LISA A. KATRAMADOS v. FIRST TRANSIT, INC.

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-1947-17T1

LISA A. KATRAMADOS,
a/k/a LISA KATRAMADOS,

          Plaintiff-Appellant,

v.

FIRST TRANSIT, INC., NJ
TRANSIT, NJ TRANSIT ACCESS
LINK, and MAXI COSMEY,

          Defendants-Respondents,

and

THE PORT AUTHORITY
OF NEW YORK and NEW
JERSEY a/k/a THE PORT
AUTHORITY OF NY & NJ,
and STATE OF NEW JERSEY,

     Defendants.
_______________________________

                    Submitted December 10, 2018 – Decided January 24, 2019

                    Before Judges Messano and Fasciale.
             On appeal from Superior Court of New Jersey, Law
             Division, Essex County, Docket No. L-6736-15.

             Davis, Saperstein & Salomon, PC, attorneys for
             appellant (Lisa A. Lehrer, of counsel and on the brief).

             Landman Corsi Ballaine & Ford, PC, attorneys for
             respondents (Gerald T. Ford and Lauren E. Van
             Driesen, on the brief).

PER CURIAM

      Plaintiff Lisa A. Katramados alleged she was injured while riding a bus

driven by defendant Maxi Cosmey and owned by defendants First Transit, Inc.,

New Jersey Transit and New Jersey Transit Access Link (collectively, NJ

Transit).1   Plaintiff filed a complaint claiming her injuries resulted from

Cosmey's negligence and NJ Transit's failure to train its employees. What

followed was plaintiff's abject failure to comply with discovery requests and

submit to an independent medical examination (IME), and defendant's

misunderstanding of our court rules designed to sanction plaintiff and compel

the examination.     Applying the incorrect court rule, the judge dismissed




1
  Defendants filed one answer and were represented by the same counsel. We
refer to them in the singular throughout the balance of this opinion. The initial
complaint also named the Port Authority of New York and New Jersey and the
State of New Jersey as defendants. They were subsequently dismissed with
prejudice from the litigation.
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plaintiff's complaint with prejudice.    Of necessity, we explain the tortured

procedural history.

      Within months of answering the complaint, defendant was required to file

a motion to dismiss the complaint without prejudice pursuant to Rule 4:23-

5(a)(1), or alternatively compel production, pursuant to Rule 4:23-5(c), because

plaintiff failed to answer Form A interrogatories, supplemental interrogatories

and a demand for documents. The judge entered an order compelling production

within twenty days.

      When plaintiff failed to fully respond, defendant moved to dismiss the

complaint without prejudice pursuant to Rule 4:23-2(b)(3), which permits the

judge to impose sanctions when a party fails to obey a court order. The record

does not reveal the disposition of this motion, but, the litigation continued, and,

in December 2017, defendant moved to compel plaintiff's deposition and extend

discovery. The certification in support of the motion stated that defendant had

noticed the deposition on four occasions, from July through November 2016; in

each instance, plaintiff's counsel adjourned the deposition.         The judge's

December 16, 2016 order extended discovery and compelled plaintiff's

deposition for a date certain in January 2017; by separate order, the judge

compelled defendant's deposition for a date certain in February.


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      In March 2017, defendant cross-moved to compel plaintiff's IME. 2 The

supporting certification demonstrated plaintiff failed to appear on two earlier

occasions. On March 31, 2017, a second judge, who assumed management of

the case, entered an order compelling plaintiff's IME on May 11, 2017. The

order did not provide the name of the physician performing the IME, or the time

and location of the examination. 3

      On May 10, one day before the scheduled exam, defense counsel contacted

plaintiff's counsel to confirm plaintiff's attendance.       Plaintiff's counsel

acknowledged receipt of the order, but advised the order was deficient and

requested a new notice.     Defense counsel immediately faxed the required

information identifying the doctor, time, and place of the examination, but

plaintiff's counsel advised her client would not attend due to lack of proper

notice. Plaintiff failed to appear for the court-ordered IME on May 11.

      Defendant then moved on short notice "to dismiss . . . [the] complaint with

prejudice pursuant to [Rule] 4:23-2(b)(3) for failure to comply with the . . .



2
  The appellate record fails to provide plaintiff's motion, nor does it describe
the nature of that motion.
3
  Defendant's two prior notices did provide the name and address of the doctor.
Defense counsel's certification supporting the motion to compel the IME
identified the doctor as defendant's expert.
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March . . . [o]rder," or alternatively, for a second order compelling attendance

at the IME, and sanctions. In opposition, plaintiff's counsel acknowledged his

client simply failed to appear for the first scheduled IME, but claimed that

defendant provided inadequate notice for the second and third scheduled

examinations. He stated that plaintiff was ready and willing to submit to the

IME defendant now had scheduled and noticed for June 22, 2017. The judge's

June 9, 2017 order compelled plaintiff's attendance for the scheduled IME, and

specifically contained the date, place, and time for the examination. Although

counsel confirmed plaintiff's attendance the day before, plaintiff failed to appear

on June 22.

      On June 30, defendant moved to dismiss the complaint with prejudice

pursuant to Rule 4:23-2(b)(3) for plaintiff's failure to comply with the judge's

June 9, 2017 order, and sanctions. In opposing the motion, plaintiff's counsel

acknowledged sending his client multiple letters before the scheduled IME

advising that her failure to attend the examination would result in dismissal of

the complaint. Plaintiff's affidavit in opposition claimed she lacked any memory

of the scheduled exam or her failure to attend. She blamed this on side effects

she "was not aware of . . . until very recently" of medication she admitted taking

since "last year."


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      The judge heard oral argument on defendant's motion on August 2, 2017.

He noted the impending close of discovery and that plaintiff had failed to appear

for two court-ordered IMEs. He also stated that counsel notified plaintiff of the

possible dismissal if she failed to appear. The judge's order (August order)

dismissed the complaint with prejudice, and granted attorney's fees and costs,

subject to a certification from defense counsel.

      On August 21, 2017, plaintiff moved for reconsideration of the August

order. Counsel's certification argued plaintiff's failure to appear for the IME

was "neither 'deliberate' nor 'contumacious.'" Relying primarily on Tucci v.

Tropicana Casino & Resort, Inc.,  364 N.J. Super. 48 (App. Div. 2003), plaintiff

asserted the ultimate sanction of dismissal with prejudice was unwarranted.  4 On

October 27, 2017, the judge entered an order (October order) denying the motion

for reconsideration.

      Defendant moved in the interim for an award of $5719.55 in fees and

costs. The motion went unopposed, and, on September 29, 2017, the judge

entered an order awarding defendant the requested amount (sanctions order).



4
  Although the judge's order indicates there was oral argument of the motion for
reconsideration, plaintiff did not supply any transcript. Trial court staff advised
the Appellate Division's Clerk's Office that there were no recorded proceedings
in this matter on October 27, 2017.
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Plaintiff filed a motion for reconsideration of that order on October 25. The

judge filed an order on December 11 (December order) with an accompanying

written statement of reasons denying the reconsideration motion. Plaintiff filed

this appeal on December 27, 2017.

      Plaintiff appeals from the August and October orders, dismissing the

complaint with prejudice and denying reconsideration, and the sanctions order

and December order, awarding fees and costs and denying reconsideration.

However, there is a procedural infirmity with the appeal.

      Plaintiff filed the appeal within forty-five days of the December order,

which bestowed finality on the litigation and made the appeal one as of right.

However, the appeal was not filed within forty-five days of the October order,

which, but for plaintiff's filing of a motion to reconsider the sanctions order two

days earlier, would have made the appeal final for purposes of our review.

Plaintiff might have obtained the benefit of Rule 2:4-3(e), which permits tolling

of the forty-five day limit if a "timely" motion for reconsideration was filed with

the trial court. "However, an untimely motion to reconsider does not" toll the

time. Eastampton Ctr., LLC v. Planning Bd. of Twp. of Eastampton,  354 N.J.

Super. 171, 187 (App. Div. 2002).




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      Rule 4:49-2 requires a party to serve a motion for reconsideration of an

order within twenty days of "service of the . . . order upon all parties by the party

obtaining it." Neither the parties nor the judge may enlarge the time limit. R.

1:3-4(c).

      Here, the record does not disclose when defendant served plaintiff with

the   sanctions    order,   and    plaintiff's   counsel's   certification   seeking

reconsideration of the unopposed order failed to state when it was received.

However, it seems unlikely that the reconsideration motion, filed October 25,

2017, twenty-six days after the filing of the sanctions order, was timely. The

result is that plaintiff's forty-five-day limit to appeal the August order, the

sanctions order and October order expired on December 11, 2017. The appeal

as to all but the December order is therefore untimely.

      Because defendant never raised the issue of timeliness, and because the

record is less than clear, we nonetheless consider plaintiff's arguments. She

contends for the first time that the judge erred by dismissing her complaint with

prejudice because defendant failed to follow the "two-step" procedure required

by Rule 4:23-5. She also contends that dismissal with prejudice was harsh and

unjust because lesser sanctions were available and defendant suffered no




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"irremediable prejudice."    Lastly, plaintiff argues the award of fees was

excessive under the circumstances. We affirm.

      Our review of a trial court's discovery order is limited, and we will defer

to the judge's rulings "absent an abuse of discretion or a . . . misunderstanding

or misapplication of the law." Capital Health Sys., Inc. v. Horizon Healthcare

Servs., Inc.,  230 N.J. 73, 79-80 (2017) (citing Pomerantz Paper Corp. v. New

Cmty. Corp.,  207 N.J. 344, 371 (2011)). Because dismissal with prejudice is a

"drastic remedy," courts should use it "sparingly" where the violation of our

court rules evinces deliberate disregard of the court's authority and the non-

offending party suffers prejudice. Gonzalez v. Safe & Sound Sec. Corp.,  185 N.J. 100, 115-16 (2005) (quoting Kosmowski v. Atl. City Med. Ctr.,  175 N.J.
 568, 575 (2003)).

       Here, there was a clear misapplication of our court rules. Dismissing a

case with prejudice is an option under both Rule 4:23-5 and Rule 4:23-2. Rule

4:23-5 allows for an order dismissing the pleading of a party who fails to comply

with a discovery demand made pursuant to Rule 4:17 (interrogatories), Rule

4:18 (production of documents), or Rule 4:19 (IMEs).

      Rule 4:19 states, "[t]he court may, on motion pursuant to R[ule] 4:23-5,

either compel the discovery or dismiss the pleading of a party who fails to submit


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                                        9
to the examination." (Emphasis added). Rule 4:23-5 creates a well-known two-

step process that works as a procedural safeguard for delinquent parties and must

be satisfied before a motion to dismiss with prejudice can be entered for

discovery violations involving interrogatories, the production of documents and

IMEs. R. 4:23-5; Thabo v. Z Transp.,  452 N.J. Super. 359, 369 (App. Div.

2017).

      Step one is dismissal without prejudice. R. 4:23-5(a)(1). The delinquent

party then has sixty days to cure and move to reinstate the pleading. R. 4:23-

5(a)(2).     If it does not, the non-delinquent party may seek dismissal with

prejudice.     R. 4:23-5(a)(2).   As an alternative to either motion, the non-

delinquent party may "move for an order compelling discovery demanded

pursuant to . . . R[ule] 4:19." R. 4:23-5(c). If the delinquent party fails to

comply with an order compelling the discovery, the party seeking the discovery

may move to dismiss without prejudice under Rule 4:23-5(a)(1). R. 4:23-5(c);

see Kwiatkowski v. Gruber,  390 N.J. Super. 235, 236-37 (App. Div. 2007)

(describing this procedure as applied to the failure to attend an IME). When it

comes to the listed modes of discovery, Rule 4:23-5 must "be scrupulously

followed and technically complied with." Thabo,  452 N.J. Super. at 369.




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                                       10
      It is obvious that defendant did not follow the appropriate procedure

required by Rule 4:23-5. After obtaining an order compelling plaintiff's IME,

and after plaintiff failed to appear, defendant did not move for dismissal without

prejudice pursuant to Rule 4:23-5(a)(1), but rather sought dismissal with

prejudice "pursuant to R[ule] 4:23-2(b)(3) for failure to comply with the . . .

[o]rder," or alternatively, for a second order compelling attendance at the IME.

After obtaining a second order compelling the IME, defendant again failed to

follow the proper procedure under Rule 4:23-5(a)(1) and (c), and again sought

dismissal with prejudice pursuant to Rule 4:23-2(b)(3).

      We might otherwise be inclined to reverse and remand the matter based

upon defendant's errors. However, as noted, plaintiff never objected to the

procedure defendant employed or the applicability of Rule 4:23-2 to the issue at

hand. Instead, plaintiff argued that the first court order was deficient as to

proper notification of time and place, and her violation of the second court order

was not willful. Plaintiff never denied knowledge of the court-ordered IMEs.

Had plaintiff raised the procedural objection earlier, the judge would have been

in position to cure the error before the first court-ordered IME.

      It is well-accepted that "[a]ppellate courts will decline to consider

questions or issues not properly presented to the trial court when an opportunity


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                                       11
for such a presentation is available 'unless the questions so raised on appeal go

to the jurisdiction of the trial court or concern matters of great public interest. '"

Nieder v. Royal Indem. Ins. Co.,  62 N.J. 229, 234 (1973) (quoting Reynolds

Offset Co., Inc. v. Summer,  58 N.J. Super. 542, 548 (App. Div. 1959)). The

argument plaintiff now raises challenges neither the court's jurisdiction nor

involves anything other than a private dispute.

      We have in other circumstances refused to grant relief to a delinquent

party, even though there was a lack of compliance with Rule 4:23-5, when the

appellant never raised the argument in the trial court and the "underlying

purpose of the two-tiered structure of [the Rule] was met . . . ." Universal

Folding Box Co., Inc. v. Hoboken City,  351 N.J. Super. 227, 233-35 (App. Div.

2002). Here, plaintiff admittedly had actual notice of all scheduled IMEs,

including two court-ordered IMEs. Her attorney's statements reveal he was well

aware of the potential for dismissal if his client failed to appear for the second

court-ordered IME and told plaintiff of the possible consequences. Plaintiff's

repeated allegations of technical deficiencies in those notices were disingenuous

at best, and typical of litigation gamesmanship, which a court should never

countenance. Plaintiff's alleged medical reasons for missing the final IME were

completely unsupported by any medical evidence.


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      We also reject plaintiff's argument that dismissal of her complaint with

prejudice was an excessive sanction unwarranted by her conduct. We described

the history of discovery in detail because it demonstrates how a relatively simple

negligence case can turn into a litigation nightmare that taxes judicial resources

beyond what is necessary and required for a just determination of the merits of

the complaint. Such delays occasioned by a party's conduct result in inherent

prejudice to the opposing party. Plaintiff's history of noncompliance justifies

the ultimate sanction of dismissal with prejudice. See, e.g., Fik-Rymarkiewicz

v. Univ. of Med. & Dentistry of N.J.,  430 N.J. Super. 469, 482-83 (App. Div.

2013) (holding that "under the totality of the circumstances . . . t he sanctions

imposed [including dismissal with prejudice] were not unjust or unreasonable");

Glass v. Suburban Restoration Co.,  317 N.J. Super. 574, 578-80 (App. Div.

1998) (upholding dismissal with prejudice when the defendant failed to comply

with multiple orders over a three-year discovery period).

      Lastly, plaintiff's argument regarding the fee award lacks sufficient merit

to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Plaintiff never

filed opposition to defense counsel's certification of fees and costs. The motion

for reconsideration of the September fee award lacked any merit whatsoever and

was properly denied by the judge.


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Affirmed.




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            14