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Portofino Condominiums Association, Inc. v. Portofino Waterfront Urban Renewal, L.L.C.

Superior Court of New Jersey, Appellate Division

May 14, 2013

THE PORTOFINO CONDOMINIUMS ASSOCIATION, INC., Plaintiff-Respondent,
v.
PORTOFINO WATERFRONT URBAN RENEWAL, L.L.C., PORTOFINO WATERFRONT HOLDINGS, L.L.C., PEIRU WEN, EREZ BASHARI, LENNY WARSHAW, Defendants-Appellants.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 11, 2013

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1995-09.

Vito A. Gagliardi, Jr. argued the cause for appellants (Porzio, Bromberg & Newman, P.C., attorneys; Mr. Gagliardi, Jr., of counsel and on the brief; Frank A. Custode, on the brief).

Martin N. Crevina argued the cause for respondent (Buckalew Frizzell & Crevina, L.L.P., attorneys; Mr. Crevina, on the brief).

Before Judges Ashrafi and Guadagno.

PER CURIAM

Defendant Portofino Waterfront Urban Renewal, LLC, appeals from final judgment of almost $4 million entered against it by the Law Division after its pleadings were suppressed with prejudice for discovery violations. We reverse.

The court failed to follow the requirements of Rule 4:23-5(a)(2) and (3). We set forth the mandatory procedures required under the rule in Zimmerman v. United Services Automobile Association, 260 N.J.Super. 368 (App. Div. 1992), before a pleading may be dismissed or suppressed with prejudice. We recently confirmed those requirements in A & M Farm & Garden Center v. American Sprinkler Mechanical L.L.C., 423 N.J.Super. 528, 532 (App. Div. 2012), which was decided shortly after the events in this appeal. The trial court in this case failed to adhere to those requirements. Default judgment was improperly entered.

This litigation began in April 2009 when plaintiff, The Portofino Condominiums Association, Inc., filed a twelve-count complaint against several defendants.[1] The complaint stemmed from the conversion of an apartment building into a condominium administered by plaintiff. Defendants jointly filed their answer to the complaint on August 28, 2009. On October 2, 2009, plaintiff served defendants with interrogatories and requests for production of documents. The trial court entered several case management orders, the first of which ordered that defendants serve discovery responses by December 18, 2009.[2]

After substitution of counsel for defendants, the court entered another case management order on February 17, 2010, requiring that defendants serve certified answers to interrogatories within sixty days of their service upon new counsel and responses to the request for documents within thirty days of service. Plaintiff served defendants' new counsel with duplicate interrogatories and requests for production on February 22, 2010. By case management order entered May 12, 2010, the trial court set the discovery end date for November 17, 2010.

In June 2010, plaintiff provided discovery responses to defendants' discovery demands and then immediately began enforcing plaintiff's right to discovery. Plaintiff's attorney wrote to defendants' attorney on June 17, 2010, that plaintiff's discovery demands were overdue and that motion practice would follow if responses were not promptly provided. On July 22, 2010, plaintiff filed a motion pursuant to Rule 4:23-5(a)(1) to suppress defendants' answer without prejudice. Defendants did not file opposition to the motion. The court entered an order on August 27, 2010, granting plaintiff's motion and suppressing defendants' answer without prejudice.

Within sixty days of that order, on October 21, 2010, defendants served plaintiff with discovery responses. They then filed a motion to vacate suppression of their answer. Plaintiff filed opposition, arguing that the discovery provided by defendants was not adequately responsive to plaintiff's demands. The trial court held oral argument on November 16, 2010, and denied defendants' motion to vacate suppression of their answer. In a handwritten statement on its order, [3] the court explained:

By defendant's [sic] own admission at oral argument, documents requested may be available in electronic form but as of Nov. 16, 2010 defendant has been unable to cull through the hundreds of documents to properly & fully respond to plaintiff's demand. Hence, defendant has failed to demonstrate it has . . . fully & responsively ...

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