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Cairoli v. Kaufman


August 6, 2009


On appeal from Superior Court of New Jersey, Law Division, Bergen County, L-5545-07.

Per curiam.


Submitted July 22, 2009

Before Judges Reisner and Sapp-Peterson.

Plaintiff Kathleen Cairoli appeals from a trial court order dated September 12, 2008, denying her motion to restore her medical malpractice complaint against defendants Dr. Bruce Kaufman and River Drive Surgery Laser Center (River Drive). We reverse and remand for further proceedings consistent with this opinion.


This is what happened. Plaintiff filed a complaint on July 25, 2007, alleging that Dr. Kaufman committed malpractice in administering anesthesia to plaintiff during cataract surgery. Plaintiff filed a timely affidavit of merit, but failed to provide timely answers to either defendant's uniform interrogatories. Accordingly, on defendants' motions pursuant to Rule 4:23-5(a)(1), plaintiff's complaint was dismissed without prejudice, by orders dated April 11, 2008 as to River Drive and February 26, 2008 as to Kaufman.

On June 2, 2008, Kaufman filed a motion to dismiss with prejudice, returnable June 20, but withdrew the motion after plaintiff served Kaufman with the interrogatory answers. Apparently due to the severe illness of a paralegal in the offices of plaintiff's attorney, and the attorney's failure to properly supervise the paralegal, copies of the interrogatory answers were never served on River Drive.*fn1 Plaintiff's attorney also failed to file a motion to restore the complaint against Kaufman, even though Kaufman had actually received the necessary discovery.

On or about July 23, 2008, River Drive filed a motion returnable August 15, seeking dismissal of the complaint with prejudice due to plaintiff's continuing failure to provide interrogatory answers. By motion dated August 6, 2008, Kaufman cross-moved for an order dismissing the complaint with prejudice. In his certification, Kaufman's attorney admitted receiving interrogatory answers; instead he based his motion on "plaintiff's failure to adhere to the strict requirements of R. 4:23-5(a)(2)" in that counsel had not filed a motion to vacate the prior order of dismissal without prejudice.

On August 8, 2008, plaintiff's counsel sent a letter to River Drive's counsel enclosing interrogatory answers dated June 19, 2008, and explaining that due to problems with a paralegal, the answers were inadvertently only served on counsel for Kaufman. He also explained that he was not previously aware of River Drive's with-prejudice dismissal motion, because a secretary had mis-filed it. The letter copied Kaufman's attorney, promised to promptly file a motion to restore the complaint, and asked both counsel to withdraw their dismissal motions. Both defense counsel declined to do so.

By letter faxed to the court and all counsel on August 14, 2008, plaintiff's counsel requested an adjournment of the dismissal motions. The letter represented to the court that interrogatory answers had been served on both defendants and that plaintiff was about to file a motion to restore the complaint:

We request an... adjournment as we are in the process of filing a Cross Motion to restore this matter to the active trial calendar. Plaintiff's answers to Interrogatories have been furnished to both counsel. The restoration of this matter within the time period was an oversight as the paralegal who has been working on this file has been suffering from an illness which prevented her from carefully supervising the work of her secretarial staff. By letter of August 8, 2008 to defense counsel, we requested that they withdraw their motions, however, the same has not been done at this point.

By letter dated August 15, 2008, and faxed to the court and counsel, Kaufman's attorney opposed the adjournment request.

By separate orders each dated August 15, 2008, the court granted as "unopposed" Kaufman's and River Drive's motions to dismiss the complaint with prejudice. Neither order recited compliance with Rule 4:23-5(a)(2), which requires that the attorney for the defaulting party must "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" with the order of dismissal without prejudice and with notice of the pending motion to dismiss with prejudice. Ibid. Nor did the orders recite compliance with the Rule's requirement that "[a]ppearance on the return date of the motion shall be mandatory for the attorney for the delinquent party." Ibid. See also R. 4:23-5(a)(3). The River Drive order was not served on plaintiff's counsel until August 21, 2008. The record does not disclose whether or when the Kaufman order was served on plaintiff's counsel.

By motion dated August 19, 2008, plaintiff filed a motion to vacate the earlier without-prejudice dismissal orders and to restore the complaint. With the motion, counsel also tendered the required restoration fees pursuant to R. 4:23-5(a)(1). Plaintiff's attorney filed a certification which provided essentially the same explanation contained in his letter. He apologized to the court and counsel "for this mistake" and asked the court to restore the complaint. The certification asserted that plaintiff's "meritorious complaint... should not be prejudiced because of my paralegal's problems."

On September 12, 2008, the trial court denied the motion noting as reasons:

Matter closed on 8/15/08. Motion to restore not filed within 10 days. Blaming "paralegal" for work that should be done by a lawyers is not "excusable neglect."


We review the trial court's decision on the reinstatement motion for abuse of discretion. See Sullivan v. Coverings & Installation, Inc., 403 N.J. Super. 86, 93 (App. Div. 2008). However, we also bear in mind that the purpose of Rule 4:23-5 is to enforce discovery requirements, and that dismissal of a complaint with prejudice is a drastic remedy which should be avoided where a lesser sanction will suffice. See St. James AME Dev. Corp. v. City of Jersey City, 403 N.J. Super. 480, 484 (App. Div. 2008); Zimmerman v. United Serv. Auto. Ass'n, 260 N.J. Super. 368 (App. Div. 2002).

In Zimmerman, after discussing the requirements of Rule 4:23-5(a)(2), that counsel for the defaulting party must appear in response to a motion for dismissal with prejudice, we reasoned as follows:

As we understand the rule, then, there are at least three prerequisites to the entry of an order of dismissal with prejudice which were not met here. First, although defense counsel complained in his supporting certification on his cross motion that a number of interrogatories had not been adequately answered, he did not certify, as required by R. 4:23-5(a)(3), that he had consulted with counsel in an effort to obtain acceptable answers prior to making the cross motion. Second, there is nothing to indicate notice to the plaintiff by his attorney of defendant's with-prejudice cross motion. Finally, it is clear that if the client is afforded an opportunity to appear and if the attorney is mandated to appear, the motion is not subject to waiver of oral argument and consequent decision on the papers.


In sum, we are satisfied that achievement of the salutary scheme of the revised rule requires meticulous attention to its critical prescriptions, and particularly to those provisions which are intended to afford a measure of protection to the party who is faced with the ultimate litigation disaster of termination of his cause. Those provisions were not complied with here, and hence the order of dismissal with prejudice was improvidently granted. [Id. at 376-77 (citations omitted and emphasis added).]

In Sullivan, supra, we discussed the provisions of Rule 4:23-5(a)(2) in the context of a motion to re-open a previous without-prejudice dismissal in a case where plaintiff had not yet provided the required discovery. We construed the Rule as follows:

That Rule 4:23-5 contemplates technical compliance with its two-step process, at least by the moving party, is confirmed in the very language of the rule. As previously stated, there is no provision in this rule for the automatic dismissal of a complaint with prejudice where reinstatement is not sought. Nor does the rule require that a defendant seek a dismissal with prejudice. Rather, the rule expressly permits a plaintiff, whose complaint has been dismissed without prejudice under section (a)(1), to seek restoration of the complaint at any time prior to its dismissal with prejudice.

Construed in this manner, Rule 4:23-5 continues to reflect the ultimate objective to encourage resolution of disputes on the merits. The Trust Co. of New Jersey v. Sliwinski, 350 N.J. Super. 187, 192 (App. Div. 2002) (citing Aujero v. Cirelli, 110 N.J. 566 (1988)). At the same time, the rule affords a party aggrieved by dilatory discovery tactics a remedy to compel production of the outstanding discovery and the right to seek final resolution through the two-step dismissal process. [Sullivan, supra, 403 N.J. Super. at 95-96.]

Turning to the case before us, we reach the following conclusions. First, we agree with the trial court's comment concerning counsel's inappropriate attempt to blame a paralegal for failing to file motions and serve discovery. However, in the circumstances of this case, we conclude that it was a mistaken exercise of discretion not to adjourn the August 15 motions, to grant those with-prejudice dismissal motions, and to deny the motion to restore the complaint.

We consider these factors significant: First, plaintiff had provided the discovery prior to the return date of the dismissal motions. In that connection, plaintiff's counsel had requested an adjournment of those motions, representing to the court that he had provided the discovery and that he intended to file a motion to vacate the without-prejudice dismissal orders. Second, there was no compliance with the critical requirements of notice to plaintiff and personal appearance by plaintiff's counsel at oral argument of the dismissal motions. Rather, the August 15, 2008 motions were granted as "unopposed," without argument.

In this case, while we in no way condone counsel's admitted oversights, a less-drastic approach than dismissal was available. Procedurally, the trial court should have adjourned the dismissal motions to allow plaintiff to file the restoration motion, and should have required oral argument of the motions. On the merits, the court should have reinstated the complaint and imposed sanctions on plaintiff's counsel. We conclude that was the appropriate course here, where the discovery was provided prior to the hearing of the with-prejudice dismissal motions (and in Kaufman's case was actually provided before he filed his motion), and where there was no evidence that defendants were prejudiced by the delay. See St. James, supra, 403 N.J. Super. at 486 (reinstatement should be permitted where plaintiff provides discovery prior to the hearing on its motion to reinstate complaint).

For those reasons, we vacate the two orders dated August 15, 2008 dismissing the complaint with prejudice; we reverse the order dated September 12, 2008 denying plaintiff's motion to restore the complaint; and we remand this case to the trial court to determine the appropriate sanctions to be paid by plaintiff's counsel, which shall include defendants' counsel fees for the trial court motion practice and for this appeal. See R. 2:11-4; R. 4:23-5(a)(1).

Reversed and remanded.

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