AZIZ M. THABO, Plaintiff-Appellant,
Z TRANSPORTATION, Defendant-Respondent.
Submitted September 27, 2017
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).
Judges Fuentes, Manahan and Suter.
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.
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.
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
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
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
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
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.
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. 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.
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