YOUNG SOON KIM v. JENNIFER KIM, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4694-04T54694-04T5

YOUNG SOON KIM,

Plaintiff-Respondent,

v.

JENNIFER KIM, individually

and as administratrix of the

estate of John Kim, deceased,

ANNA KIM, JOSEPH KIM and

HANNAH KIM,

Defendants-Appellants,

and

GREAT BAY HOTEL AND CASINO, T/A

SANDS, TRUMP TAJ MAHAL ASSOCIATES

LP T/A TRUMP TAJ MAHAL CASINO AND

RESORT AND BOARDWALK REGENCY CORP.,

Defendants.

_______________________________________

 

Submitted March 20, 2006 - Decided June 9, 2006

Before Judges C.S. Fisher, Yannotti and Humphreys.

On appeal from Superior Court of New Jersey,

Chancery Division, Bergen County,

Docket No. C-121-03.

Michael S. Kimm, attorney for appellants.

Smith & Doran, attorneys for respondent

(Thomas J. Gaynor, of counsel and on the brief).

PER CURIAM

Plaintiff is the executrix of the estate of her deceased husband, Hyung Wook Kim. She and their son, John J. Kim, owned a house in Alpine, New Jersey. She instituted this action for partition of the house and other relief.

John J. Kim is deceased. The Administratrix of his estate and his three children filed an answer and counterclaim. They sought in the counterclaim an accounting of the estate of Hyung Wook Kim.

Judge Gerald Escala dismissed the counterclaim by partial summary judgment. He concluded that the defendants' claims were barred by time. He also denied the taking of an out of state deposition, and denied defendants' motion to amend their answer. He found that defendants had not presented any defense to partition and the sale of the house, and, therefore, ordered partition and sale.

Later he granted plaintiff's motions to strike the defendants' answer, first without prejudice and some 10 months later with prejudice, because defendants had failed to comply with the discovery rules.

Thereafter he conducted a trial. At the conclusion of the trial, Judge Escala entered a monetary judgment.

Defendants filed a notice of appeal from the monetary judgment and "all previous orders."

Defendants contend: 1) the orders striking the answer were "erroneous as a matter of law and unduly punitive of appellants' right to be heard on the merits"; 2) defendants should have been granted leave to amend their counterclaims "which were totally independent of plaintiff's claim for reimbursement and partition"; 3) summary judgment should not have been granted "when the proposed amended counterclaims were pending and those issues required plenary trial"; 4) the application to take an out of state deposition should have been granted.

We conclude that the judgments and orders appealed from were properly rendered for substantially the reasons given by Judge Escala. We add the following.

Dismissal of the counterclaim by summary judgment was plainly correct. The Will of Hyung Wook Kim was probated in 1981. The claims set forth in the counterclaim related to the administration of the estate some 20 years ago. Judge Escala stated in his oral opinion of April 2, 2004, that during those 20 years John J. Kim and his children remained silent. Judge Escala concluded, and we agree, that under these circumstances "every possible Statute of Limitations that could be invoked here has long since past."

The out of state deposition was in connection with the claims regarding the administration of the estate. The dismissal of the counterclaim, therefore, rendered the deposition moot.

The amendment to the answer would have added two separate defenses, set off and recoupment. These defenses were based on the claims in the counterclaim. Dismissal of the counterclaim rendered the defenses moot.

The striking of the answer with prejudice was also correct. By an order entered September 29, 2004, defendants' answer had been stricken without prejudice for failure to respond to plaintiff's initial interrogatories and notice to produce.

On January 5, 2004, plaintiff filed a motion seeking to convert the striking of the answer without prejudice to a striking with prejudice. Defendants filed opposition and a cross-motion to vacate a "default judgment."

By order entered February 17, 2005, Judge Escala granted plaintiff's motion to strike defendants' answer with prejudice and denied defendants' cross-motion.

R. 4:23-5(a)(2) provides that a motion to dismiss or suppress with prejudice for failure to comply with discovery demands 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."

Judge Escala in an attachment to his order of February 17, 2005, found that fully responsive discovery had not been provided by the defendants and exceptional circumstances were not present. He stated:

The discovery provided by the defendant is not responsive to R. 4:23-5(a)(2). This is an old case, one in which discovery should have already been completed and the matter readied for trial. In her response to plaintiff's interrogatories the defendant answers plaintiff's question by simply responding, "to be provided." The answers are quite cursorily written and cannot be considered "fully responsive." To be in that category would require that the discovery provided would be so complete as to enable the parties immediately to be prepared to try the case. Such is not the situation. Instead, the abbreviated and terse responses are what would be likely to provoke a motion for more specific answers. This case is not in the posture of being at the beginning of discovery. It is almost two years old.

The defendant's claimed inability to deal with this litigation for one and one-half years should have been addressed sooner. This is not a case of exceptional circumstances as contemplated by R. 4:23-5(2) (requiring the non-movant to provide discovery in full or demonstrate exceptional circumstances). Defendant's doctor indicates that defendant was occupied with her husband's illness, her financial problems and her children's problems. She was depressed. She took medications off-and-on and visited the doctor "about once a month." There is no description of a person so profoundly affected by her mental condition that she has essentially rendered herself incapable of functioning. Instead she appears to be afflicted with a more general inability to make decisions, but not any more so than persons facing the exigencies of daily life and family problems, a large portion of the population. But these however, do not rise to the level of "exceptional circumstance." Id. To permit restoration of the answer would perpetuate this litigation with no end in sight.

Note: There is no default, nor is there a default judgment. The defendant will participate in the trial, but must limit her participation to cross-examination only. She may not assert affirmative defenses.

We agree with Judge Escala's decision and reasons. The long delayed answers to interrogatories were plainly not responsive. Defendants did not respond at all to plaintiff's notice to produce.

Further, defendants have not shown that the circumstances were exceptional. The circumstances were not "unusual" or "remarkable", or "clearly beyond the control of the attorney and litigant...." See Rivers v. LSC Partnership, 378 N.J. Super. 68, 78-80 (App. Div.), certif. denied, 185 N.J. 296 (2005).

We are mindful that the purpose of R. 4:23-5 is to obtain answers to discovery demands and not to "punish the offender by the loss of his cause of action or defense." Zimmerman v. United Services Auto Ass'n., 260 N.J. Super. 368, 374 (App. Div. 1992). Nevertheless, the facts of this case amply justify the striking of defendants' answer. If our discovery rules are to have any meaningful effect, we cannot countenance the defendants waiting almost two years and then making at best only a half hearted attempt to comply with plaintiff's initial discovery demands. Tolerating such egregious dilatory conduct runs directly counter to a salutary purpose of our "Best Practices" amendments to the Court Rules. See Ponden v. Ponden, 374 N.J. Super. 1, 8 (App. Div.), certif. denied, 183 N.J. 212 (2005)("The 'Best Practices' rule amendments were intended and designed to improve not only the efficiency but also the expedition of civil proceedings... by ratcheting down on the needless delays in the completion of discovery....")

Furthermore, the result in this case is not unfair. At trial defendants' counsel was permitted to cross examine witnesses and present arguments, Judge Escala thoroughly examined the claims and assertions of the parties and reached a reasonable decision on the merits of the case. Defendants have not argued on this appeal that his decision was erroneous, or shown how the striking of their answer seriously prejudiced them.

 
Affirmed.

(continued)

(continued)

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A-4694-04T5

June 9, 2006