On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-8730-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodriguez and Fasciale.
Plaintiff, Demetrius Johnson, appeals from the January 7, 2011 order dismissing with prejudice his lawsuit against New Jersey Manufacturers Insurance Company (NJM), and the February 18, 2011 order denying the motion to reinstate the complaint. We affirm.
The complaint alleges that Johnson bought a Breitling watch for $17,655 from the Jewelry Exchange in Wayne. The watch was appraised at a value of $19,500. Months later, Johnson purchased a men's diamond bracelet from the Jewelry Exchange for $13,375. On the same day, an appraiser valued the bracelet at $17,500. Johnson then purchased an insurance policy from NJM for the bracelet and the watch.
Johnson claims that on October 26, 2008, he was leaving Mohawk Elk Lounge in Plainfield around 1:07 a.m. when an unknown male approached him from behind and placed on object on Johnson's back. Johnson believed the object to be a knife or a gun. The man then robbed Johnson of his watch, bracelet, wallet and paycheck.
Johnson reported the incident to the Plainfield Police Department and filed a claim with NJM under his policy. NJM denied Johnson's claim because of the suspicious circumstances surrounding it. NJM noted that Johnson filed a claim for a similar watch he lost in December 2007, and NJM provided coverage for the item.
After denial of his claim, Johnson filed a lawsuit against NJM. In its answer, NJM asserted a counterclaim for violation of the New Jersey Insurance Fraud Prevention Act, N.J.S.A. 17:33A-1 to -30.
On April 1, 2010, NJM advised Johnson that his answers and response to the notice to produce were overdue. NJM did not receive a response. NJM again advised Johnson that the responses were overdue on June 3, 2010. In accordance with Rule 1:6-2(c), NJM indicated it preferred to obtain discovery without a court motion, but if Johnson did not respond to the requests, NJM would file a motion. NJM again received no response.
NJM moved to dismiss Johnson's complaint without prejudice for failure to provide discovery. The motion was unopposed and granted by Judge Edward J. Ryan. However, Johnson still did not provide any discovery or move to restore the complaint within sixty days as mandated by Rule 4:23-5.
On September 23, 2010, NJM moved to dismiss Johnson's action with prejudice. Johnson did not file an opposition within eight days of the motion's date, as required by Rule 1:6-3(a), nor did he comply with the certification requirement of Rule 4:23-5(a)(2).
On October 11, 2010, Johnson faxed answers to interrogatories to NJM. Johnson did not respond to NJM's notice to produce documents. On October 13, 2010, two days before the motion to dismiss return date, Johnson served a cross-motion to reinstate Johnson's answers to interrogatories. The judge never received a copy of this motion.
At the motion hearing, Johnson explained that both his aunt and cousin had recently passed away and he was therefore unable to complete the interrogatories and document requests. The judge concluded exceptional circumstances existed and ordered Johnson to provide fully responsive answers to NJM's ...