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Winberry Realty Partnership v. Borough of Rutherford

Superior Court of New Jersey, Appellate Division

August 9, 2013

BOROUGH OF RUTHERFORD, CARYN MILLER, in her official and individual capacities, Defendants-Respondents, and STEVEN KRISCH, in his individual capacity, Defendant.


Argued February 27, 2013

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-7126-10.

G. Martin Meyers argued the cause for appellants.

Thomas B. Hanrahan argued the cause for respondents Borough of Rutherford and Caryn Miller(Thomas B. Hanrahan & Associates, L.L.C., attorneys; Mr. Hanrahan, of counsel and on the brief; Nathaniel Brand, III, on the brief).

Before Judges Nugent and Haas.


Plaintiffs Winberry Realty Partnership, John Winberry, Mary Lourdes Winberry, Celeste Winberry, and Gregory Winberry appeal from the March 29, 2012 Law Division order that dismissed their complaint with prejudice pursuant to Rule 4:23-5(a)(2) for failure to make discovery. We reverse and remand.


This is the relevant procedural history. On July 22, 2010, plaintiffs filed a six-count complaint against defendant Borough of Rutherford, its tax collector, Caryn Miller, and the assistant chief of the State's Office of Foreclosure, Stephen[1] M. Krisch.[2] In their complaint, plaintiffs alleged that defendants had unlawfully obstructed their efforts to redeem a tax certificate the Borough filed after plaintiffs stopped paying taxes on property they owned in the Borough; that a final judgment of foreclosure was entered, but subsequently vacated, at considerable cost to plaintiffs; and that they suffered severe emotional distress during the process. The first three counts of the complaint alleged that defendants violated plaintiffs' civil rights under the United States and New Jersey Constitutions. The fourth count alleged that the Borough negligently trained its tax collectors, the fifth count that the Borough breached a duty to exercise reasonable care and good faith in the administration of its duties, and the sixth count alleged a cause of action for intentional infliction of emotional distress. On June 15, 2011, eleven months after plaintiffs filed their complaint, the court denied the defendants' motion to dismiss counts one through three and five, but granted their motion to dismiss the tort claims alleged in counts four and six because plaintiff had not filed a tort claims notice as required by the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3.

Meanwhile, on May 17, 2011, one month before the court decided the dismissal motions, defendants served plaintiffs with interrogatories and a notice to produce documents. Four months later, on September 16, 2011, the court granted defendants' motion to dismiss plaintiffs' complaint pursuant to Rule 4:23-5(a)(1) for failing to make discovery. On October 13, 2011, plaintiff served discovery responses, including 709 Bates- stamped documents, and thereafter moved to reinstate the complaint. The complaint was reinstated.[3]

On October 20, 2011, after receiving plaintiffs' interrogatory answers, defendant served supplemental interrogatories, which plaintiffs answered on January 10, 2012. Thereafter, defendants served two additional notices to produce documents on January 5 and March 2, 2012, which plaintiffs answered on June 15 and June 21, 2012.

On December 27, 2011, defendants filed a motion to dismiss plaintiffs' complaint for failure to appear for depositions and provide written discovery. The motion stated that the discovery end date was April 10, 2012. In their supporting certification, defendants acknowledged that the case had "suffered at least two . . . significant setbacks which delayed the discovery process, including the inability to mediate this claim and [p]laintiff[s'] counsel . . . having suffered climate-related disasters to his office, which resulted in the destruction of a portion of his files." The certification also stated that plaintiffs had not provided HIPAA authorizations as requested, and had not answered the supplemental interrogatories defendants had served on October 20, 2011.

The motion was returnable January 20, 2012. By January 10, 2012, plaintiffs had served responses to defendants' supplemental set of interrogatories and provided defendants with the HIPAA authorizations that defendant had demanded. Additionally, by January 10, 2012, the parties had scheduled plaintiff John Winberry's deposition for January 24, 2012. For that reason, defendants asked the court to adjourn their pending motion to February 3, 2012.

The parties thereafter rescheduled John Winberry's deposition to January 26, 2012, and then adjourned it yet again because Winberry had to care for his ill brother. In a letter confirming the adjournment of the January 26 deposition, defendants' counsel stated: "While I am aware of some of Mr. Winberry's personal-health issues, and those of his family, due to the continued adjournments of his deposition, I will refrain from issuing any further notices at this time." Defense counsel cautioned plaintiffs' attorney to "be guided accordingly." There was apparently no further communication with the court, and on February 3, 2012, the court entered an order dismissing plaintiffs' complaint without prejudice for failure to appear for depositions and for failure to provide written discovery, even though plaintiffs had answered written discovery.

On the afternoon of February 23, 2012, plaintiff John Winberry appeared for his deposition, which began at 2:05 and ended at 4:30. The parties subsequently failed to agree on a date to complete the deposition.

On April 19, 2012, defendants filed a motion to dismiss plaintiffs' complaint with prejudice. In an accompanying certification, their counsel averred, among other things, that plaintiffs' counsel was to contact defense counsel "[p]ursuant to R[ule] 4:23-5(a)(1) of the Rules of Court . . . to reschedule [John] Winberry's deposition[.]"[4] According to the certification, Winberry's failure to appear for depositions prejudiced defendants by preventing them from deposing plaintiffs, which in turn prevented defendants from filing a dispositive summary judgment motion. The certification did not explain why defendants were unable to file a summary judgment motion. Because the discovery end date had passed, defendants asked the court to dismiss the action with prejudice pursuant to Rule 4:23-5(a)(2).

During oral argument on the motion, the court did not ask plaintiffs' counsel why he had not filed a certification, required by Rule 4:23-5(a)(2), reciting that he had previously served the client with the notices required by Rule 4:23-5(a)(1) and the additional notification of the pending "with prejudice" motion. Also during oral argument, defense counsel conceded that defendants never noticed the deposition of anyone other than John Winberry.

The court granted the motion. In a handwritten notation on the memorializing order, the court stated that defense counsel had not complied with the notice provisions of Rule 4:23-5. The court also noted the provision in Rule 4:23-5 that the motion to dismiss with prejudice shall be granted unless a motion to vacate the previously extended order of dismissal without prejudice has been filed by the delinquent party and the discovery has been provided. The court identified the outstanding discovery as John Winberry's deposition and "paper discovery."[5] Because plaintiffs had neither moved to vacate the previous dismissal without prejudice nor provided the outstanding discovery, the court granted defendants' motion to dismiss the complaint with prejudice.

Plaintiffs filed a motion for reconsideration, supported by John Winberry's certification. Winberry certified he had never received the court's order dismissing the matter without prejudice in the form prescribed by the Rules of Court, and that his attorney had not informed him that defendants had filed a motion to dismiss with prejudice. Winberry also explained that because he cared for his sister, who was brain-damaged, and because he suffered from, among other things, chronic fatigue syndrome and post-traumatic stress disorder, it was difficult for him to complete his deposition. He further claimed to have given defense counsel's secretary five or six dates for his continuing deposition, but none had been acceptable. Plaintiffs' counsel also certified that he had not provided his clients with the notices required by Rule 4:23-5.

The court denied the motion on July 13, 2012, after determining that plaintiffs had not satisfied the standard for reconsideration. This appeal followed.


Plaintiffs argue that because their attorney, indisputably, did not comply with the requirements of Rule 4:23-5(a)(1) and (2), and because they should not be punished for his omissions, the trial judge erred by dismissing the case with prejudice. Defendants counter that the trial court did not abuse its discretion.

Rule 4:23-5 provides in pertinent part:

(a) Dismissal.
(1)Without Prejudice. If a demand for discovery pursuant to R. 4:17, R. 4:18-1, or R. 4:19 is not complied with and no timely motion for an extension or a protective order has been made, the party entitled to discovery may ... move, on notice, for an order dismissing or suppressing the pleading of the delinquent party.... Upon being served with the order of dismissal or suppression without prejudice, counsel for the delinquent party shall forthwith serve a copy of the order on the client by regular and certified mail, return receipt requested, accompanied by a notice in the form prescribed by Appendix II-A of these rules, specifically explaining the consequences of failure to comply with the discovery obligation and to file and serve a timely motion to restore.
(2) With Prejudice. If an order of dismissal or suppression without prejudice has been entered pursuant to paragraph (a)(1) of this rule and not thereafter vacated, the party entitled to the discovery may, after the expiration of 60 days from the date of the order, move on notice for an order of dismissal or suppression with prejudice. The attorney for the delinquent party shall, not later than 7 days prior to the return date of the motion, file and serve an affidavit reciting that the client was previously served as required by subparagraph (a)(1) and has been served with an additional notification, in the form prescribed by Appendix II-B, of the pendency of the motion to dismiss or suppress with prejudice.... The motion to dismiss or suppress with prejudice shall be granted unless a motion to vacate the previously entered order of dismissal or suppression without prejudice has been filed by the delinquent party and either the demanded and fully responsive discovery has been provided or exceptional circumstances are demonstrated.

We begin by recognizing that the well-settled purpose of Rule 4:23-5 is to elicit outstanding discovery "rather than to punish the offender by the loss of his cause of action or defense." Zimmerman v. United Servs. Auto Ass'n, 260 N.J.Super. 368, 374 (1992). The "rule prescribes a two-step procedure intended to give the offended party an effective mechanism for obtaining answers to interrogatories and the offending party an effective mechanism for preserving his action or defense. Ibid.

In Klajman v. Fair Lawn Estates, we emphasized the need for "'the courts [to] require counsel for the delinquent party to adhere to the notice and appearance provisions[.]'" Klajman, 292 N.J.Super. 54, 60 (App. Div. 1996) (quoting Suarez v. Sumitomo Chem. Co., 256 N.J.Super. 683, 688 (Law Div. 1991)). Further, we specifically endorsed the Law Division's reasoning that to effectuate the purposes of the rule, the court must adjourn the "with prejudice" motion if counsel has either "'fail[ed] to appear, or does so, but has failed to properly notice the client[.]'" Id . at 59-60 (quoting Suarez, supra, 256 N.J.Super. at 688). To achieve "the salutary scheme of [Rule 4:23-5] requires meticulous attention to its critical prescriptions, and particularly to those provisions which are intended to afford a measure of protection to the party who is faced with the ultimate litigation disaster of termination of his cause.'" A & M Farm v. Am. Sprinkler Mech., 423 N.J.Super. 528, 535 (App. Div. 2012) (quoting Zimmerman, supra, 260 N.J.Super. at 376-77). Because the court took no steps to enforce the notice provisions of Rule 4:23-5, we are constrained to reverse and remand.

We appreciate the difficulties faced by the trial court. Plaintiffs had not moved to reinstate their complaint within sixty days of the dismissal without prejudice or, to make matters worse, before the discovery end date expired. Plaintiffs' attorney's disregard of Rule 4:23-5 was inexcusable. But the court apparently did not realize, again because the attorneys did not make it clear, that the deposition of plaintiff John Winberry was the only outstanding discovery item that was the subject of the court's previous order. The deposition had already been conducted for more than two hours[6] and significantly, the record demonstrates a dispute about why the parties were unable to complete it. In addition, a trial date had not been set. Had plaintiffs' counsel complied with the notice provisions of Rule 4:23-5, Winberry may well have understood that completion of his deposition had to take priority over his personal problems if he wanted his case against defendants to proceed.[7]

For those reasons, we reverse the court's dismissal of plaintiffs' complaint with prejudice and remand this matter. On remand, the court may impose appropriate sanctions as authorized by Rule 4:23-5(a)(3), and take any other measure it deems necessary to compel Winberry to complete his deposition.

Reversed and remanded for further proceedings consistent with this opinion.

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