JOANNE WOLOSHIN-O'REILLY v. SHAWN L. DEANGELIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2862-09T3

JOANNE WOLOSHIN-O'REILLY and

STEPHEN O'REILLY, H/W,

Plaintiffs-Appellants,

v.

SHAWN L. DEANGELIS AND MASSIMO

DEANGELIS,

Defendants-Respondents.

__________________________________

August 24, 2011

Submitted January 12, 2011 - Decided

Before Judges Fuentes, Gilroy and Nugent.

On appeal from Superior Court of New Jersey,

Law Division, Camden County, Docket No.

L-5824-07.

Friedman, Spalleta & Legome, attorneys for

appellant (Harris C. Legome, of counsel;

Jonathan J. Sobel, on the brief).

Law Offices of Stephen E. Gertler, attorneys

for respondent (Dorine C. Sirota, of counsel;

Joseph Verga, on the brief).

PER CURIAM

Plaintiff1 Joanne Woloshin-O'Reilly appeals from the order of the Law Division dismissing with prejudice her personal injury automobile negligence action as a sanction for discovery violations pursuant to Rule 4:23-5(a)(2). Although the sanction of dismissal with prejudice is indeed draconian, we discern no abuse of discretion by the trial court and affirm.

Plaintiff was involved in an accident on November 15, 2005, when the vehicle she was driving was struck from behind by a car driven by defendant Shawn Deangelis and owned by defendant Massimo Deangelis. Plaintiff filed her complaint against these parties on November 14, 2007.

On February 11, 2008, defendant served plaintiff a demand for answers to interrogatories, supplemental interrogatories and demand for documents. In May 2008, defendants filed a motion to dismiss plaintiff's complaint without prejudice for failure to answer the interrogatories pursuant to Rule 4:23-5(a)(1). Plaintiff did not oppose the motion and on June 9, 2008, the court entered an order granting the relief requested. In addition to noting the motion was unopposed, the June 5, 2008 order indicates the judge placed his reasons for granting the relief requested on the record. Plaintiff did not include a transcript of this ruling as part of the appellate record.

After plaintiff failed to supply the discovery requested, defense counsel contacted plaintiff's counsel in an attempt to resolve the issue without further motion practice. Plaintiff's counsel did not respond. On October 21, 2008, defendant filed a motion to dismiss the complaint with prejudice pursuant to Rule 4:23-5(a)(2). The motion was returnable November 21, 2008.

In an undated certification, Michelle D'Ambra, a secretary in plaintiff's counsel's firm, avers that sometime during the week on December 5, 2008, she contacted defense counsel's office requesting the motion be carried to the next motion day. According to D'Ambra, she "was advised by the office of defense counsel" that the motion would be heard on December 19, 2008. In a reply certification, an attorney in defense counsel's firm confirmed having spoken to a woman identified as "Michelle" two days before the return date of defendant's motion to dismiss with prejudice. This attorney denied, however, that she consented to adjourn the motion. Counsel further indicated that she reminded "Michelle" of the importance of the pending motion to dismiss with prejudice, and asked that plaintiff's counsel return her call personally, as a matter of professional courtesy. Plaintiff's counsel did not respond.

On November 28, 2008, without plaintiff's counsel appearing on the motion or filing the affidavit required under Rule 4:23-5(a)(2),2 the court entered an order granting defendant's motion to dismiss with prejudice plaintiff's complaint. The order indicates that the court's reasons were set forth on the record. Although plaintiff's counsel was served with a copy of the order, plaintiff did not respond to defendant's discovery request, nor moved to vacate the order of dismissal with prejudice until almost a year later.

On November 4, 2009, plaintiff served certified answers to defendant's interrogatories and demand for production of documents. Plaintiff also filed a motion to vacate the order dismissing her case with prejudice. On November 20, 2009, during oral argument on the motion, plaintiff's counsel candidly admitted that his firm had not moved to vacate the November 2008 order any earlier because it "fell through the cracks." On this record, the court denied plaintiff's motion, finding no basis to find plaintiff satisfied the extraordinary circumstances standard for relief established under Rule 4:50-1.

On December 21, 2009, plaintiff filed a motion for reconsideration. On January 8, 2010, the court entered an order denying the motion without oral argument. It is from this order that plaintiff appeals, arguing the trial court erred in: (1) dismissing her complaint with prejudice because the court did not compel her counsel to appear on the return date of defendant's motion to dismiss her complaint with prejudice or file the affidavit as required by Rule 4:23-5(a)(2); and (2) denying her motion for reconsideration of the order that denied the 2009 application to vacate the 2008 order of dismissal pursuant to Rule 4:50-1. We reject these arguments.

Under Rule 4:23-5(a)(2), after sixty days from the date of an order to dismiss without prejudice, a 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). The record is undisputed the plaintiff failed to comply with these procedural requirements. Dismissal with prejudice was thus mandatory.

The trial court also properly rejected plaintiff's argument in support of vacating the dismissal order because plaintiff failed to show any extraordinary circumstances supporting the relief requested. Rodriguez v. Luciano, 277 N.J. Super. 109, 112-15 (App. Div. 1994) (holding that that neither a plaintiff's failure to communicate with counsel for more than a year nor the administrative problems in the attorney's office constitute exceptional circumstances).

Plaintiff's argument concerning the court's failure to enforce the appearance and affidavit requirements imposed on the delinquent party's counsel under Rule 4:23-5(a)(2) is equally devoid of merit. As we held in Leon v. Parthiv Reality Co., Inc., 360 N.J. Super. 153, 155 (App. Div. 2003):

Nothing in R. 4:23-5(a)(2) [ ] suggests that a plaintiff is automatically entitled to a vacation of an order of dismissal simply because the trial court or plaintiff's own attorney failed to comply with all the procedural requirements. If we allowed counsel's non-appearance on the return date of the motion to frustrate the intent of the rule, there would be no means by which the rule could be enforced.

[Internal citations and citations omitted.]

Affirmed.

1 We will refer to "plaintiff" in the singular because Stephen O'Reilly's per quod claims are derived from his status as a spouse.

2 Under Rule 4:23-5(a)(2): "The attorney for the delinquent party shall, not later than 7 days prior to the return date of the motion, file and serve an affidavit reciting that the client was previously served as required by subparagraph (a)(1) and has been served with an additional notification, in the form prescribed by Appendix II-B, of the pendency of the motion to dismiss or suppress with prejudice. In lieu thereof, the attorney for the delinquent party may certify that despite diligent inquiry, which shall be detailed in the affidavit, the client's whereabouts have not been able to be determined and such service on the client was therefore not made."