ANN REILLEY v. JERSEY SHORE UNIVERSITY MEDICAL CENTER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5411-07T15411-07T1

ANN REILLEY,

Plaintiff-Appellant,

v.

JERSEY SHORE UNIVERSITY

MEDICAL CENTER, STEPHEN

BECKER, M.D., CHRISTIAN

JORGENSEN, M.D., LORETTA

CHRISTENSEN, M.D., IVAN

MALDONADO, M.D., CATHERINE

DUDICK, M.D., GREG

FEDORCIK, M.D., DR. DRAPKIN,

CHRISTOPHER SPAGNOLA, M.D.,

DR. ABBUD, STEVEN SCHNEIDERMAN,

M.D., NANCY GORNISH, M.D.,

VINESHKUMAR PATEL, M.D.,

SUSAN CROSS, R.N., DR.

SOLTON and EDWARD GLAVEY, M.D.,

Defendants,

and

NIVEEN HANNA, M.D.,

Defendant-Respondent.

_________________________________________

 

Argued March 4, 2009 - Decided

Before Judges Stern and Rodr guez.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-3769-05.

Cynthia A. Matheke argued the cause for appellant (Lum, Drasco & Positan, attorneys; Ms. Matheke, of counsel and on the brief).

Thomas J. Heavey argued the cause for respondent (Grossman & Heavey, attorneys; Richard A. Grossman, of counsel; Ronald L. Lueddeke, Jr., on the brief).

PER CURIAM

Plaintiff Ann Reilley, appeals from the June 20, 2008 order, denying her motion to restore her medical malpractice complaint and the June 23, 2008 orders, granting cross-motions to dismiss her complaint with prejudice as to defendant, Niveen Hanna, M.D. We affirm.

Reilley was admitted to the Jersey Shore Medical Center on December 11, 2003, following a motor vehicle accident, in which she was hit as a pedestrian. Two years later, on December 13, 2005, she sued Niveen Hanna, M.D., and others.

Hanna answered and propounded a demand for documents and Form (A), A(1), and supplemental interrogatories. Subsequently, Hanna sent to plaintiff a supplemental Notice to Produce, requesting documents in connection with the motor vehicle accident, and employment records, or executed authorizations to obtain said records, from plaintiff's former employer the New Jersey State Police and a prior accident on December 11, 2003. Reilley did not provide these documents.

Several months later, Reilley moved to extend discovery from the August 18, 2007 discovery end date. She requested ninety days to complete the parties' depositions, despite her failure to provide discovery. Defense counsel requested the overdue discovery again, which was more than a year overdue. The judge extended the discovery end date to March 30, 2008 and set the following deadlines for the completion of discovery: all parties were to answer interrogatories by November 15, 2007, all depositions of fact witness and parties were to be completed by that same date, and all expert depositions to be completed by March 30, 2008. Defense counsel made numerous requests for the outstanding discovery by letter and telephone. These requests were ignored.

On January 3, 2008, defense counsel moved to dismiss plaintiff's complaint without prejudice for failure to answer interrogatories and to respond to document demands. The day before the return date, plaintiff finally supplied answers to Form A and A(1) interrogatories, but not supplemental interrogatories. There was no response to the Notice to Produce Documents, propounded more than a year-and-a-half before. On February 1, 2008, the judge granted defendant's motion to dismiss without prejudice for failure to provide discovery.

Nothing was done by Reilley to correct the discovery delinquencies in the ninety days following the dismissal without prejudice. Reilley moved to restore the complaint. Reilley's counsel sent a letter to defense counsel stating that she did not have supplemental interrogatories in the file. The letter went on to state that she was willing to produce Reilley for a deposition on a date and time convenient to defense counsel and that she was not in possession of the records that were requested in the Notice to Produce, but she would be willing to provide authorizations for same. Defense counsel sent a copy of the supplemental interrogatories in the event her motion to restore was granted. Further, Reilley's deposition could not yet be scheduled because Reilley had yet to provide the documents requested in the two supplemental Notices of Produce. Defendant cross-moved to dismiss with prejudice based upon the discovery delinquencies by Reilley.

The day before the return date, Reilley provided answers to the supplemental interrogatories only. Judge Oles heard oral argument on the motions and ordered Reilley's complaint dismissed with prejudice because Reilley failed to: (1) certify that there were no documents in connection with the December 11, 2003 motor vehicle accident; and (2) supply employment records, or authorizations to obtain same. Plaintiff appeals.

Plaintiff argues that "the order of dismissal with prejudice should be reversed or, in the alternative, the matter should be remanded to the trial court for determination of issues of compliance and the existence, or lack thereof, of any prejudice sustained by respondent." We disagree.

In St. James Ame Dev. Corp. v. City of Jersey City, 403 N.J. Super. 480 (App. Div. 2008), we held that the production of fully responsive answers by the time of the return date, even without exceptional circumstances, precludes dismissing a complaint with prejudice. Id. at 485; Andedoyin v. Arc of Morris County Chapter, Inc., 325 N.J. Super. 173, 183 (App. Div. 1999). See Pressler, Current N.J. Court Rules of Evidence, comment 1.3 on R. 4:23-5(a)(2) (2009).

We noted that, "the purpose behind this rule is to eliminate the conduct of some attorneys for the moving party, who refuse to accept answers to interrogatories served after the motion has been made or to inform the court that such answers have been received." Pressler, Current N.J. Court Rules, comment 1.3 on R. 4:23-5(a)(2) (2009). Rule 4:23-5(a)(2) provides that, "[t]he motion to dismiss [the complaint] or suppress [the answer] 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." R. 4:23-5(a)(2) (emphasis added). Conversely, we have affirmed a dismissal with prejudice where plaintiff did not provide the requested discovery between the order of dismissal without prejudice and the time of hearing the motion to dismiss with prejudice and further where there were no "exceptional circumstances." Cooper v. Consol. Rail Corp., 391 N.J. Super. 17, 22-23 (App. Div. 2007).

Lastly, we noted that "whether to grant or deny a motion to reinstate a complaint lies within the sound discretion of the trial court. Sullivan, supra, 403 N.J. Super. at 93; Cooper, supra, 391 N.J. Super. at 22-23, (citing Comeford v. Flagship Furniture Clearance Ctr., 198 N.J. Super. 514, 517 (App. Div. 1983), certif. denied, 97 N.J. 581 (1984)). We will "decline [ ] to interfere with [such] matter of discretion unless it appears that an injustice has been done." Cooper, supra, 391 N.J. Super. at 23, (quoting Comeford, supra, 198 N.J. Super. at 517))."

Here, the discovery provided by Reilley was incomplete in that there was no compliance with the Notice to Produce documents in connection with the December 11, 2003 accident; nor employment record authorization. In light of that, and the absence of a showing of exceptional circumstances, we hold that Judge Oles did not abuse his discretion in dismissing Reilley's complaint.

In reaching this decision, we are mindful that it is a tenet of our jurisprudence that resolution of disputes on the merits are to be encouraged rather than resolution by default for failure to comply with procedural requirements. St. James, supra, 403 N.J. Super. at 484; The Trust Co. of N.J. v. Sliwinski, 350 N.J. Super. 187, 192 (App. Div. 2002) (citing Aujero v. Cirelli, 110 N.J. 566, 573-74 (1988)). However, Reilley's persistent failure to provide discovery in this case justifies this result.

Affirmed.

(continued)

(continued)

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A-5411-07T1

August 25, 2009