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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 ...

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