NOT FOR PUBLICATION WITHOUT THE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-2975-16T3
CHRISTIE WYSSENSKI,
Plaintiff-Appellant,
v.
CHRISTOPHER P. STATILE and
CHRISTOPHER P. STATILE, PA,
Defendants-Respondents.
Argued July 2, 2018 – Decided July 18, 2018
Before Judges Carroll and Rose.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Docket No. L-
4325-14.
George J. Cotz argued the cause for appellant.
Marc A. Raso argued the cause for respondents
(Raso Legal Group, LLC, attorneys; Marc A.
Raso, on the brief).
PER CURIAM
Plaintiff Christie Wyssenski appeals from an order dismissing
her complaint against defendants Christopher P. Statile and
Christopher P. Statile, PA with prejudice pursuant to Rule 4:23-
5(a)(2) for failure to provide discovery, and from an order denying
her motion for reconsideration. Because we cannot find on this
record that the judge abused her discretion by dismissing
plaintiff's complaint with prejudice, we affirm.
On May 17, 2014, plaintiff filed a complaint against
defendants, her former employers, alleging violations of the New
Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49, the New
Jersey Wage and Hour Law, N.J.S.A. 34:11-56a to -56a30, and the
Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -14.
Thereafter, the parties filed several discovery motions, including
motions to dismiss the complaint for discovery failures, to
reinstate the case, to compel discovery, and to quash certain
subpoenas. Since the parties are well familiar with this tortured
procedural history, we reference only the most pertinent portions
to lend context to the present appeal.
On April 14, 2015, defendants filed a motion to dismiss
plaintiff's complaint without prejudice for failure to provide
more specific answers to interrogatories and more specific
responses to requests for production. Plaintiff thereafter
provided defendants with certain information. Consequently, on
May 28, 2015, defendants withdrew their dismissal motion, without
prejudice to the right to refile it.
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On November 20, 2015, the trial court granted an extension
of the discovery end date, and set deadlines for the completion
of outstanding discovery. On February 19, 2016, the court granted
defendant's second motion to dismiss the complaint without
prejudice, based on plaintiff's failure to comply with the November
20, 2015 order.
On June 10, 2016, the court granted plaintiff's motion to
restore the case to the trial calendar, subject to payment of the
applicable restoration fee. R. 4:23-5(a)(1). The trial court
conducted a case management conference on June 17, 2016, in an
effort to move the case forward. On July 21, 2016, the parties
forwarded a revised consent order to the court, again extending
the discovery deadlines.
On August 17, 2016, defendants filed a third motion to dismiss
the complaint without prejudice. Defendants cited plaintiff's
failure to respond to defendants' third discovery demands that had
been served on February 16, 2016. Rather than resorting to the
sanction of dismissal, on September 2, 2016, the court instead
ordered plaintiff to provide certified responses to defendants'
third discovery demands within ten days. If plaintiff failed to
comply, the order directed defendants' counsel to "submit a
[c]ertification to the [c]ourt, on notice to plaintiff's counsel,
at which time this matter will be dismissed without prejudice."
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On September 21, 2016, defense counsel certified that
plaintiff failed to comply with the September 2 order. Plaintiff's
counsel replied in opposition the following day. On November 4,
2016, the court found "from the submissions of both counsel that
plaintiff has failed to comply with the [o]rder of September 2,
2016, in that she has failed to provide certified responses to
interrogatories despite having been given the opportunity to do
so." Consequently, the court entered an order again dismissing
plaintiff's complaint without prejudice pursuant to Rule 4:23-
5(a)(1).
On November 7, 2016, plaintiff moved to vacate the dismissal
order and restore the case to the trial calendar. On December 6,
2016, the court denied the motion. In a comprehensive written
statement of reasons that accompanied the order, the motion judge
chronicled the "unusually problematic" history of "discovery
disputes" that "caused this case to age unnecessarily." The judge
noted the case was then two years and seven months old, and there
had been five prior discovery extensions. The judge found
plaintiff had yet to supply certified responses to defendants'
third discovery demands. Accordingly, dismissal without prejudice
remained warranted because plaintiff's discovery responses were
deficient pursuant to Rule 4:17-4(a) (requiring interrogatories
to be answered "under oath") and Rule 4:18-1(b)(2) (requiring a
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party responding to a document production request to "swear or
certify" that the answer is "complete and accurate").
On January 3, 2017, defendants moved for dismissal with
prejudice pursuant to Rule 4:23-5(a)(2). The motion was originally
returnable on January 20, 2017. On January 23, the court entered
an order adjourning the motion to February 3, 2017. The order
directed plaintiff's counsel to appear on the return date and show
cause why the complaint should not be dismissed with prejudice,
and to comply with the requirements of Rule 4:23-5(a)(2) prior to
the hearing date.
Plaintiff and her counsel attended the February 3, 2017
hearing. Following oral argument, the court dismissed plaintiff's
complaint with prejudice, finding plaintiff had failed to cure the
discovery defaults and had not moved to vacate the previously
entered order of dismissal without prejudice. Plaintiff filed a
timely motion for reconsideration, which the court denied on March
7, 2017. This appeal followed.
On appeal, plaintiff argues the trial court abused its
discretion in dismissing the complaint rather than imposing some
less severe sanction. Plaintiff also contends the court improperly
proceeded under Rule 4:23-5, and that her improperly certified
answers to interrogatories and responses to the third demand to
produce should have been deemed acceptable. We disagree.
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"[T]he standard of review for dismissal of a complaint with
prejudice for discovery misconduct is whether the trial court
abused its discretion[.]" Abtrax Pharm. v. Elkins-Sinn, Inc., 139
N.J. 499, 517 (1995). We will decline to interfere with the
exercise of that discretion unless we view an injustice has been
done. St. James AME Dev. Corp. v. City of Jersey City, 403 N.J.
Super. 480, 484 (App. Div. 2008) (citing Cooper v. Consolidated
Rail Corp., 391 N.J. Super. 17, 23 (App. Div. 2007)).
Here, the record clearly shows the motion judge scrupulously
adhered to the procedural safeguards established in Rule 4:23-5.
The rule imposes a duty on the motion judge "to take action to
obtain compliance with the requirements of the rule." A & M Farm
& Garden Ctr. v. Am. Sprinkler Mech. LLC, 423 N.J. Super. 528, 532
(App. Div. 2012). Rule 4:23-5 codifies 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. St.
James, 403 N.J. Super. at 484. These procedural requirements must
be scrupulously followed and technically complied with. Sullivan
v. Coverings & Installation, Inc., 403 N.J. Super. 86, 95 (App.
Div. 2008).
Step one requires the party aggrieved by the delinquent
party's failure to fulfill its discovery obligations to move to
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dismiss the complaint without prejudice. R. 4:23-5(a)(1). To
ensure the delinquent party is aware of its derelictions and has
the opportunity to correct them, the rule further provides that:
Upon being served with the order of dismissal
or suppression without prejudice, counsel for
the delinquent party shall forthwith serve a
copy of the order on the client by regular and
certified mail, return receipt requested,
accompanied by a notice in the form prescribed
by Appendix II-A of these rules, specifically
explaining the consequences of failure to
comply with the discovery obligation and to
file and serve a timely motion to restore. If
the delinquent party is appearing pro se,
service of the order and notice hereby
required shall be made by counsel for the
moving party.
[R. 4:23-5(a)(1).]
Following compliance with the procedures set out in step one
of the rule, the aggrieved party may then move to dismiss the
complaint with prejudice. Rule 4:23-5(a)(2) provides that:
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 or suppression with prejudice. The
attorney for the delinquent party shall, not
later than 7 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 an 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
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whereabouts have not been able to be
determined and such service on the client was
therefore not made. If the delinquent party
is appearing pro se, the moving party shall
attach to the motion a similar affidavit of
service of the order and notices or, in lieu
thereof, a certification as to why service was
not made. Appearance on the return date of
the motion shall be mandatory for the attorney
for the delinquent party or the delinquent pro
se party. The moving party need not appear
but may be required to do so by the court.
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.
[R. 4:23-5(a)(2).]
Although we agree that the two-step procedure of Rule 4:23-5
is designed to compel the discovery rather than to dismiss the
complaint, Adedoyin v. Arc of Morris County Chapter, Inc., 325
N.J. Super. 173, 180 (App. Div. 1999); Pressler & Verniero, Current
N.J. Court Rules, cmt. 3 on R. 4:23-5 (2016), here we are satisfied
that the motion judge afforded plaintiff multiple opportunities
to provide the certified discovery responses in order to avoid
dismissal of the complaint. Given the long history of discovery
delays, we cannot find the judge abused her discretion on this
record.
Affirmed.
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CHRISTIE WYSSENSKI VS. CHRISTOPHER P. STATILE (L-4325-14, BERGEN COUNTY AND STATEWIDE)
Combined Opinion