice pursuant to Rule 4:23-4

for plaintiff's repeated failure to attend his deposition.2 In

the supporting certification, defense counsel certified that they

attempted to depose plaintiff on six separate occasions, but each

time plaintiff requested an adjournment, despite being provided

over a month's notice of each scheduled deposition date. According

to the certification, defendant was noticed to be deposed on

1
According to defendants, by stipulation, Bentley Trucks was
dismissed from the case without prejudice. However, there is no
supporting documentation of the dismissal in the record.
2
According to Rule 4:23-4, where a "party fails to
appear . . . to take his deposition, after being served with a
proper notice, the court . . . on motion may make such orders in
regard to the failure as are just," including "tak[ing] any action
authorized under paragraphs (1), (2) and (3) of [Rule] 4:23-2(b)."
Under Rule 4:23-2(b)(1), (2), and (3), the court may enter an
order "that the matters regarding which the order was made or any
other designated facts shall be taken to be established for the
purposes of the action in accordance with the claim of the party
obtaining the order"; "refusing to allow the disobedient party to
support or oppose designated claims or defenses, or prohibiting
the introduction of designated matters in evidence"; or "striking
out pleadings or parts thereof, or staying further proceedings
until the order is obeyed, or dismissing the action or proceeding
or any part thereof with or without prejudice, or rendering a
judgment by default against the disobedient party."

3 A-3823-16T1
September 9, 2015, and February 4, April 14, May 18, July 29, and

October 12, 2016. Although defendants acquiesced to plaintiff's

adjournment requests on the first five dates, his "eleventh hour"

cancellation of the October 12 date was "without notice." Defense

counsel certified further that, despite defendants' willingness

to accommodate plaintiff's schedule, no dates were ever proposed

by plaintiff's attorney. According to defense counsel,

plaintiff's conduct "constitute[d] a deliberate attempt to evade

being deposed" that "[had] and [would] continue to prejudice

[d]efendants in defending this matter and preparing for trial."

On November 18, 2016, the motion judge granted defendant's

unopposed motion and dismissed plaintiff's complaint without

prejudice. On January 31, 2017, defendants moved to dismiss

plaintiff's complaint with prejudice for failure to attend his

depositions. In his accompanying certification, defense counsel

recounted the six unsuccessful attempts to depose plaintiff. He

certified that in the sixty days following the dismissal of the

complaint, plaintiff failed to move to reinstate the complaint or

otherwise contact defendants and failed to schedule a date for his

deposition, despite being notified of the dismissal. Defense

counsel asserted that dismissal with prejudice was therefore

appropriate under Rule 4:23-5(a)(2).

4 A-3823-16T1
 The next day, February 1, 2017, plaintiff's newly retained

attorney sent a letter to the court, opposing the motion to dismiss

the complaint. Plaintiff's attorney explained that he had been

retained on January 23, 2017, and had recently received plaintiff's

file from prior counsel. According to plaintiff's attorney, when

he received defense counsel's motion to dismiss the complaint, he

had already "prepare[d] a Motion to Restore the

Complaint . . . , to adjourn the current arbitration date[,] and

to extend discovery." He assured defendants and the court that

he would provide "any remaining discovery,

including . . . [p]laintiff's deposition," but requested "some

additional time" to "properly represent" plaintiff. He also stated

his secretary was "in the process of trying to reschedule

[plaintiff's] deposition for the month of February."

Plaintiff's motion to restore the complaint and extend

discovery and defendants' motion to dismiss the complaint with

prejudice were both returnable on February 17, 2017. In support

of plaintiff's motion, plaintiff's attorney certified that

plaintiff was "ready, willing[,] and able to appear for a

deposition," and he was prepared to schedule a date within thirty

days of the adjudication of the motion, if not sooner. On February

14, 2017, three days prior to the return date of the motions,

plaintiff's counsel sent defendants a letter suggesting three

5 A-3823-16T1
dates for plaintiff's deposition, all within two weeks of the

letter and about a week after the return date of the motions, and

even offered two different times on two of the proposed dates.

On February 17, 2017, during oral argument on the motions,

plaintiff's counsel informed the court that he had received

plaintiff's file from his previous attorney, Richard Rinaldo, who

had been "involved in a very serious car accident a few years

[earlier]" and suffered physical injuries that had "affected a

great number of cases, . . . including this one." Plaintiff's

counsel indicated that the trial in Rinaldo's personal case had

commenced in the county a few months earlier and so other judges

in the county were aware of Rinaldo's injuries. Although he

hesitated to discuss the details on the record, plaintiff's counsel

stated he would attempt to obtain a certification from Rinaldo

about the accident and argued that plaintiff should not be

prejudiced for his prior attorney's inaction.

Defense counsel countered that plaintiff's motion to restore

was deficient under Rule 4:23-5(a)(1), which required the

delinquent party to move to restore supported by an affidavit

reciting that the withheld discovery has been provided and

accompanied by payment of a restoration fee. According to defense

counsel, plaintiff's attorney had failed to do either.

Furthermore, defense counsel argued that under Rule 4:23-5(a)(2),

6 A-3823-16T1
dismissal with prejudice was mandatory unless plaintiff either

provided "fully responsive discovery" or presented "exceptional

circumstances," neither of which applied. Defense counsel pointed

out that plaintiff's attorney had not included any information

about Rinaldo's injuries in his certification in support of his

motion to restore. In fact, defense counsel represented to the

court that during their attempts to depose plaintiff, Rinaldo had

requested the adjournments, not for personal reasons, but because

his office could not locate plaintiff.

Plaintiff's counsel responded that he had filed "a vanilla

Motion to Restore, because [he] [knew] that [the]

[c]ourt . . . [was] aware of Mr. Rinaldo's situation,"3 and there

was no written opposition to his motion. He explained that, had

he been aware of the opposition, he would have submitted the

necessary certification establishing "extraordinary

circumstances."

After considering oral argument, the judge granted

defendants' motion and dismissed the complaint as to both

defendants with prejudice. Citing Abtrax Pharm., Inc. v. Elkins-

Sinn, Inc., 139 N.J. 499 (1995), the judge recognized that "the

3
The motion judge was not familiar with Rinaldo or aware of his
injuries and explained to counsel that, in any event, he could not
"rely on one [j]udge or one [c]ourt knowing the situation of an
attorney."

7 A-3823-16T1
sanction of dismissal with prejudice for discovery violations

should be imposed only sparingly," and that "clients should not

be prejudiced because of [the] delinquency of the[ir] attorney."

However, the judge determined that dismissal was appropriate

because there was "no certification from the prior attorney

indicating that it was the attorney's fault why the plaintiff

could not attend six scheduled depositions" and "no valid reason

to believe that the attorney may have had some problems." Thus,

the judge determined that no exceptional circumstances had been

demonstrated. While declining to make a finding regarding whether

plaintiff's repeated failure to appear for deposition was

deliberate, the judge concluded that defendants had a right to

depose him, and the deposition went "to the very essence of their

case." Therefore, according to the judge, dismissal was

appropriate under Rule 4:23-5.

As to plaintiff's motion to reinstate the complaint, the

judge denied the motion. In denying the motion, the judge

explained that plaintiff's motion had been before a different

judge who had granted the motion on the papers without oral

argument, but had not yet "sent out [the order] to both parties."4

Nonetheless, the judge concluded that he had the "authority to

4
We note that the order was not included in the record.

8 A-3823-16T1
hear both cases in . . . conjunction with each other" and would

"do so in the interest of justice." In denying plaintiff's motion

to restore, the judge vacated the undelivered order reinstating

the complaint.

On March 7, 2017, plaintiff moved for reconsideration. In

his supporting certification, plaintiff's counsel argued that

dismissal was inappropriate because plaintiff had provided the

outstanding discovery "in the form of a letter prior to the return

date of both [m]otions[,] offering to produce the [p]laintiff for

depositions on several alternate dates." However, he "never

received a response to [his] letter." Further, plaintiff's counsel

submitted a certification from Rinaldo, delineating exceptional

circumstances to support the motion.

In the certification, Rinaldo explained that all but the last

adjournment request "were due to litigation issues concerning the

filing of [a]nswers of [d]efendants, issues with consolidation of

the two [c]omplaints, the [d]efendant[s'] inability to produce Mr.

Benkius, and discovery issues that were not within the control of

the [p]laintiff or his attorney." According to Rinaldo, only the

last adjournment request was attributable to his personal issues,

which prompted him "to refer [the] case to another law firm for

further handling" and "request[] an adjournment . . . to allow new

counsel to be retained and time to review the file." Rinaldo

9 A-3823-16T1
noted that defendants never filed a motion to compel plaintiff's

deposition, and instead chose to "opportunistically use[] the file

transfer delay" to obtain a dismissal. Rinaldo certified further

that there was "no history of the [p]laintiff avoiding his

deposition or not being available that [he could] recall."

In opposition, defense counsel argued plaintiff's motion

"failed to articulate with specificity the basis on which he [had]

brought [his motion for reconsideration]," and, in any case, he

had failed to prove adequate grounds for reconsideration. Defense

counsel asserted their motion for dismissal was properly granted,

as plaintiff failed to comply with the requirements for

reinstatement under Rule 4:23-5. In a supporting certification,

defense counsel argued that plaintiff's February 14, 2017 letter

proposing new dates for plaintiff's deposition was "irrelevant"

and "should have no bearing on the court's decision" because it

"post-date[d] [p]laintiff's [m]otion to [r]estore by almost two

weeks," and plaintiff made no effort to schedule or attend his

deposition prior to filing the February 1, 2017 motion.

During oral argument on the reconsideration motion conducted

on April 13, 2017, plaintiff's counsel argued that the letter

proposing dates for the deposition constituted compliance with

discovery because it is impossible to "hogtie [an] adversary and

force them to take a deposition." Furthermore, he noted defendants

10 A-3823-16T1
had not argued that they had suffered prejudice due to the delay

in deposing plaintiff and "[t]here was no [m]otion to [c]ompel a

deposition." Moreover, according to plaintiff's counsel,

"plaintiff himself [was] not at fault." In response, defense

counsel noted that the case was already three years old at the

time of the hearing and that the significant delay had

"substantially prejudiced" defendants. Defense counsel also

reiterated that plaintiff's application to restore the complaint

was deficient and the discovery still had not been provided, and

therefore, the court lacked discretion to deny their motion to

dismiss the complaint with prejudice.

Following oral argument, in an oral decision, the judge denied

plaintiff's motion for reconsideration, finding that plaintiff

failed to provide "with specificity, . . . any matters that the

[c]ourt overlooked, or any controlling decisions . . . the [c]ourt

[had] erred on." The judge commended plaintiff's counsel for his

"skilled argument" that, unlike interrogatories, a plaintiff

cannot "compel a deposition." Nonetheless, the judge found the

three-year delay in obtaining plaintiff's deposition had

prejudiced defendants. Further, acknowledging Rinaldo's

supporting certification, the judge concluded there were no

exceptional circumstances, as he could not think of a "type of

medical issue[] that would prevent [plaintiff's prior counsel]

11 A-3823-16T1
from rescheduling, or sending a letter, or trying to reschedule

depositions." The judge entered a memorializing order on the same

date, and this appeal followed.

On appeal, plaintiff argues the motion judge erred by: (1)

dismissing his complaint for failing to provide his deposition

rather than "explor[ing] alternatives to dismissal with

prejudice"; (2) concluding "Rinaldo's health problems" did not

constitute "exceptional circumstances"; (3) vacating the other

judge's order granting plaintiff's unopposed motion to reinstate

the complaint and extend discovery; (4) denying plaintiff's motion

for reconsideration; and (5) not enforcing the procedural

requirements of Rule 4:23-5(a)(1) and (a)(2). Based upon our

review of the record, we conclude that the dismissal with prejudice

under Rule 4:23-5(a)(2) was an impermissible basis and, therefore,

constituted an abuse of discretion requiring reversal.

Our scope of review of a dismissal of a complaint with

prejudice for failure to make discovery is limited to whether the

trial court abused its discretion. Abtrax, 139 N.J. at 517. A

trial court abuses its discretion when the "decision [was] made

without a rational explanation, inexplicably departed from

established policies, or rested on an impermissible basis." United

States v. Scurry, 193 N.J. 492, 504 (2008) (alteration in original)

(quoting Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)).

12 A-3823-16T1
 "The dismissal of a party's cause of action, with prejudice,

is drastic and is generally not to be invoked except in those

cases in which the order for discovery goes to the very foundation

of the cause of action, or where the refusal to comply is

deliberate and contumacious." Abtrax, 139 N.J. at 514 (quoting

Lang v. Morgan's Home Equip. Corp., 6 N.J. 333, 339 (1951)).

"Since dismissal with prejudice is the ultimate sanction, it will

normally be ordered only when no lesser sanction will suffice to

erase the prejudice suffered by the non-delinquent party, or when

the litigant rather than the attorney was at fault." Ibid.

(quoting Zaccardi v. Becker, 88 N.J. 245, 253 (1982)).

The well-settled purpose of Rule 4:23-5 is to elicit

outstanding discovery "rather than to punish the offender by the

loss of his cause of action or defense." Zimmerman v. United

Servs. Auto. Ass'n, 260 N.J. Super. 368, 374 (App. Div. 1992). To

that end, to succeed on a motion to dismiss with prejudice under

Rule 4:23-5 for failure to make discovery, the moving party must

strictly comply with the requirements of the rule, id. at 373,

which "involves a two-step process." Sullivan v. Coverings &

Installation, 403 N.J. Super. 86, 93 (App. Div. 2008).

"First, the aggrieved party may move for dismissal for non-

compliance with discovery obligations," under paragraph (a)(1) of

13 A-3823-16T1
the rule, and "if the motion is granted, the complaint is dismissed

without prejudice." Ibid. Next,

If an order of dismissal . . . without
prejudice has been entered pursuant to
paragraph (a)(1) of this rule and not
thereafter vacated, the party entitled to
discovery may, after the expiration of [sixty]
days from the date of the order, move on notice
for an order of dismissal . . . with
prejudice.

[R. 4:23-5(a)(2).]

However, Rule 4:23-5(a)(1) dismissals expressly apply only

to non-compliance with discovery pursuant to Rule 4:17, pertaining

to interrogatories, Rule 4:18, pertaining to demands for

documents, and Rule 4:19, pertaining to demands for medical

examinations. It does not apply to non-compliance with discovery

pursuant to Rule 4:14, pertaining to depositions. That relief can

be sought only after a party first fails to comply with an order

to compel depositions previously issued under Rule 4:23-5(c),

which states:

Prior to moving to dismiss pursuant to
subparagraph (a)(1) of this rule, a party may
move for an order compelling discovery
demanded pursuant to [Rule] 4:14 . . . . An
order granting a motion to compel shall
specify the date by which compliance is
required. If the delinquent party fails to
comply by said date, the aggrieved party may
apply for dismissal or suppression pursuant
to subparagraph (a)(1) of this rule by
promptly filing a motion to which the order
to compel shall be annexed, supported by a

14 A-3823-16T1
 certification asserting the delinquent
party's failure to comply therewith.

Alternatively, a dismissal can be granted in the court's discretion

for failure to appear for a deposition under Rule 4:23-4, but is

not required in the same manner as prescribed in Rule 4:23-5(a)(2).

Here, as plaintiff's counsel pointed out, defendants never

moved for an order to compel plaintiff's deposition prior to moving

to dismiss pursuant to Rule 4:23-5(a)(1) and, in turn, Rule 4:23-

5(a)(2). Therefore, defendants were not entitled to a dismissal,

with or without prejudice, under Rule 4:23-5. As we stated in a

related context in Colonial Specialty Foods, Inc. v. Cty. of Cape

May, 317 N.J. Super. 207, 210 (App. Div. 1999), allowing an

aggrieved party to obtain a dismissal with prejudice under Rule

4:23-5(a)(2) after obtaining a dismissal without prejudice for a

discovery violation not encompassed in subparagraph (a)(1) of Rule

4:23-5 "would deprive a party of the procedural safeguards

incorporated throughout [Rule] 4:23-5, and overlooks the rule's

integrated structure and purpose."

Consequently, we are constrained to vacate the orders

dismissing plaintiff's complaint with prejudice, and denying

plaintiff's motions to reinstate the complaint and for

reconsideration. We remand for reconsideration under Rule 4:23-

4, mindful that "dismissal with prejudice is the ultimate

15 A-3823-16T1
sanction," and "will normally be ordered only when no lesser

sanction will suffice to erase the prejudice suffered by the non-

delinquent party . . . ." Abtrax, 139 N.J. at 514 (quoting

Zaccardi, 88 N.J. at 253). See Cummings v. Bahr, 295 N.J. Super.

374, 384 (App. Div. 1996) (holding that the decision to grant or

deny a motion for reconsideration under Rule 4:49-2 falls "within

the sound discretion of the [trial court], to be exercised in the

interest of justice") (quoting D'Atria v. D'Atria, 242 N.J. Super.

392, 401 (Ch. Div. 1990)).

Reversed and remanded for further proceedings consistent with

this opinion. We do not retain jurisdiction.

16 A-3823-16T1