LEGACY AT MOUNTAIN LAKES CONDOMINIUM ASSOCIATION, INC. VS. JOSEPH D. MECCIA (DC-001952-18, MORRIS 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NOT FOR PUBLICATION WITHOUT THE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-1222-18T2

LEGACY AT MOUNTAIN LAKES
CONDOMINIUM ASSOCIATION,
INC.,

Plaintiff-Respondent,

v.

JOSEPH D. MECCIA,

Defendant-Appellant.
______________________________

Submitted December 18, 2019 – Decided January 24, 2020

Before Judges Whipple and Gooden Brown.

On appeal from the Superior Court of New Jersey, Law
Division, Morris County, Docket No. DC-001952-18.

Joseph D. Meccia, appellant pro se.

Hill Wallack LLP, attorneys for respondent (Jonathan
Katz, of counsel and on the brief).

PER CURIAM
 Defendant Joseph Meccia appeals from a September 10, 2018 Law

Division order, striking his answer with prejudice and entering default against

him, and an October 17, 2018 order, denying his motion to vacate the default.

We affirm.

We glean the following salient facts from the record. As the owner of a

condominium unit located at 23 Park Place in Mountain Lakes, defendant is a

member of plaintiff Legacy at Mountain Lakes Condominium Association, Inc.,

a condominium association established pursuant to the New Jersey

Condominium Act, N.J.S.A. 46:8B-1 to -38. As a member, under the

Association's Master Deed and By-Laws, defendant is obligated to

contribute toward the expenses of the administration,
maintenance, repair[,] and replacement of the common
elements, . . . and the expenses of administering and
maintaining the Association and all of its real and
personal property in such amounts as are . . . found by
the Association to be necessary. . . .

[T]he amount of monies for common expenses deemed
necessary by the Association's Board of Trustees . . .
and the manner of expenditure thereof, shall be a matter
for the sole discretion of the Board.

In February 2018, defendant failed to pay his common expense

assessments and ignored plaintiff's demands for payment. As a result, on March

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19, 2018, plaintiff filed a complaint in the Special Civil Part for $6098,1

representing the delinquent assessments, late fees, attorneys' fees and costs. On

April 30, 2018, acting pro se, defendant filed an answer and counterclaim for

$3410, representing the amount defendant alleged he had been overcharged by

plaintiff since 2011 for building maintenance expenses. Accompanying his

answer, defendant filed a motion "to permit discovery." In his supporting

certification, defendant explained that "[f]or years, [p]laintiff has ref used to

provide detail or answer questions as to what comprises monetary charges

applied to [him]."

Defendant demand[ed] that the [c]ourt order [p]laintiff
to provide: identification of square footage for all units
as well as allocation percentage for all unit owners of
the association; budgets for all years of association
existence, identification as to who prepared and
approved each budget, and bills associated with budget
items exclusively charged to residents of 23 Park Place,
access to all other accounting and business records[.]

On May 15 and 16, 2018, plaintiff filed an answer to defendant's

counterclaim and opposition to defendant's motion, respectively. Regarding the

latter, plaintiff asserted "there [was] no reason for th[e] [c]ourt to enter an order

permitting discovery" because "[p]ursuant to [Rule] 6:4-3, defendant has the

1
We round all monetary amounts to the nearest dollar.
A-1222-18T2
3
right to conduct discovery . . . and [plaintiff would] respond to any properly

served discovery requests within the time period allowed by the [r]ules o f

[c]ourt."2 On June 18, 2018, the court denied defendant's motion for discovery

and ordered defendant to "comply with court rules."

On June 26, 2018, plaintiff moved to strike defendant's answer without

prejudice "for failure to provide discovery." In his supporting certification,

plaintiff's counsel averred that plaintiff "served defendant with its [f]irst [s]et of

[i]nterrogatories and a [f]irst [r]equest for [p]roduction of [d]ocuments" on May

16, 2018. When defendant failed to respond within the appropriate time frame,

counsel advised defendant by letter that if the "responses were not forthcoming

by June 25, 2018," a motion to strike would be filed. Counsel certified that

"[d]espite demand," defendant failed to "produce[] the requested discovery[,]"

and plaintiff was "not in default of any discovery obligation owed to defendant."

On July 6, 2018, defendant opposed the motion, certifying that he had

"ignored" plaintiff's discovery request because he believed that "one must

receive permission from the [c]ourt to conduct [d]iscovery." According to

defendant, once he received the June 18, 2018 order denying his motion to

2
Rule 6:4-3 delineates the modes of discovery available in the Special Civil
Part without leave of court, including interrogatories and document production.
A-1222-18T2
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permit discovery, and realized that permission from the court was not required,

he only had "[two] business days to provide a response to [p]laintiff[,]" which

was "not possible" given "the volume of [p]laintiff's request," and defendant's

personal responsibilities working two jobs and caring for his elderly, disabled

father. Defendant offered to "provide responses piecemeal" and was open to

"reach [an] agreement as to [a] completion date." Defendant also accused

plaintiff of "stalling and delaying the[] proceedings," explaining that plaintiff

was "fully aware that should th[e] motion be approved," it would only "result in

[defendant] filing for reinstatement and the whole process restarting, causing

more delays."

On the same date, July 6, 2018, defendant also moved to strike plaintiff's

pleadings with prejudice "for failure to provide discovery." In support,

defendant certified that while his motion to permit discovery had been denied,

his "discovery request was clearly defined" in his moving papers and, "per

[c]ourt [r]ules," was "valid" and "due on June 14, 2018." Plaintiff's counsel

countered "defendant did not serve any discovery requests on [plaintiff] as

required by the [c]ourt [r]ules."

On July 10, 2018, the court entered an order granting plaintiff's motion,

and striking defendant's answer without prejudice. The order stated defendant

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was "required to comply with the requirements of [Rule] 4:23-5 and [Rule] 6:4-

6 in order to have his pleadings reinstated[.]" On July 20, 2018, the court entered

another order denying defendant's motion to strike plaintiff's pleadings.

Over forty-five days later, on August 27, 2018, when defendant failed to

provide discovery and failed to move for reinstatement, plaintiff moved to strike

defendant's answer with prejudice. In a supporting certification, plaintiff's

counsel averred that after the court entered the July 10, 2018 order striking

defendant's answer without prejudice, "[a] true and correct copy of the [c]ourt's

order . . . along with th[e] firm's transmittal letter . . . dated July 18, 2018, as

well as a Notice to Pro Se Party pursuant to [Rule] 4:23-5(a)(1) and [Rule] 6:4-

6(c)" were sent to defendant. According to counsel, "[d]espite demand,

defendant has not produced the requested discovery or moved to reinstate his

answer[,]" and plaintiff was "not in default of any discovery obligation owed to

defendant."

On September 10, 2018, the court entered an order granting plaintiff's

motion, striking defendant's answer with prejudice, and entering default against

defendant. One day later, on September 11, 2018, defendant submitted his

untimely opposition to plaintiff's motion, raising for the first time that plaintiff

"ha[d] failed to comply with the Condominium Act" because it "provided no

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alternative dispute resolution [ADR] procedure" and its by-laws "provide[d] no

[ADR] procedure for the resolution of housing-related disputes as required by

the Condominium Act." Defendant requested the court "deny [p]laintiff's

motion and [c]ompel [p]laintiff to provide [ADR] to [d]efendant before

commencing legal proceedings as required by law[,]" and correct the record to

reflect that "[p]laintiff's motion was []opposed."

On October 3, 2018, defendant moved to vacate the default and "correct

the record." In his supporting certification, defendant asked the court to

"reconsider its decision," or, in the alternative, "accept[] [his] response to

[p]laintiff's motion" as filed in time, and correct the record accordingly.

Defendant explained that the late filing was attributable to his personal

responsibilities but made no mention of his failure to comply with plaintiff's

discovery requests. Plaintiff opposed the motion, certifying that "[t]o date,

defendant has still not provided any response to [plaintiff's] discovery requests."

On October 17, 2018, the court entered an order denying defendant's

motion. The order explained that "defendant ha[d] not complied with discovery

since May of 2018 and ha[d] failed to set forth any rationale for same."

Additionally, "defendant ha[d] not complied with the dictates of [Rule] 4:23-5

as it pertains to his failure to make discovery." On October 31, 2018, the court

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granted plaintiff's unopposed motion for judgment, and entered default judgment

against defendant for $8822, plus costs and interest. This appeal followed.

On appeal, defendant raises the following points for our consideration:

I. TRIAL COURT ERRED BY NOT REQUIRING
[ADR] AS REQUESTED BY DEFENDANT,
MANDATED BY STATUTORY AND CASE LAW,
AND ADMITTED TO BY PLAINTIFF.

II. TRIAL COURT ERRED BY DENYING
DEFENDANT DISCOVERY (NOT RAISED
BELOW).

III. TRIAL COURT ERRED BY PROVIDING
PLAINTIFF UNJUST ENRICHMENT.

IV. TRIAL COURT ABUSED ITS DISCRETION
(NOT RAISED BELOW).

V. TRIAL COURT ERRED BY DENYING
DEFENDANT DUE PROCESS AND THE DEFAULT
JUDGMENT SHOULD BE OVERTURNED (NOT
RAISED BELOW).3

Our scope of review of a dismissal or suppression of pleadings with

prejudice for failure to provide discovery is limited to whether the trial court

abused its discretion. Abtrax Pharm., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499,

3
We decline to consider the issues not presented to the trial court because they
neither "go to the jurisdiction of the trial court [n]or concern matters of great
public interest." Kvaerner Process, Inc. v. Barham-McBride Joint Venture, 368
N.J. Super. 190, 196 (App. Div. 2004) (quoting Nieder v. Royal Indem. Ins. Co.,
62 N.J. 229, 234 (1973)).
A-1222-18T2
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517 (1995). We will decline to interfere with the exercise of that discretion

"unless it appears that an injustice has been done." St. James AME Dev. Corp.

v. City of Jersey City, 403 N.J. Super. 480, 484 (App. Div. 2008) (quoting

Cooper v. Consol. Rail Corp., 391 N.J. Super. 17, 23 (App. Div. 2007)).

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

"rather than to punish the offender . . . ." 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 provide

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

In step one, "the aggrieved party may move for dismissal for non-

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

"if the motion is granted, the [pleading] is [suppressed] without prejudice." Ibid.

Rule 4:23-5(a)(1) dismissals expressly apply to non-compliance with discovery

requests pursuant to Rule 4:17, pertaining to interrogatories, and Rule 4:18,

pertaining to demands for documents.

To ensure the delinquent party is aware of its
derelictions and has the opportunity to correct them, the
rule further provides that:

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 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.

[Thabo v. Z Transp., 452 N.J. Super. 359, 369-70 (App.
Div. 2017) (quoting R. 4:23-5(a)(1)).]

Thus, "[w]hen a party is appearing pro se, it is the responsibility of the attorney

representing the moving party to ensure that the pro se litigant has been provided

with service of the order and proper notice." Id. at 370.

In step two,

[i]f an order of . . . suppression without prejudice has
been entered pursuant to paragraph (a)(1) of this rule
and not thereafter vacated, the party entitled to the
discovery may, after the expiration of [sixty] days from
the date of the order, move on notice for an order of . . .
suppression with prejudice. . . . The motion to . . .
suppress with prejudice shall be granted unless a
motion to vacate the previously entered order of . . .
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.

A-1222-18T2
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 [R. 4:23-5(a)(2).]

Pursuant to Rule 6:4-6, which applies "[t]he . . . Rule 4:23[]sanctions for failure

to make discovery[] . . . to actions in the Special Civil Part," "the [sixty] -day

period prescribed by [Rule] 4:23-5(a)(2) is reduced to [forty-five] days." R. 6:4-

6(c).

In step two, as in step one, when the delinquent party is pro se, Rule 4:23-

5(a)(2) requires the attorney for the moving party to "file and serve an affidavit

reciting that the [delinquent pro se party] 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 . . . suppress

with prejudice[,]" or "file an affidavit explaining why service was not made."

Thabo, 452 N.J. Super. at 371. Under the rule, while "[t]he moving party need

not appear" unless "required to do so by the court[,]" "[a]ppearance on the return

date of the motion shall be mandatory for the . . . delinquent pro se par ty." R.

4:23-5(a)(2).

"These procedural safeguards are intended to 'ensure that the defaulting

litigant is aware . . . of [the] consequences'" of the order of suppression. Thabo,

452 N.J. Super. at 371 (quoting Pressler & Verniero, Current N.J. Court Rules,

cmt. 1.2 on R. 4:23-5 (2020)). "Judges are entrusted to ensure that these rules

A-1222-18T2
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are properly and fairly enforced[,]" ibid., and "to take action to obtain

compliance with the requirements of the rule." A & M Farm & Garden Ctr. v.

Am. Sprinkler Mech. L.L.C., 423 N.J. Super. 528, 532 (App. Div. 2012).

Here, the record clearly shows that plaintiff's counsel adhered to the

procedural requirements established in Rule 4:23-5. Notably, in step two of the

two-step process, plaintiff's counsel filed the requisite affidavit, and provided

defendant with the form letter, as prescribed by Appendix II-B, notifying

defendant that if the "motion [was] granted," his "answer [would] be stricken

and judgment by default may be entered against [him]." Further, the form letter

advised defendant that his "appearance" was "mandatory[,]" and he would be

"afforded the opportunity to explain any exceptional circumstances that may . . .

preclude the [c]ourt from granting the relief requested."

Unfortunately, the court notice conflicted with plaintiff's counsel's

notification and advised defendant that his appearance was not necessary

because "no oral argument ha[d] been requested." "However, nothing in Rule

4:23-5(a)(2) . . . suggests that a [party] is automatically entitled to vacation of

an order of [suppression] simply because the trial court . . . failed to comply

with all the procedural requirements of Rule 4:23-5(a)(2)." Feinsod v. Noon,

272 N.J. Super. 248, 251 (App. Div. 1994). But see Thabo, 452 N.J. Super. at

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369 (stressing Rule 4:23-5's "procedural requirements must be scrupulously

followed and technically complied with."). Indeed, "[i]f we allowed [the

defaulting litigant's] non-appearance on the return date of the motion to frustrate

the intent of the rule, there would be no means by which the rule could be

enforced." Leon v. Parthiv Realty Co., Inc., 360 N.J. Super. 153, 155 (App. Div.

2003).

We are satisfied the court did not abuse its discretion by striking

defendant's answer with prejudice. Nothing in this record indicates defendant

was unaware of the motion or its consequences, which is the primary purpose of

Rule 4:23-5(a)(2)'s procedural requirements. Instead, defendant's opposition to

plaintiff's motion, albeit untimely, demonstrates his awareness. Moreover,

defendant never moved to reinstate his answer, failed to provide "fully

responsive discovery" and failed to demonstrate "exceptional circumstances" as

required under Rule 4:23-5(a)(2) to forestall an order of suppression with

prejudice. Defendant simply continued to ignore plaintiff's duly served

discovery requests, and never attempted to cure the discovery deficiency.

Pursuant to Rule 4:43-3, "the court may set aside an entry of default" for

"good cause shown," and courts are obligated to liberally indulge applications

for relief from defaults. See N.J. Div. of Youth & Family Servs. v. M.G., 427

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N.J. Super. 154, 171 (App. Div. 2012). Like discovery motions, a Rule 4:43-3

motion is addressed to the sound discretion of the trial court, which should be

guided by equitable principles in determining whether relief should be granted

or denied. See O'Connor v. Altus, 67 N.J. 106, 129 (1975). In our review of the

court's exercise of its discretion, we do not "decide whether the trial court took

the wisest course, or even the better course, since to do so would merely be to

substitute our judgment for that of the lower court. The question is only whether

the trial judge pursued a manifestly unjust course." Gittleman v. Cent. Jersey

Bank & Tr. Co., 103 N.J. Super. 175, 179 (App. Div. 1967), rev'd on other

grounds, 52 N.J. 503 (1968).

Applying this standard, we are satisfied the court did not err in denying

defendant's motion to vacate the default. While defendant attributed his

untimely opposition to plaintiff's Rule 4:23-5(a)(2) motion to his personal

responsibilities, he made no mention of his failure to comply with plaintiff's

discovery requests, which had been outstanding for approximately five months.

Indeed, defendant gave no explanation for his non-compliance, nor any

indication of an intention to correct the deficiency. Thus, the court properly

determined defendant failed to show any cause, much less good cause, to justify

vacating the default.

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 Defendant argues the court erred in denying his request for ADR.4

However, as a defaulting party, defendant's participation in the litigation was

severely limited. "Where the adversarial nature of the proceeding has been

thwarted by a party's default, we strip away that party's rights to participate one

by one so as not to prejudice the plaintiff and to punish the contumacious party."

Jugan v. Pollen, 253 N.J. Super. 123, 134 (App. Div. 1992). To that end,

"discretion is placed in the trial court concerning the extent of the sanctions to

be visited upon a defendant whose default has been entered as a result of

noncooperation in the discovery process." Id. at 133.

Here, we discern no abuse of discretion in the court's rejection of

defendant's untimely ADR request. "Generally, should an appropriate party seek

ADR under N.J.S.A. 46:8B-14(k) after suit is filed, absent some compelling

circumstances, the trial judge should dismiss the matter without prejudice and

require it be submitted for [ADR]." Rabinowitz, 390 N.J. Super. at 164.

However, "there may certainly be instances in which the trial judge, in an

4
Contrary to defendant's argument, "submission to ADR is not a prerequisite
to suit, but once a suit is filed, the respondent in the action may seek to have the
matter sent to ADR under the [Condominium Act]." Finderne Heights Condo.
Ass'n v. Rabinowitz, 390 N.J. Super. 154, 163-64 (App. Div. 2007).
A-1222-18T2
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appropriate exercise of discretion, may refuse to . . . send it to alternate dispute

resolution." Ibid. Such compelling circumstances obtain herein.

Defendant also argues "the court, in effect, denied [him] discovery" by

denying his discovery motion "[forty-nine] days after the motion was filed and

[eighteen] days after the expiration of [d]efendant's right to request discovery ,"

and "[t]here is no stipulation in the court rules for the tolling of time with regards

to discovery requests." On the contrary, pursuant to Rule 6:4-5, discovery

shall be completed . . . within [ninety] days of the date
of service of . . . defendant's answer, unless on motion
and notice, and for good cause shown, an order is
entered before the expiration of said period enlarging
the time for such proceedings to a date specified in the
order.

Based on the service of defendant's answer, the discovery end date was July 30,

2018, over ten days after the entry of the June 18, 2018 order denying

defendant's discovery motion and ordering him to comply with court rules.

Defendant made no attempt to comply with the court rules and made no

application to extend the discovery end date.

Defendant suggests he did not serve or respond to discovery requests

because he misunderstood the process. However, defendant's "status as a pro se

litigant in no way relieves [him] of [his] obligation to comply with the court

rules[.]" Venner v. Allstate, 306 N.J. Super. 106, 110 (App. Div. 1997). While

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"[l]itigants are free to represent themselves if they so choose, . . . in exercising

that choice they must understand that they are required to follow accepted rules

of procedure promulgated by the Supreme Court to guarantee an orderly

process." Tuckey v. Harleysville Ins. Co., 236 N.J. Super. 221, 224 (App. Div.

1989). Indeed, "[p]rocedural rules are not abrogated or abridged by [a litigant's]

pro se status." Rosenblum v. Borough of Closter, 285 N.J. Super. 230, 241 (App.

Div. 1995).

We have considered defendant's remaining arguments in light of the

record and applicable legal principles and conclude they are without sufficient

merit to warrant further discussion. R. 2:11-3(e)(1)(E).

Affirmed.

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