DENISE SCARBORO v. JOSEPH K. GANSER, KELLY A. GANSER & CHRISTOPHER GANSER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0051-06T30051-06T3

DENISE SCARBORO,

Plaintiff-Appellant,

v.

JOSEPH K. GANSER, KELLY A.

GANSER & CHRISTOPHER GANSER,

Defendants-Respondents,

and

COLONIAL PENN INSURANCE

COMPANY,

Defendant.

______________________________

 

Submitted March 28, 2007 - Decided August 2, 2007

Before Judges A. A. Rodr guez and Collester.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, L-4275-04.

Fusco & Macaluso, attorneys for appellant (Roy

R. Macaluso, of counsel and on the brief).

Chasan, Leyner & Lamparello, attorneys for

respondents (John V. Mallon and Antonietta

Vitale, on the brief).

PER CURIAM

Plaintiff Denise Scarboro appeals from the June 9, 2006, order denying her motion to vacate dismissal of her complaint and to reinstate the complaint to active status and from the subsequent order of August 4, 2006 denying her application for reconsideration. On September 25, 2006, we granted plaintiff's motion to file a notice of appeal nunc pro tunc. R. 2:4-1(a) and R. 2:4-4(a).

The action stems from a motor vehicle accident on May 27, 2002 when plaintiff was rear-ended in Newark by a car driven by defendant Joseph K. Ganser. She filed her complaint on May 27, 2004, exactly two years from the date of the accident. The Ganser defendants were not served until December 17, 2004. Defendants' counsel sent a copy of the answer submitted to plaintiff's attorney on February 2, 2005 with the

demand for answers to Form A interrogatories and supplemental questions together with a notice to produce. However, the answer was not filed because the complaint had been administratively dismissed for lack of prosecution. Defendants' counsel so notified plaintiff's attorney by letter on February 23, 2005. Because of computer error, defendants' answer was not accepted for filing until June 24, 2005. Over a month later, March 29, 2005, plaintiff filed a motion to restore, which was granted on March 25, 2005. On March 2, 2005, defendants' attorney served the plaintiff with defendants' answers to interrogatories. However, plaintiff did not answer the interrogatories propounded upon her.

The matter proceeded to mandatory non-binding arbitration on September 8, 2005, and the arbitrator entered an award in favor of plaintiff. Defendants filed a request for a trial de novo on October 3, 2005. Two days later, on October 5, 2005, defendants' counsel sent a letter to plaintiff's attorney stating that the defendant's answers to interrogatories had not been received within the time prescribed by the Rules of Court, requesting that the answers be furnished within seven days, and advising that non-compliance would result in the filing of a motion to dismiss. A month passed without compliance. Defendants moved to dismiss the complaint without prejudice pursuant to R. 4:23-5(a). No opposition was filed, and the motion was granted on November 18, 2005.

Six months passed before plaintiff moved on May 17, 2006 to restore the case. Plaintiff's attorney argued that defendants had failed to file a motion for additional discovery prior to the discovery end date of May 12, 2005 and that defendants received plaintiff's answer to interrogatories before the discovery end date because "certainly at the time of the arbitration hearing of September 8, 2005, [] this issue [was] not raised." Notably, the answers to the interrogatories submitted by defendant on February 2, 2005, were not attached to plaintiff's motion. Plaintiff's counsel failed to appear for oral argument, and on June 9, 2006, Judge Francine A. Schott entered an order denying the motion to restore with prejudice.

On June 28, 2006 the motion for reconsideration was filed with an explanation that plaintiff's attorney did not receive notice that a court appearance was required on the motion to restore. Once again the answers to defendant's interrogatories were not attached to the moving papers. Judge Schott denied reconsideration stating the following reasons in her order: "Movant challenges the Nov. 2005 order dismissing the complaint as having been entered beyond the discovery end date. Movant has not indicated why no opposition was filed to the motion resulting in the Nov. 2005 order."

The procedural history of this case shows a repeated failure to comply with court rules implementing and enforcing discovery summed up in the phrase Best Practices. See Vargas v. Camilo, 354 N.J. Super. 422, 425 n. 1 (App. Div. 2002), certif. denied, 175 N.J. 546 (2003).

Almost twenty years ago Justice Clifford summed up the need for consistent procedural due process in the service of substantial justice by stating:

Our Rules of procedure are not simply a minuet scored for lawyers to prance through on pain of losing the dance contest should they trip. Those Rules have a purpose, one of which is to assist in the processing of the increasing number and complexity of cases . . . that we have experienced over the last couple of decades.

[Stone v. Old Bridge Twp., 111 N.J. 110, 125 (1988) (Clifford, dissenting.).]

On appeal, plaintiff argues that Judge Schott erred in entering the November 2005 order because defendants' motion to enforce discovery was filed after the discovery end date and after arbitration, basing her argument on R. 4:24-1(c), which imposes a strict policy for extension of discovery by consent or court order. See Leitner v. Toms River Regional Schools, No. A-3460-05 ((App. Div. April 13, 2007) (slip op. at 14-17).; Mango v. Pierce-Coombs, 370 N.J. Super. 239, 258-59 (App. Div. 2004). Plaintiff's argument is without substance. Defendants' November 2, 2005 motion was not to extend time for discovery or for additional discovery, but to dismiss plaintiff's complaint for failure to provide discovery previously propounded. Furthermore, the fact that an arbitration was conducted despite plaintiff's failure to answer interrogatories cannot rebound in her favor since R. 4:21A-1 specifies: "The assignment of an action for arbitration shall not affect a party's opportunity to engage in pre-trial discovery nor an attorney's professional obligation to do so."

Judge Schott's November 18, 2005 order dismissing plaintiff's complaint without prejudice was grounded on R. 4:23-5(a)(1) and (2) which sets forth a two-step sanction for failure to answer interrogatories. A showing of non-compliance with discovery results in an order of dismissal without prejudice absent a showing of good cause and, if the order of dismissal is not vacated by compliance within ninety days, the court will grant an application for dismissal with prejudice absent compliance or exceptional circumstances. R. 4:23-5(a)(1) and (2). Since plaintiff did not submit opposition to defendants' initial motion to dismiss, Judge Schott properly entered an order granting the motion on November 18, 2005. Plaintiff waited six months to file her motion to restore, did not provide a copy of signed answers to interrogatories and did not appear at oral argument. No copy of interrogatory answers accompanied plaintiff's motion for reconsideration, and plaintiff's appendix does not include them. We can only conclude that the interrogatories have never been answered after more than two years since they were served.

Whether through inability or recalcitrance, plaintiff has never complied with discovery, and there is no indication that she ever will. R. 4:23-5(a)(2) provides that the motion to dismiss "shall be granted" under these circumstances. Therefore, Judge Schott properly denied defendant's motion to vacate dismissal and her motion for reconsideration.

 
Affirmed.

(continued)

(continued)

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A-0051-06T3

August 2, 2007