LUIS RIVERA v. SCOTT M. RABOY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4379-05T14379-05T1

LUIS RIVERA,

Plaintiff-Appellant,

v.

SCOTT M. RABOY, D.P.M., F.A.C.F.A.S.,

Defendant-Respondent,

and

ALLCARE FOOT AND ANKLE CENTER,

BOULEVARD PODIATRY, MICHAEL D.

PERLMAN, D.P.M., and NEIL ZWEIBEL,

D.P.M.,

Defendants.

________________________________________________________________

 

Submitted October 24, 2006 - Decided November 15, 2006

Before Judges Skillman and Lisa.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, L-2414-04.

The Yankowitz Law Firm, attorneys for appellant (Kevin H. Main, of counsel and on the brief).

Hardin, Kundla, McKeon & Poletto, attorneys for respondent (Eileen Bass Rudd, on the brief).

PER CURIAM

In this medical malpractice action, plaintiff's complaint was dismissed with prejudice pursuant to Rule 4:23-5(a)(2) for an alleged discovery violation. On the same date that the judge granted defendants' motion to dismiss with prejudice, he also denied plaintiff's motion to reinstate the complaint, which had been previously dismissed without prejudice. Plaintiff appeals from both orders. Plaintiff argues that he provided fully responsive discovery and paid the required reinstatement fee prior to the return date of defendants' motion to dismiss with prejudice. As a result, plaintiff claims he was entitled to reinstatement of the complaint by the plain terms of Rule 4:23-5(a)(2). We agree and reverse.

The complaint was filed on June 3, 2004. Defendants' answer was filed on December 29, 2004. The case was assigned to Track III, which allows 450 days of discovery, resulting in a discovery end date of March 24, 2006. See R. 4:24-1(a).

On June 28, 2005, defendants filed a motion seeking dismissal without prejudice pursuant to Rule 4:23-5(a)(1), supported by a certification of counsel that plaintiff failed to provide answers to interrogatories and a response to a demand for production of documents. The motion was returnable on July 22, 2005.

On July 21, 2005, plaintiff transmitted to defense counsel answers to interrogatories which, according to plaintiff, were fully responsive. Plaintiff requested withdrawal of the motion to dismiss. Although plaintiff's counsel arranged for same-day hand delivery, defense counsel apparently did not receive the delivery until the morning of July 22. Thus, they had no time to withdraw the motion, and an order was entered on July 22 dismissing the complaint without prejudice. Defense counsel forwarded a copy of that order to plaintiff's counsel by letter of July 27, 2005.

Upon realizing that interrogatory answers had been furnished by July 22, 2005, defense counsel wrote to plaintiff's counsel on August 23, 2005, acknowledging receipt of the interrogatory answers and agreeing to reinstate the complaint by way of consent order. Plaintiff's counsel was to provide a consent order, which defense counsel agreed to execute. Defense counsel enclosed in the August 23 letter thirteen authorizations for release of medical and other records for plaintiff's signature. Counsel requested that plaintiff sign and initial a particular box on each authorization and return them. Counsel also requested dates on which plaintiff's deposition could be taken. The letter made no mention of any deficiency in the interrogatory answers or of any outstanding documents, other than the authorizations.

On October 25, 2005, plaintiff's counsel sent defense counsel a proposed consent order reinstating the complaint. Defense counsel refused to consent and, on that same date, filed a motion seeking dismissal of the complaint with prejudice. Counsel certified to two outstanding discovery requests: (1) the authorizations had not been returned executed by plaintiff; and (2) plaintiff's deposition had not been scheduled. Although the certification made no mention of the absence of an expert report, it is undisputed that none had yet been furnished.

Prior to the return date, plaintiff's counsel furnished the authorizations which plaintiff had signed. However, plaintiff failed to initial the designated box. The parties reached an agreement regarding the outstanding discovery. This was memorialized by a letter of November 7, 2005 from defense counsel to plaintiff's counsel. Plaintiff's counsel would obtain plaintiff's initials on the authorizations, plaintiff would be deposed, and a date certain would be agreed upon for production of an expert report. Upon fulfillment of those three conditions, defense counsel stated that "we would then be amenable to consenting to reinstate plaintiff's Complaint."

The authorizations were initialed and returned. Plaintiff was deposed at defense counsel's offices on November 16, 2005. The attorneys agreed that plaintiff's expert report would be furnished by February 1, 2006. The attorneys agreed that the motion to dismiss with prejudice would be withdrawn, and it was.

Plaintiff's counsel served the defense with the expert report on Monday, February 6, 2006, five days (including a weekend) after the agreed deadline. According to plaintiff's counsel, February 1 was a soft deadline. Counsel tried to negotiate a March 1 deadline, to which defense counsel was not amenable. According to plaintiff's counsel, when the February 1 deadline was agreed upon, defense counsel stated that if it was a few days late it would not be a problem. In the ensuing motions, plaintiff's counsel certified to this understanding. Defense counsel did not expressly refute it, but relied upon the correspondence memorializing February 1 as the agreed-upon deadline. Resolution of this potential factual dispute is not critical to disposition of the matter.

Defense counsel refused to consent to reinstatement of the complaint. Instead, on February 16, 2006, counsel filed a motion to dismiss with prejudice. The only basis was the five-day-late expert report. Counsel made no mention in her certification of any other outstanding discovery, including the demand for production of documents. Indeed, in her certification she did not mention that she received the expert report, albeit late. She merely certified that she did not receive it by the agreed-upon date of February 1, 2006.

Prior to the return date of defendants' motion, plaintiff cross-moved for vacation of the order to dismiss without prejudice and reinstatement of the complaint. Counsel also paid the required $300 reinstatement fee. See R. 4:23-5(a)(1). He certified that all requested discovery, including the fully executed authorizations and his expert report had been furnished. He further certified that the only remaining discovery to be completed was the deposition of defendant, the service by defense counsel of any defense expert report, and depositions of the experts.

On March 20, 2006, the judge decided the motions on the papers. The judge endorsed this statement of reasons on the order granting defendants' motion to dismiss with prejudice: "All accommodations were made to plaintiff who still refuse[ed] to abide by the enlarged discovery period." The judge endorsed this statement of reasons on the order denying plaintiff's motion to restore the complaint: "Application is denied. All accommodations were made to plaintiff who failed to abide by them. No exceptional circumstances."

Rule 4:23-5(a)(2) provides in relevant part:

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.

[Emphasis added.]

Prior to the return date of defendants' motion to dismiss with prejudice, plaintiff filed a cross-motion to vacate the dismissal without prejudice and restore his complaint. And, the only outstanding discovery, plaintiff's expert report, had been provided. Thus, by the plain terms of Rule 4:23-5(a)(2), there was no authorization to dismiss with prejudice.

The motion judge was apparently under the mistaken belief that plaintiff was required to demonstrate exceptional circumstances to avoid dismissal with prejudice. That is not so. Demonstration of exceptional circumstances is only one of two alternative bases upon which a delinquent party can avoid dismissal with prejudice. Plaintiff here satisfied the other alternative. He furnished, before the return date of the motion to dismiss with prejudice, the demanded and fully responsive discovery that was outstanding.

On appeal, the defense contends they have never received fully responsive discovery. They assert they never received a response to their demand for production of documents. However, the record does not support that assertion. At no time after the initial motion to dismiss without prejudice, filed on June 28, 2005, did the defense mention in any correspondence or certification failure to respond to the demand for production of documents. Indeed, in all correspondence and certifications after that time which are part of the record before us, the outstanding discovery issues involved only the authorizations for release of medical and other records, plaintiff's deposition, and plaintiff's expert report.

Defendant also argues on appeal that because of plaintiff's continual tardiness in the discovery process, defendant will be prejudiced because he will have to "scramble" to prepare a defense within the discovery deadline. We are unpersuaded. The defense had all requested discovery, including plaintiff's expert report, by February 6, 2006. The initial discovery end date was not until March 24, 2006, and the parties could obtain by consent, without the need for court approval, a sixty-day extension. R. 4:24-1(c). A further extension could be obtained, if necessary, for good cause shown. Ibid. It must be remembered that the main objective of Rule 4:23-5 is to compel compliance with outstanding discovery obligations, not to dismiss the case. Adedoyin v. ARC of Morris Co. Chapter, Inc., 325 N.J. Super. 173, 180 (App. Div. 1999).

The orders under review are reversed. The complaint is reinstated. The matter is remanded to the trial court for further proceedings.

 

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A-4379-05T1

November 15, 2006