On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-8627-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 16, 2009
Before Judges Fisher and Espinosa.
Plaintiffs appeal from an order dismissing their complaint with prejudice pursuant to Rule 4:23-5(a)(2) and denying their motion to reinstate the complaint. Among the discovery deficiencies alleged was plaintiffs' failure to provide any expert reports, a failure that was not cured prior to the date the motion to dismiss with prejudice was argued. We affirm.
The plaintiffs are Kyung Chan Choi and Myung J. Shin, and their minor daughter, Sharon Choi. Their claims arise from their contention that the negligence of defendant, their landlord, resulted in a mold condition that caused them to suffer severe and permanent injury. Their complaint, filed on November 26, 2007, alleged negligence; an unconscionable commercial practice in violation of the Consumer Fraud Act; a breach of the warranty of habitability; and that the landlord failed to return the security deposit. The case was assigned to Track 2, with a three-hundred-day discovery period. The original discovery end date was December 2, 2008.
Defendant promptly served its first discovery demands: a demand for answers to Uniform Interrogatories Form A served with its answer on February 6, 2008; a similar demand with its amended answer on February 15, 2008; and a first demand for production of documents on February 14, 2008.
Plaintiffs did not provide answers to interrogatories by their March 7, 2008 due date. Defendant sent letters on March 11 and April 7, 2008, advising plaintiffs' counsel of their failure and asking that answers be provided. Receiving no response, defendant sent a third letter on April 23, 2008, advising that unless answers were received by May 1, 2008, a motion would be filed without further effort to resolve the discovery issue.
Defendant filed a motion to compel discovery on May 7, 2008 that was returnable on May 23, 2008. However, upon receipt of plaintiffs' answers to interrogatories on May 12, 2008, defendant withdrew its motion.
By letter dated July 10, 2008, defense counsel advised plaintiffs' counsel of deficiencies in the answers to the Form A Interrogatories, specifically to Interrogatories 13, 14, 15, 22 and 23, and the request for expert discovery. In addition, defendant served a second demand for production of documents and requested that plaintiffs provide authorizations for the release of medical records.
By letter dated August 19, 2008, defense counsel advised plaintiffs' counsel of the continuing deficiencies in plaintiffs' discovery obligations and warned that continued non-compliance would result in a motion being filed.
Defendant filed a second motion to compel discovery on September 17, 2008, returnable October 10, 2008. The motion sought an order, pursuant to Rule 4:23-5(c), compelling plaintiffs to provide complete or more specific answers to Uniform Form A Interrogatories 13, 14, 15, 22 and 23 by a date certain and to provide documents demanded in the second demand for production of documents by a date certain. The motion was unopposed.
Before the return date, plaintiffs provided authorizations for the release of medical records. By letter dated October 6, 2008, defense counsel advised that the authorizations were unacceptable because: they appeared to be signed by the same person; Section B on all of the authorizations was not initialed; and the authorization on behalf of the minor child did not identify the name and relationship of the person who signed on her behalf. Defense counsel also advised that he would not withdraw the motion to compel in light of the continuing failure to provide responses to Interrogatories 14, 15, 22 and 23.
On October 14, 2008, defendant's motion to compel discovery was granted. The order required plaintiffs to provide answers to Uniform Form A Interrogatories 13, 14, 15, 22 and 23 and to produce documents responsive to the second demand ...