31-37 Union Place, LLC v. City of Summit

NOT FOR PUBLICATION WITHOUT APPROVAL OF

THE TAX COURT COMMITTEE ON OPINIONS

TAX COURT OF NEW JERSEY

Mary Siobhan Brennan 153 Halsey Street

Judge Gibralter Building 12thFloor

Newark, New Jersey 07101

(973) 645-4280 Fax: (973) 645-4283

February 27, 2013

Wolff & Samson, P.C.

Attn: John F. Casey

One Boland Drive

West Orange, New Jersey 07052

Skoloff & Wolfe, P.C.

Attn: Garry J. Roettger

293 Eisenhower Parkway

Livingston, New Jersey 07039

RE: 31-37 Union Place, LLC v. City of Summit

Docket No. 002965-2010; 004204-2011

Dear Counsel:

This matter comes before the court on motion of defendant to dismiss plaintiff s 2011 Complaint without prejudice pursuant to R. 4:23-5(a)(1) for failure to answer interrogatories. Plaintiff opposes defendant s motion and cross-moves to reinstate its 2010 Complaint. Defendant opposes plaintiff s cross-motion on the basis that the interrogatory answers supplied by plaintiff do not apply to the 2010 Complaint and are uncertified. This letter constitutes the court s opinion conditionally denying the defendant s motion and denying without prejudice plaintiff s cross-motion.

The subject property is designated on the City of Summit s tax map as Block 2601, Lot 7 and is a commercial retail building comprised of three floors and a basement. Appeals for the subject property were filed for tax year 2010 under docket number 002965-2010, for tax year 2011 under docket number 004204-2011, and for tax year 2012 under docket number 005041-2012.

Defendant served standard and supplemental interrogatories for the 2010 Complaint by letter dated June 28, 2010. Thereafter, Judge DeAlmeida dismissed plaintiff s 2010 Complaint without prejudice on August 8, 2011 for failure to answer said interrogatories.

Defendant served standard and supplemental interrogatories regarding the 2011 Complaint by letter dated May 16, 2011. The cover sheet of the interrogatories incorrectly identified the docket number as - 2010. Defendant argues these interrogatories were clearly intended for the 2011 Complaint because (1) the cover letter states interrogatories were being served for 2011 and (2) the 2010 interrogatories had previously been served on June 28, 2010. However, the May 16, 2011 letter made no mention of 2011.

By letter dated January 10, 2013, plaintiff provided partial and uncertified interrogatory answers with respect to the above matter. The only docket number listed on the letter was for the 2012 Complaint. Attached to this letter were rent rolls for the years 2009 through 2012. Plaintiff supplemented its first set of answers by providing expense information in a letter dated January 16, 2013. The cover letter to the expense information only lists the 2012 docket and the expense list makes no reference to the dates or years it covers.

Plaintiff provided leases to defendant on January 22, 2013 during this court s trial call calendar, although which years those leases cover is not disclosed. These leases are not before the court.

Plaintiff filed its cross-motion to reinstate the 2010 Complaint on February 5, 2013. In his Certification, plaintiff describes the discovery that has been propounded but does not certify that all requested discovery for 2010 has been submitted as required by R. 4:23-5(a)(1). In its cross-motion, plaintiff claims that answers to the standard interrogatories were sent by letter dated January 10, 2013. As discussed above, this letter only refers to the 2012 docket. Attached as an exhibit to plaintiff s cross-motion are answers to supplemental interrogatories. These answers make no reference to a docket number or date and they are uncertified.

The parties waived oral argument and acquiesced to a disposition on the papers.

Each tax year is a separate cause of action. Freehold Borough v. Nestle USA, 21 N.J. Tax 138, 154-155 (Tax 2003). It logically follows that interrogatories served for a tax year must be answered for that particular year and answers submitted for a separate year should not be permitted to be relied upon.

Generally a complaint should not be dismissed for failure to answer interrogatories when the plaintiff has provided some, albeit inadequate, answers unless bad faith is shown. Zimmerman v. United Services Auto. Ass n, 260 N.J. Super. 368, 373 (App. Div. 1992). The rules are designed to elicit answers rather than to punish the offender by the loss of his cause of action or defense. Id. at 374.

The Appellate Division has stated that incomplete answers can not be automatically considered as a failure to answer under R.4:23 5. Incomplete answers are treated as a failure to answer only with regard to R.4:23 1(b). That provision does not carry over into R.4:23 5. Adedoyin v. Arc of Morris Cnty Chapter, Inc., 325 N.J. Super. 173, 180-181 (App. Div. 1999). The motion judge must focus on

whether good cause is present for relief other than a dismissal without prejudice for failure to answer. Even if not fully responsive in the eyes of defendants, the motion judge must determine whether the answers are within the realm of a bona fide dispute and whether the the real discovery dispute is not a failure to answer, but rather an alleged failure to answer in a fully responsive manner. If there is a bona fide dispute over the responsiveness of the answers, then it is error to dismiss the complaint.

[Id. at 181-182 (citations omitted).]

The issue regarding the 2011 Complaint is the appropriate remedy to plaintiff s failure to provide fully adequate answers to interrogatories. It is undisputed that plaintiff has supplied some meaningful discovery. Plaintiff has provided rent rolls, leases, and undated expense information. Plaintiff has also provided one set each of standard interrogatory answers and supplemental interrogatory answers, though it is disputed which years the answers apply to. For the above mentioned reasons, the court finds that the appropriate remedy is to deny defendant s motion and order plaintiff to submit fully responsive and certified answers to the standard and supplemental interrogatories served by defendant for the 2011 Complaint. Plaintiff must cure its discovery deficiencies by April 15, 2013.

R. 4:23-5(a)(1) provides that when a Complaint has been dismissed without prejudice for failure to provide discovery, the delinquent party may move to vacate the dismissal at any time before the matter is dismissed with prejudice. To do so, the motion must be supported by affidavit reciting that the discovery asserted to have been withheld has been fully and responsively provided and shall be accompanied by the appropriate payment. R. 4:23-5(a)(1).

Plaintiff has provided for payment of the statutory restatement fee by providing its Superior Court Account number. As to the required discovery, plaintiff claims it provided partial answers to defendant for the 2010 Complaint by letter dated January 10, 2013. As discussed previously, this letter refers only to the 2012 docket. As each tax year is a separate cause of action, it is not logical that one year s standard interrogatory answers will be responsive for all other years at issue. If plaintiff s answers to the standard interrogatories for the 2010 Complaint are the same as for its 2012 Complaint, it is plaintiff s responsibility to relay that fact to the defendant. It should certainly not be defendant s duty to assume as much.

The court finds that plaintiff has not complied with the terms of reinstatement set forth in R. 4:23-5(a)(1) because plaintiff has not sufficiently established that it has provided the required discovery. For the above mentioned reasons, plaintiff s motion to reinstate its 2010 Complaint is denied without prejudice. Plaintiff may provide certified answers to standard and supplemental interrogatories for the 2010 Complaint to defendant and renew its motion to reinstate on or before April 15, 2013.

Although the answers plaintiff has submitted to defendant are uncertified, plaintiff will still be bound by the answers he has submitted. Eden v. Conrail, 175 N.J. Super. 263, 282 (App. Div. 1980) modified, 87 N.J. 467 (1981). In its submissions to the court, plaintiff has stated that his client is out of the country on an extended stay and will provide certifications once he returns. The court requires that plaintiff supply certification to any answers it has provided by April 15, 2013.

An order enumerating the court s above decisions is attached.

Very truly yours,

Hon. Mary Siobhan Brennan, J.T.C.

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