February 14, 2012
M. BEZZLER, LLC,
SIGNATURE MOMENTS, LLC, JOSEPH GALAMB AND CRAIG LEHMAN, DEFENDANTS, AND ANDREW KATZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-3708-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: June 2, 2011
Before Judges Axelrad and R. B. Coleman.
Defendants appeal from the Law Division's June 9, 2010 order granting plaintiff's application to strike the answer, suppress the defenses, and dismiss the counterclaim of defendant Andrew Katz with prejudice for failure to comply with discovery requests, and denying Katz's cross-motion to vacate the November 7, 2008 order granting the same relief without prejudice. We affirm.
Katz is a principal of defendant, Signature Moments, LLC, as are defendants Joseph Galamb and Craig Lehman. Plaintiff sued the corporate entity and the three partners as personal guarantors for early termination and breach of a commercial lease. By order of July 18, 2008, the court granted plaintiff's application to compel Galamb and Lehman to provide fully responsive answers to interrogatories within fifteen days. They did not, and by order of September 12, the court struck Galamb's and Lehman's defenses and dismissed their counterclaim. By order of October 7, final judgment was entered against them in the principal amount of $33,246.25. On October 23, final judgment by default was entered against Signature Moments, LLC in the same amount. Those parties are not involved in this appeal.*fn1
Some time prior to November 7, 2008, plaintiff filed a cross-motion to suppress Katz's defenses and dismiss his counterclaim for failure to answer interrogatories. The motion was heard by Judge Ross R. Anzaldi in connection with a motion filed by Galamb and Lehman seeking to vacate the order dismissing their pleadings and restore their pleadings to the active trial list. Judge Anzaldi recited the procedural history including the July and September orders relating to Galamb and Lehman, noting that Katz's circumstances were different because he was "served later[,]" [i]nterrogatories were served later[, and] [h]is responses were due later." The judge noted that the interrogatory answers initially provided by the other two principals "were completely inadequate" and they were given additional time to provide responsive answers, but did not, so their case was dismissed. The judge found the submissions by defendants in support of their motion were still inadequate and thus they did not meet their burden to vacate the prior order.*fn2
As to plaintiff's cross-motion, he stated, "[i]t appears that Mr. Katz'[s] answers were the very same answers which the court previously had concluded were inadequate and  needed to be corrected, made responsive. They have not." Accordingly, the judge entered the November 7, 2008 order challenged on appeal that suppressed Katz's defenses and dismissed his counterclaim without prejudice pursuant to Rule 4:23-5(a)(1).
Plaintiff's motion to suppress Katz's defenses and dismiss his counterclaim with prejudice for failure to answer discovery pursuant to Rule 4:23-5(a)(2), was denied by order of April 3, 2009, without prejudice pending appeal by Galamb and Lehman. Following dismissal of the appeal, plaintiff renewed its motion and Katz filed a cross-motion to reinstate. Following oral argument on May 20, 2010, Judge William L'E. Wertheimer found that fully responsive answers to the interrogatories had not been served by Katz as required by the Court Rules. Accordingly, he entered an order on June 9, 2010, granting plaintiff's application to strike the answer, suppress Katz's defenses and dismiss his counterclaim with prejudice and denying Katz's cross-motion to vacate the November 7, 2008 order. Final judgment by default was entered against Katz on the same date in the principal amount of $33,246.25. This appeal ensued.
On appeal, Katz argues that the court erred in dismissing his pleadings with prejudice because: (l) he produced the requested discovery in a timely manner; (2) plaintiff violated the doctrine of unclean hands as it accepted funds in settlement and then proceeded with the lawsuit; and (3) he provided sufficient proof to bar plaintiff from asserting that defendant failed to comply with the parties' agreement under the doctrine of estoppel. Based on our review of the record and applicable law, we are not persuaded by any of Katz's arguments.
The only reason the discovery request was served on Katz at a later date than on Galamb and Lehman was that he was not originally represented by defense counsel. By the time interrogatories were served on Katz, defense counsel was on notice that the answers and documentation he had provided on behalf of Galamb and Lehman were deemed deficient by the court, an order had been entered compelling fully responsive answers, and they had not provided them. Katz provided the same answers that had previously been deemed inadequate. Moreover, based on the comments by Judge Anzaldi, it is apparent defendants did not provide the questions or answers to the court to analyze in the face of plaintiff's itemized deficiencies. Thus the November 7, 2008 "without prejudice" order was properly entered pursuant to Rule 4:23-5(a)(l). At the argument before Judge Wertheimer, Katz's attorney acknowledged that his client was "relying upon the same stuff that the other defendants relied upon[.]" Katz did not create a bona fide dispute as to the sufficiency of the answers, see Zimmerman v. United Servs. Auto. Ass'n, 260 N.J. Super. 368, 377-78 (App. Div. 1992), rather he failed to serve answers to the interrogatories. Clearly more than sixty days passed from the order dismissing Katz's pleadings without prejudice, and Katz did not provide "fully responsive discovery" or demonstrate "exceptional circumstances." R. 4:23-5(a)(2). Accordingly, the court acted within its discretion in entering the June 9, 2010 "with prejudice" order.
We need not address Katz's second and third arguments as they have no relevance to the discovery orders challenged on appeal.