On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-9013-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Harris.
This appeal presents a recurrent scenario familiar to those engaged in civil litigation in the Law Division: the application of Rule 4:23-5(a)(2)'s dismissal sanction because of a pro se litigant's discovery delinquencies. Plaintiff Joan Struss, now represented by counsel, appeals from the denial of her motion for reconsideration seeking to undo the dismissal with prejudice of her legal malpractice action due to five distinct discovery delinquencies. Because we are not satisfied that our jurisprudence in this well-trodden procedural environment was followed, we reverse and remand for further proceedings.
The facts of the underlying legal malpractice action --which we need not recite -- are largely collateral to the lamentable procedural journey reflected in the record. In late October 2009, Struss's then-attorney, Giovanni De Pierro, Esq. (affiliated with the law firm of Ambrosio, De Pierro & Wernick), filed a complaint in the Law Division, Essex Vicinage, alleging that defendants committed legal malpractice. On January 6, 2010, two weeks before defendants filed an answer, Struss and an individual named Sal Basso wrote to De Pierro "terminating the services of [his] office effective immediately."*fn1 This termination was not communicated to the court, defendants, or defendants' attorney until several months later.
On February 3, 2010, defendants served De Pierro with a "First Set of Interrogatories and Initial Demand for Production of Documents." Responses to the notice to produce were due on or about March 3, 2010, and the interrogatories on April 3, 2010.
In the interim -- unbeknownst to defendants and their attorney -- Struss commenced a separate action against De Pierro and his law firm seeking "emergent injunctive relief" in the Law Division, Essex Vicinage, for the release of her file and the return of her unused retainer. In order to pursue De Pierro and his law firm, Struss retained the legal services of Anthony F. Malanga, Jr. (her counsel on appeal) of Gaccione, Pomaco & Malanga, P.C.
On March 4, 2010, Judge Paul J. Vichness entered an order requiring De Pierro to release Struss and Basso's "entire files and related documents" by March 12, 2010. Judge Vichness also ordered that De Pierro execute a substitution of attorney in favor of Malanga for the within action within two days "of a request for such substitution being made."
De Pierro submitted a certification in the instant case contending that he made "repeated requests" that Struss and Basso "retrieve their file" from him. De Pierro also stated that "[o]n [March 12, 2010,] [he] indicated that [Struss and Basso's] files were available in [his] office."
On March 16, 2010, Malanga advised De Pierro that before he would substitute as counsel, he would need to review Struss's litigation file. The next day, Malanga wrote De Pierro that due to a medical emergency affecting Basso, the "appointment to inspect the files will be delayed."
Meanwhile, on the malpractice litigation front, defendants had not received either answers to interrogatories or documents responsive to the notice to produce, for obvious reasons. Not being aware of the machinations taking place in the independent file-retrieval litigation, defendants filed a motion to dismiss Struss's complaint without prejudice for failure to provide discovery pursuant to Rule 4:23-5(a)(1). The motion was unopposed and on April 30, 2010, a different Law Division judge entered an order dismissing Struss's complaint without prejudice.
On May 13, 2010, De Pierro, knowing that he was no longer Struss's attorney (although he was still the attorney of record for the malpractice litigation because a substitution of attorney had not yet been filed), filed a motion on her behalf to (1) vacate the April 30 order of dismissal and (2) ...