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Thabo v. Z Transportation

Superior Court of New Jersey, Appellate Division

November 17, 2017

AZIZ M. THABO, Plaintiff-Appellant,
Z TRANSPORTATION, Defendant-Respondent.

          Submitted September 27, 2017

         On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-3296-15.

          Anthony J. Van Zwaren, attorney for appellant.

          Sammarro & Zalarick, PA, attorneys for respondent (Stephen M. Sammarro, on the brief).

          Before Judges Fuentes, Manahan and Suter.


          FUENTES, P.J.A.D.

         In this breach of contract case, the Law Division judge dismissed with prejudice plaintiff's complaint by imposing the ultimate discovery sanction provided in Rule 4:23-5. We now reverse and remand this matter for further proceedings because the party who filed this motion and the Law Division judge who imposed this sanction failed to follow the procedural safeguards codified in Rule 4:23-5.

         The record shows defendant did not provide the motion judge with competent evidence showing it complied with the strict notice requirements of Rule 4:23-5. Even more egregious, defendant received the outstanding discovery which formed the basis of the sanction a month before the judge dismissed plaintiff's complaint with prejudice. This wholesale disregard for the due process protections embodied in Rule 4:23-5 can occur only when the trial court fails to perform its basic gatekeeping function.

         We derive the following facts from the record developed by the parties at this stage of the litigation. We emphasize, however, that the veracity of the factual claims that form the basis of this cause of action are not at issue here. We do not express any opinion about the merits of this cause of action.


         On July 10, 2015, plaintiff Aziz M. Thabo contacted Igor Nikolovski, a representative of defendant Z Transportation, in response to an advertisement defendant had placed in a publication called "Truck Paper, " offering for sale a 2006 Freightliner C1124ST - Century 112 truck for $19, 600. According to plaintiff, he made clear to Nikolovski that he was only looking to buy a Department of Transportation (DOT) compliant truck. Defendant allegedly assured plaintiff that the 2006 Freightliner C1124ST - Century 112 truck met this requirement. In fact, defendant described the truck in its advertisement as being "DOT Ready, " which plaintiff understood to mean the truck would pass inspection and comply with the regulations of the Department of Transportation and the Federal Motor Carrier Safety Administration.[1]

         Plaintiff claims that when he took the truck for a test drive, he immediately noticed it was not DOT compliant. Nikolovski acknowledged the deficiency and agreed to make the truck DOT ready, provided that plaintiff would commit to purchasing the truck. Plaintiff agreed and gave defendant a $1000 deposit as an indication of his good faith commitment to buy the truck. Defendant alleges it paid for the replacement and repair of certain parts to ensure the truck was DOT compliant. Defendant further alleges it told plaintiff that the necessary repairs had been done and the truck was ready for pick up on August 15, 2015. Plaintiff sent defendant a check in the amount of $18, 600, representing the balance of the purchase price.

         Before plaintiff took possession of the truck, defendant informed him that the truck displayed an error code message on the dashboard related to the air conditioning. Defendant nevertheless assured plaintiff that the truck was DOT certified and provided plaintiff with a document denoted "Vehicle History Record." The document contains a checklist of all the items inspected and certified as "OK." There is a blank space on the right corner of the document with the words "Inspector's Name (Print or Type), " which was left blank. Immediately below this blank box is another space that states: "This inspector meets the Qualification Requirements in Section 396.19." A box with the word "YES" was marked with an "X."

         Based on the error code message in the truck's dashboard, plaintiff refused to take possession of the vehicle and asked defendant to refund him the $19, 600. Plaintiff claims he contacted defendant several times thereafter demanding the refund of his money, to no avail. Defendant claims it contacted plaintiff several times to determine when he planned to pick up the truck, but did not get an answer. Defendant also claims it has incurred storage charges due to plaintiff's failure to take possession of the truck.


         On September 23, 2015, plaintiff filed a pro se complaint against defendant in the Law Division. At this time, plaintiff resided in the Township of Darby, Pennsylvania.[2] On November 23, 2015, defendant filed its answer alleging several affirmative defenses and a counterclaim to recover storage charges allegedly incurred in safekeeping the truck after it was sold to plaintiff. Defendant claims the truck was DOT compliant and seeks to recover the storage charges it had incurred as a result of plaintiff's alleged breach of the sales contract.

         The initial discovery end date (DED) in this matter was April 21, 2016. Plaintiff served defendant with a notice to produce documents by certified mail on December 4, 2015, and December 23, 2015. Defendant served plaintiff with interrogatories and a notice to produce documents on January 4, 2016. Plaintiff filed a motion to compel defendant to respond to the notice to ...

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