MIRAC SERT v. ELAINE LOCONTE

NOT FOR PUBLICATION WITHOUT THE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-0706-20

MIRAC SERT and SELINAY SERT,
infants by their mother YASEMIN
SERT,

          Plaintiffs-Appellants,

v.

ELAINE LOCONTE and
JOSEPH LOCONTE,

     Defendants-Respondents.
______________________________

                   Submitted November 17, 2021 – Decided December 7, 2021

                   Before Judges Gilson and Gummer.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Bergen County, Docket No. L-3340-18.

                   Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins,
                   PC, attorneys for appellant (Lawrence M. Simon, on the
                   briefs).

                   Law Offices of Nancy L. Callegher, attorneys for
                   respondent (Michael A. Cassata, on the brief).

PER CURIAM
      Plaintiffs Mirac Sert and Selinay Sert, "infants by their mother Yasemin

Sert," appeal an order dismissing with prejudice their complaint for failing to

appear for their court-ordered depositions. Because the motion judge abused his

discretion by dismissing the case with prejudice while failing to follow the

required procedural safeguards codified in Rule 4:23-5, we reverse and remand

for further proceedings.

                                      I.

      On May 4, 2018, plaintiffs filed a complaint, alleging defendants' dogs

had attacked and bit them when they were trick-or-treating at defendants' house

on Halloween. On October 5, 2018, defendants filed an answer and served

plaintiffs' counsel with interrogatories. On January 7, 2019, defendants moved

to dismiss the complaint for failure to answer interrogatories.    Defendants

subsequently withdrew that motion.

      According to defense counsel, he scheduled plaintiffs to be deposed on

February 12, 2019, March 15, 2019, and June 18, 2019. Each time, plaintiffs'

counsel adjourned the depositions. Accordingly, defendants moved to compel

plaintiffs' depositions. The motion judge granted that unopposed motion on July




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26, 2019, and ordered Mirac, Selinay, and Yasemin 1 to appear for their

depositions on August 1, 2019.

        Plaintiffs failed to appear for the court-ordered depositions. On August

26, 2019, defendants moved to dismiss the complaint without prejudice pursuant

to Rule 4:23-5 based on their failure to appear. In a certification in support of

the motion, defense counsel stated "plaintiff's office staff" had advised him

plaintiffs had traveled out of the country and might not be available for several

months. The discovery end date was August 1, 2019. A request had been made

to extend the discovery period by sixty days. The motion judge granted the

unopposed motion and dismissed the complaint without prejudice on September

13, 2019. The judge required plaintiffs to appear for deposition prior to moving

to restore the complaint.

        In a December 16, 2019 letter, plaintiffs' counsel advised defense counsel

his "clients have returned to the United States. As a result we would like to

schedule their depositions so that we can complete same and thereafter have the

complaint reinstated by the [c]ourt." He asked counsel to provide "available

dates for these depositions in January and February of 2020." On January 17,

2020, plaintiffs' counsel received a voicemail from someone from defense


1
    We use their first names for ease of reading and mean no disrespect.
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counsel's firm. According to a March 8, 2020 email, plaintiffs' counsel told his

assistant "[c]lient is back and around for a while" and asked her to remind him

"to return this call and pick a date for depositions," presumably referring to the

January 17, 2020 call. She reminded him in a March 11, 2020 email. He

responded by telling her he had left a message two days before and would try

again later that day.

      On September 16, 2020, defendants moved to dismiss the complaint with

prejudice pursuant to Rule 4:23-5(a)(2). In support of that motion, defense

counsel certified "[a]ttempts were made with plaintiff’s office to obtain the

plaintiff’s deposition to no avail" but did not describe what those efforts were.

He also asserted plaintiffs had not taken any action to be deposed or to restore

the complaint since the dismissal without prejudice over a year ago. He made

no mention of plaintiffs' counsel's December 16, 2019 letter asking for

deposition dates or of his firm's January 17, 2020 voicemail message to

plaintiffs' counsel.

      In opposition, plaintiffs' counsel submitted a letter brief in which he

asserted plaintiffs were out of the country from May through early December of

2019 and that since then they had been "ready, willing, and able to appear for

depositions from mid-December of 2019 until the time that COVID-19 affected


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us." He did not support those assertions with a certification or affidavit of

someone with personal knowledge, like plaintiffs or their parents. See R. 1:6-

6. To demonstrate defense counsel's certification about plaintiffs' lack of action

was inaccurate, he attached to his opposition letter brief a copy of his December

16, 2019 letter to defense counsel asking for deposition dates, the notification

of the January 17, 2020 voicemail message from defense counsel's firm, and the

March 2020 emails between plaintiffs' counsel and his assistant about returning

that call. He stated his "last voicemail to defense counsel's office was not

returned, and due to COVID, this was not followed up on at our end, and likely

not at defense counsel's end."      Plaintiffs' counsel did not include in his

opposition an affidavit (1) confirming he had served plaintiffs with a copy of

the dismissal order, as required by Rule 4:23-5(a)(1), or the required "notice in

the form prescribed by Appendix II-A" of the Rules of Court; or (2) certifying

he was unable to serve plaintiffs with the order and notice because he could not

determine their whereabouts "despite diligent inquiry." R. 4:23-5(a)(2).

      Without conducting oral argument or requiring the presence of counsel on

the motion's return day, the motion judge on October 16, 2020, granted

defendants' motion and dismissed the complaint with prejudice. The court

reasoned that (1) plaintiffs never took steps to vacate the September 13, 2019


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order dismissing the complaint without prejudice and never filed a cross-motion

to reinstate the complaint; and (2) no exceptional circumstances existed to

preclude dismissing the complaint with prejudice.

      Plaintiffs appeal that order, arguing the motion judge abused his discretion

in dismissing the case with prejudice and contending exceptional circumstances

precluded them from attending their court-ordered deposition.

                                       II.

      Rule 4:23-5(c) allows a party to move to compel discovery demanded

pursuant to Rule 4:14, which governs depositions on oral examination. If a court

grants the motion and issues an order compelling the delinquent party's

deposition and if the delinquent party fails to appear at the court-ordered

deposition, the aggrieved party pursuant to Rule 4:23-5(c) may apply for

dismissal under subparagraph (a)(1) of Rule 4:23-5.         Subparagraph (a)(1)

authorizes a court to dismiss a delinquent party's case without prejudice and

requires counsel for the delinquent party to serve a copy of the dismissal order

on his client, "accompanied by a notice in the form prescribed by Appendix II-

A of these rules, specifically explaining the consequences of failure to comply

with the discovery obligation and to file and serve a timely motion to restore."




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      If the delinquent party fails to move to vacate the dismissal order and

restore the complaint, sixty days after the date of the dismissal order the

aggrieved party may move for dismissal with prejudice pursuant to subpart

(a)(2) of Rule 4:23-5. Subpart (a)(2) requires the attorney for the delinquent

party to "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." Alternatively, 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." R. 4:23-5(a)(2). Subpart (a)(2) requires

the attorney for the delinquent party to appear on the return date of the motion.

See Zimmerman v. United Servs. Auto. Ass'n,  260 N.J. Super. 368, 376 (App.

Div. 1992) (finding "it is clear that if the client is afforded an opportunity to

appear and if the attorney is mandated to appear, the motion is not subject to

waiver of oral argument and consequent decision on the papers.").

      The procedural requirements of Rule 4:23-5 "must be scrupulously

followed and technically complied with." Thabo v. Z Transp., 452 N.J. Super.


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359, 369 (App. Div. 2017). The obligations of a delinquent party's counsel to

file the required affidavit and appear in court are "non-waivable," id. at 371, and

are "prerequisites to the entry of an order of dismissal with prejudice ,"

Zimmerman,  260 N.J. Super. at 376.

      A critical purpose of Rule 4:23-5's requirements is to ensure the

delinquent party is aware of (1) "its derelictions and has the opportunity to

correct them," Thabo,  452 N.J. Super. at 369; and (2) the order of dismissal

without prejudice and its consequences, id. at 371. By requiring counsel to

communicate that information to his or her client and ensuring the client is aware

of the dangerous precipice on which he or she stands, Rule 4:23-5 encourages

parties to comply with their discovery obligations, thereby enabling the

determination of cases on their merits rather than their dismissal on procedural

grounds. A&M Farm & Garden Ctr. v. Am. Sprinkler Mech. L.L.C.,  423 N.J.

Super. 528, 534 (App. Div. 2012); Zimmerman,  260 N.J. Super. at 375. Thus,

"client notification . . . is at the heart of the dismissal with prejudice practice ."

Zimmerman,  260 N.J. Super. at 375.             The requirements of Rule 4:23-5

"perform[] the valuable function of establishing a record for the benefit of court

and counsel that a party has had requisite notice." A&M Farm & Garden Ctr.,

 423 N.J. Super. at 535.


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      If the attorney for the delinquent party "fails to timely serve the client with

the original order of dismissal . . . without prejudice, fails to file and serve the

affidavit and the notifications required by this rule, or fails to appear on the

return date of the motion to dismiss . . . with prejudice," subpart (a)(3) of Rule

4:23-5 requires the court, "unless exceptional circumstances are demonstrated,

[to] proceed by order to show cause or take such other appropriate action as may

be necessary to obtain compliance with the requirements of this rule." A court

cannot simply decide the motion on the incomplete papers. Without knowing

whether the client has received the "protections afforded by the rule," the court

is incapable of making an informed decision on the motion to dismiss with

prejudice. A&M Farm & Garden Ctr.,  423 N.J. Super. at 538.

      Judges are "entrusted to ensure" our discovery rules, which "are intended

to create a level playing field for all litigants and promote the resolution of civil

dispute on the merits[,] . . . are properly and fairly enforced." Thabo,  452 N.J.

Super. at 371. To that end, a motion judge has a duty "to take action to obtain

compliance with the requirements of" Rule 4:23-5. A&M Farm & Garden Ctr.,

 423 N.J. Super. at 532.    Dismissing a case with prejudice without taking that

required action is an abuse of discretion. Id. at 534; see also Thabo, 452 N.J.




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                                          9 Super. at 368 (finding the court's "flagrant disregard of the procedural

requirements of Rule 4:23-5" was an abuse of discretion).

      The "salutary scheme" of Rule 4:23-5 "requires meticulous attention to its

critical prescriptions, and particularly to those provisions which are intended to

afford a measure of protection to the party who is faced with the ultimate

litigation disaster of termination of his cause." Zimmerman,  260 N.J. Super. at
 376-77. Those concerns are heightened when the impacted parties are minors.

A.T. v. Cohen,  231 N.J. 337, 344 (2017) (recognizing "the protective care courts

of this state have traditionally accorded the tort claims of minors"); see also

Riemer v. St. Clare's Riverside Med. Ctr.,  300 N.J. Super. 101, 110 (App. Div.

1997) (recognizing "[t]he law is solicitous of infants").

      We appreciate and share in the frustration of the motion judge and defense

counsel with the failures of plaintiffs and their counsel to participate in

discovery and comply with the rules of discovery. That frustration and their

failures do not justify the imposition on these minors of the "ultimate sanction"

of dismissal with prejudice, Abtrax Pharm., Inc. v. Elkins-Sinn, Inc.,  139 N.J.
 499, 514 (1995), or excuse the motion judge's failure to follow and require

compliance with the essential procedural elements of Rule 4:23-5.               By

dismissing plaintiffs' complaint with prejudice without requiring plaintiffs'


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counsel to submit the necessary affidavit, by allowing plaintiffs' counsel not to

appear at oral argument, and by deciding the motion to dismiss with prejudice

on the papers with no evidence plaintiffs had received the notice essential to

Rule 4:23-5, the motion judge abused his discretion. Accordingly, we reverse,

the case is remanded, plaintiffs' depositions are to be scheduled, and plaintiffs'

complaint is to be reinstated.

      Reversed and remanded for proceedings consistent with this opinion. We

do not retain jurisdiction.




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