JI SUNG KIM VS. PAUL P. KOBLISKA (L-3773-15, 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NOT FOR PUBLICATION WITHOUT THE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-4540-16T4

JI SUNG KIM,

Plaintiff-Appellant,

v.

PAUL P. KOBLISKA,

Defendant-Respondent.
_____________________________

Submitted June 6, 2018 – Decided July 10, 2018

Before Judges Currier and Geiger.

On appeal from Superior Court of New Jersey,
Law Division, Union County, Docket No. L-3773-
15.

Andrew Park, PC, attorneys for appellant
(David M. Wasserman, on the brief).

Hoagland, Longo, Moran, Dunst & Doukas, LLP,
attorneys for respondent (Aron Mandel, of
counsel and on the brief).

PER CURIAM

Plaintiff Ji Sung Kim appeals from two May 12, 2017 orders:

(1) dismissing the complaint with prejudice for failure to provide
discovery and (2) denying his motion to reinstate the complaint

to the active trial list. We affirm.

We glean the following facts from the record. Plaintiff

sustained injuries in a motor vehicle accident occurring on April

15, 2015, when the vehicle he was driving collided with a vehicle

driven by defendant Paul P. Kobliska. Plaintiff initiated this

action on November 4, 2015.

Defendant filed an answer, separate defenses, and a demand

for discovery on December 9, 2015. The demand for discovery

included standard form interrogatories, supplemental

interrogatories, and a notice to produce, which demanded plaintiff

produce executed authorizations to obtain his medical and

prescription records. Despite multiple requests from defense

counsel, plaintiff did not provide any discovery responses,

resulting in defendant filing a series of motions to enforce

plaintiff's discovery obligations.

Defendant moved to dismiss the complaint without prejudice

for failing to answer interrogatories and produce documents. While

the motion was pending, plaintiff produced uncertified discovery

responses. In response to the demand for pharmacy records,

plaintiff objected, claiming the request was overly broad.

Defendant advised the court, in addition to not being certified,

plaintiff's discovery responses were not based upon personal

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knowledge. On September 2, 2016, the trial court denied the motion

to dismiss but ordered plaintiff to provide certified answers to

the interrogatories within ten days. Plaintiff did not comply

with the order.

Defendant then moved to dismiss the complaint for failure to

provide certified answers to interrogatories in violation of the

prior order. While the motion was pending, plaintiff produced

additional discovery, which, again, was not certified. On October

18, 2016, the trial court denied defendant's motion to dismiss

because defendant did not timely serve the prior order on

plaintiff. The court ordered plaintiff to certify all discovery

by October 31, 2016.

On November 15, 2016, defendant demanded more specific

answers to interrogatories and sought clarification of plaintiff's

objection to producing his pharmacy records; defendant asked

plaintiff to clarify whether it was the subject matter

(prescription records) or the time period (past ten years) to

which plaintiff objected. In the event the objection was based

on the time period of the records sought, defendant requested

plaintiff authorize the release of the pharmacy records he found

unobjectionable. Plaintiff responded by indicating he would

provide the more specific information during his deposition.

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 On December 2, 2016, the trial court extended discovery to

July 3, 2017, and ordered plaintiff to provide more specific and

complete answers to interrogatories and document requests by

December 15, 2016. Plaintiff did not comply with the order.

On January 31, 2017, after receiving no additional discovery

from plaintiff, defendant moved, for a second time, to dismiss the

complaint with prejudice pursuant to Rule 4:23-2(b)(3) for failure

to comply with the December 2, 2016 order. On February 17, 2017,

the trial court dismissed the complaint without prejudice.

While the motion was pending, plaintiff supplied additional

uncertified responses. As part of the responses, plaintiff's

counsel stated: "Upon information and belief, [p]laintiff has not

had any prescriptions for the last 10 years."

However, on March 6, 2017, plaintiff supplied additional

discovery responses, in which he disclosed, for the first time,

he had received prescription medication from a Costco Pharmacy.

On the same day, plaintiff moved to reinstate the complaint.

During oral argument, plaintiff's counsel represented she would

supply the remaining discovery, including the authorization for

the Costco Pharmacy records, within one week. Plaintiff failed

to do so. As a result, on April 13, 2017, the trial court denied

plaintiff's motion to reinstate the complaint without prejudice.

The court noted plaintiff filed his motion before he had complied

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with discovery demands and his discovery deficiencies had resulted

in three motions to dismiss.

Meanwhile, on April 11, 2017, some 488 days after the

discovery requests were propounded, plaintiff finally provided

certified answers to the interrogatories and supplemental

interrogatories and executed authorizations for numerous medical

providers and an employer. However, the authorizations were, in

part, improperly prepared. The authorization for KSK Line

authorized the release of medical records rather than employment

records. The authorization for Affinity Radiology authorized the

release of employment records rather than medical records.

Plaintiff did not provide an executed authorization for the Costco

Pharmacy records. As a courtesy, defendant supplied corrected

authorizations to plaintiff's counsel.

Consequently, plaintiff had still not provided fully

responsive discovery, having failed to provide correct

authorizations for KSK Line, Affinity Radiology, and Costco

Pharmacy. We further note these providers and employer had not

been disclosed in plaintiff's initial discovery responses.

Defendant moved to dismiss the complaint with prejudice for failure

to provide discovery within sixty days of the order dismissing the

complaint without prejudice. Plaintiff opposed the motion and

cross-moved to reinstate the complaint and extend discovery.

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Contrary to plaintiff's counsel's certification, fully responsive

discovery responses were not attached. Plaintiff had still not

provided an executed authorization for Costco Pharmacy.

On the return date, two attorneys appeared for oral argument

for plaintiff. The motion judge noted plaintiff's attorneys argued

inconsistent positions. One argued the Costco Pharmacy

authorization had been sent to defense counsel. The other argued

plaintiff could not provide the executed authorization because the

wrong form had been provided. Notably, the executed authorization

for Costco Pharmacy records is not included in the record.

The defense maintained its position that plaintiff had still

not provided the executed authorization for Costco Pharmacy.

Defense counsel explained, although he received a transmittal

letter, the authorization was not enclosed. Defense counsel noted

the executed authorization was supposed to be attached as Exhibit

C to the certification submitted by plaintiff's counsel, but it

was not attached. When confronted with this discrepancy by the

motion judge, plaintiff's counsel stated the authorization was not

attached because of a computer outage in their office on the day

the papers had to be sent out. When the judge asked if plaintiff's

counsel had a copy with them, counsel admitted they did not.

Defense counsel also indicated plaintiff had not disclosed

six or seven treating physicians named in the Personal Injury

6 A-4540-16T4
Protection benefit records. Additionally, plaintiff's answers to

interrogatories stated he was unemployed, when, in fact, he was

employed by KSK Line from May 2015 to October 2016 and by Shin Ju

Line starting in October 2016.

The motion judge concluded plaintiff had not provided the

executed Costco Pharmacy authorization to defense counsel, finding

plaintiff's counsel had stretched the court's "credulity to the

limits." She stated plaintiff's counsel had submitted "a lot of

documents and statements" that the court could not rely on,

referring to a prior certification of one person that had been

incorrectly executed by a different person and two motions to

reinstate the complaint despite not complying with discovery

requests. The judge concluded she could not rely on the

representations made by plaintiff's counsel in light of their

inconsistent arguments. In contrast, the judge found defense

counsel's statements credible.

The trial court dismissed the complaint with prejudice and

denied plaintiff's cross-motion, noting plaintiff had failed to

provide the delinquent discovery prior to filing the motion to

reinstate the complaint even though ample time was given to comply.

The court found the motion to reinstate did not comply with the

rules since discovery was still not complete.

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 Expressing frustration with plaintiff's repeated failures to

provide certified answers to discovery and comply with court

orders, the court stated it had no confidence that the situation

would not repeat itself even if it denied the motion to dismiss

with prejudice, granted the motion to reinstate, and ordered

plaintiff to pay sanctions. Instead, the court believed it would

"be in the same situation" again, noting it "has just been a

disaster the way this case has been conducted," causing defendant

to suffer an "injustice." Plaintiff did not seek reconsideration.

This appeal followed.

On appeal, plaintiff argues the trial court abused its

discretion in dismissing the complaint with prejudice rather than

compelling plaintiff to produce the remaining pharmaceutical

records authorization. Plaintiff contends defendant's motion

should have been treated as a motion to compel discovery rather

than a motion to dismiss with prejudice. Relying on an unpublished

opinion, plaintiff argues Rule 4:23-5 only permits dismissal with

prejudice for failing to provide the specific discovery leading

to the prior dismissal without prejudice.1 Plaintiff asserts the

earlier dismissal without prejudice was made in regard to a failure

1
Unpublished opinions do not constitute precedent, are not
binding upon any court, Rule 1:36-3, "and cannot reliably be
considered part of our common law,” Trinity Cemetery v. Wall Tp.,
170 N.J. 39, 48 (2001) (Verniero, J., concurring).

8 A-4540-16T4
to answer interrogatories, whereas the motion to dismiss with

prejudice pertained to a failure to provide certain

authorizations.

We review the dismissal of a complaint with prejudice for

discovery misconduct for abuse of discretion, "a standard that

cautions appellate courts not to interfere unless an injustice

appears to have been done." Abtrax Pharms., Inc. v. Elkins-Sinn,

Inc., 139 N.J. 499, 517 (1995) (citations omitted). We find no

such abuse of discretion in this matter.

The trial court's findings are amply supported by the record.

Plaintiff repeatedly failed to provide basic discovery to

defendant despite multiple extensions and court orders.

Plaintiff's conduct caused a "months-long discovery impasse,"

substantially delaying discovery and necessitating a series of

discovery enforcement motions, causing defendant to incur

attorney's fees and costs, and the trial court to expend judicial

resources.

Plaintiff offers no explanation for the protracted failure

to provide responsive discovery and to comply with discovery rules

and court orders. He does not claim he was delayed in providing

discovery by illness, disability, or inaccessibility to the

information sought.

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 Particularly troubling is the basic nature of the discovery

at issue. This is a simple personal injury action arising out of

a motor vehicle accident. Standard form interrogatories and

authorizations to obtain records from medical providers,

pharmacies, and employers do not present difficult discovery

obligations. Here, there is no suggestion that obtaining

plaintiff's signature on the authorizations and the information

necessary to answer the interrogatories was thwarted by

circumstances beyond plaintiff's control.

Our court rules and case law do not permit a party to

flippantly ignore their discovery obligations and court orders.

Rule 4:23-5 provides for a two-step sanction process if a demand

for discovery pursuant to Rule 4:17 or Rule 4:18 is not complied

with. St. James AME Dev. Corp. v. City of Jersey City, 403 N.J.

Super. 480, 484 (App. Div. 2008); Pressler & Verniero, Current

N.J. Court Rules, cmt. 1.1 on R. 4:23-5 (2018). The first step

is dismissal without prejudice under Rule 4:23-5(a)(1). The second

step is dismissal with prejudice under Rule 4:23-5(a)(2).

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 the
discovery may . . . move on notice for an
order of dismissal . . . with prejudice. . .
. The motion to dismiss or suppress with
prejudice shall be granted unless a motion to
vacate the previously entered order of

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 dismissal . . . 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).]

Rule 4:23-1 authorizes a trial court to enter orders

compelling discovery of authorizations for medical and employment

records. Among the remedies the trial court may impose is an

order "dismissing the action or proceeding or any part thereof

with or without prejudice." R. 4:23-2(b)(3).

Additionally, "[a] trial court has inherent discretionary

power to impose sanctions for failure to make discovery, subject

only to the requirement that they be just and reasonable in the

circumstances." Abtrax Pharms., 139 N.J. at 513 (quoting Calabrese

v. Trenton State Coll., 162 N.J. Super. 145, 151-52 (App. Div.

1978), aff'd, 82 N.J. 321 (1980)); see also Lang v. Morgan's Home

Equip. Corp., 6 N.J. 333, 338 (1951). Applying these standards,

we conclude the motion judge did not err by dismissing the

complaint with prejudice.

Plaintiff did not comply with the December 2, 2016 order

compelling him to provide more specific and complete answers to

interrogatories and document requests by December 15, 2016. A

February 17, 2017 order dismissed the complaint without prejudice

for failure to comply with the December 2, 2016 order. Plaintiff

11 A-4540-16T4
did not move to reinstate the complaint within sixty days, instead

waiting until May 4, 2017, to file his cross-motion. By not

supplying an executed authorization for the Costco Pharmacy

records, plaintiff failed to produce "fully responsive discovery,"

as required by Rule 4:23-5(a)(2). See Fik-Rymarkiewicz v. Univ.

of Med. and Dentistry of N.J., 430 N.J. Super. 469, 482 (App. Div.

2013). Accordingly, the court did not err by denying

reinstatement.

Plaintiff did not demonstrate "exceptional circumstances" to

allow for reinstatement of his complaint. Ibid. To the contrary,

no excuse at all was offered. Accordingly, dismissal with

prejudice was appropriate. See Pressler & Verniero, cmt. 1.3 on

R. 4:23-5 ("Otherwise, the motion for dismissal or suppression

with prejudice is required to be granted unless fully responsive

answers have been served by the time of the return date or, as

formerly, extraordinary circumstances are demonstrated.").

We are satisfied that, throughout the course of pretrial

discovery, "plaintiff demonstrated contumacious behavior, ignored

court orders, and obstructed discovery of information that is

directly relevant" to his personal injury claim. Fik-

Rymarkiewicz, 430 N.J. Super. at 471. Considering the totality

of the circumstances, the sanctions imposed were not unjust or

12 A-4540-16T4
unreasonable. We conclude the motion judge did not abuse her

discretion and affirm the dismissal with prejudice.

Affirmed.

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