                        NOT FOR PUBLICATION WITHOUT THE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-4471-15T1

TRACEY L. GIST,

        Plaintiff-Appellant,

v.

ALEXANDER BREZO and
ELIZABETH BREZO,

     Defendants-Respondents.
_______________________________

              Submitted September 25, 2017 - Decided October 16, 2017

              Before Judges Accurso and Vernoia.

              On appeal from Superior Court of New Jersey,
              Law Division, Union County, Docket No. L-4169-
              14.

              The Simantov Law Firm, PC, attorneys for
              appellant (Joseph M. Simantov, on the brief).

              Soriano, Henkel, Biehl & Matthews, PC,
              attorneys for respondents (Peter DeSalvo, Jr.,
              on the brief).

PER CURIAM

        Plaintiff Tracey L. Gist appeals from the denial of her R.

4:50-1 motion to set aside the order dismissing her personal

injury complaint with prejudice pursuant to R. 4:23-5(a)(2).
Because we cannot find that plaintiff put forth competent

evidence of excusable neglect or exceptionable circumstances

justifying such relief, we affirm.

    Plaintiff was involved in an accident on November 15, 2012,

with a car driven by defendant Alexander Brezo and owned by

defendant Elizabeth Brezo.   She filed her complaint against them

on November 13, 2014.   When she failed to respond to defendants'

request for executed medical authorizations in the form annexed

and more specific answers to fourteen Form A and supplemental

interrogatories and four categories of defendants' notice to

produce, they moved to compel.    The motion went unopposed, and

the court entered an order on September 4, 2015, compelling

responses within fifteen days.

    When plaintiff did not comply with the order, defendants

moved to dismiss the action without prejudice pursuant to R.

4:23-5(a)(1).   Plaintiff did not oppose the motion, and the

court entered an order dismissing her complaint without

prejudice on October 23, 2015.

    In her brief on appeal, plaintiff claims she supplied

"original Answers to the Standard Form A Interrogatories,

Supplemental Interrogatories and Notice to Produce to Defendant

on or about December 17, 2015."       The document in her appendix to

support that assertion, however, is a letter in a different case

                                  2                           A-4471-15T1
pending in another county involving the same plaintiff but a

different defendant, directed to a different lawyer and law

firm.

    On December 30, 2015, plaintiff moved to reinstate the

action.   The motion was supported with a certification from

plaintiff's counsel averring that he received on September 4,

2015, a September 2, 2015 order of dismissal for failure to

provide outstanding discovery.   He claimed defense counsel had

already "received all outstanding discovery prior to the entry

of [the] court's Order on September 4, 2015" and requested the

case be "restored to the active calendar."

    Defendants cross-moved to dismiss with prejudice.   The

motion was supported by defense counsel's certification, in

which he claimed plaintiff had never produced the discovery

ordered on September 4, and that sixty days had passed since the

court dismissed the case without prejudice, entitling defendants

to a dismissal with prejudice.

    Plaintiff's counsel was not in court on the return date of

the motions.   He sent a per diem lawyer who expressed her

understanding that all outstanding discovery had been provided

and the delay had been caused by "some lack of communication

from the plaintiff because she ended up having brain surgery in

August, unrelated to the accident[,] and events that were

                                 3                           A-4471-15T1
leading up to that surgery left her out of touch with her

counsel and unable to – to recall certain events that would have

been helpful in – providing responses to the discovery."

    Defendants' counsel represented he was not provided the

discovery the court ordered produced on September 4, prior to

the entry of that order, as plaintiff's counsel certified in

support of the motion to reinstate.    He claimed he had only

received responsive documents in the last day or so, well after

the filing of the motion to reinstate and the cross-motion to

dismiss with prejudice.     Defense counsel further asserted he

still had not received several categories of documents,

including the declaration sheet for plaintiff's auto policy in

force on the date of the accident, and thus did not know whether

he was defending a verbal threshold case or the extent of

plaintiff's PIP coverage.

    On confirming per diem counsel had no first-hand knowledge

of plaintiff's medical problems and how they affected her

ability to assist her counsel with discovery, and satisfied that

critical documents remained outstanding, the court granted

defendants' motion to dismiss with prejudice.

    Plaintiff did not take a direct appeal of that order

entered January 22, 2016.    Instead, she moved almost two months

later to vacate the order pursuant to R. 4:50-1(a) or (f).

                                  4                         A-4471-15T1
Plaintiff's counsel filed a certification in support of the

motion claiming that on the return date of the January motions,

defendants were "in possession of all the discovery materials in

[his] possession, to which they were entitled," and the

materials provided "amounted to full compliance with the Order

entered by [the] court on September 4, 2016, for more specific

answers/responses to discovery requests."   Counsel repeated the

representation made to the court by per diem counsel regarding

plaintiff's medical problems and claimed that "clearly

extraordinary circumstance impacted directly . . . upon our

preparation of this case and ability to promptly respond to the

Defendant's demands and the Order of September 4, 2015."

Counsel maintained that "given that all outstanding discovery

materials were in fact provided to the Defense prior to the date

the Motions were heard," dismissal with prejudice would be

unjust to plaintiff "making admonition and imposition of

sanctions an appropriate remedy."   Counsel did not attempt to

detail the discovery produced in January and how it satisfied

the September 4 order and made no reference to the missing

declaration sheet.

    Defendants opposed the R. 4:50 motion and the court heard

oral argument.   Plaintiff's counsel of record was again not

present, and another per diem lawyer appeared on her behalf in

                                5                          A-4471-15T1
his stead.   Plaintiff's lawyer rested on the papers and was

unable to counter defense counsel's assertion that discovery

remained outstanding.   The judge, after engaging in a thorough

review of the several discovery motions marking the history of

the case, denied relief.   The judge focused on the different

contradictory certifications by plaintiff's absent counsel, who

first averred he provided defense counsel with all outstanding

discovery prior to the September 4 order and later was forced to

tacitly concede he filed the motion to reinstate on December 30

without ever having provided defendants the documents he was

ordered to produce on September 4.

    Turning to plaintiff's counsel's averments that discovery

was hampered by plaintiff's medical condition, the judge noted

that difficulty, "which certainly would be something for the

court to consider if anyone had provided a single piece of paper

to support that position, rather than someone just alleging it,"

was not presented in an affidavit made on personal knowledge as

required by R. 1:6-6.   Relying on the competent evidence in the

record, the judge found the arguments made on plaintiff's behalf

did not provide grounds for relief under R. 4:50-1(a) or (f).

He concluded that "[w]hat we have here is a lack of diligence on

the part of the attorney, I'm satisfied, in failing to do his



                                6                         A-4471-15T1
job in properly representing his client.   Those are not

exceptional circumstances."

    The dismissal of a complaint with prejudice for failure to

provide discovery, through apparently no fault of the plaintiff

who suffers the sanction, is an obviously troubling circumstance

for judges charged with administering the rules "to secure a

just determination, simplicity in procedure, fairness in

administration and the elimination of unjustifiable expense and

delay."   R. 1:1-2.   It is particularly concerning here because

plaintiff's counsel had by the return date on the motion to

dismiss with prejudice, apparently finally provided defense

counsel with many of the documents ordered produced more than

four months before.

    Had counsel of record appeared on the January return date,

he may well have been able to argue that the court was

presented, not with an all-out failure to comply with discovery,

but with a bona fide dispute over the responsiveness of the

discovery provided, compelling the court to review and

adjudicate the discovery dispute under Zimmerman v. United

Servs. Auto. Ass'n., 260 N.J. Super. 368, 377 (App. Div. 1992).

Counsel did not appear, however, and the court was faced with

defense counsel's representation that critical documents



                                 7                         A-4471-15T1
remained outstanding and plaintiff's counsel's conflicting

certifications as to what he had produced and when.

    Counsel did not address and correct the problems on the R.

4:50 motion but instead relied on incompetent hearsay that

might, if admissible, have explained the problems in September

but did not address why discovery was still outstanding the

following January.   Even on appeal, counsel, who was also

counsel of record in the trial court, has nowhere attempted to

explain with reference to the September 4 order what he produced

and how it satisfied the court's order.   Given this record, we

cannot find the trial court abused its discretion in refusing to

find excusable neglect under R. 4:50-1(a) or the exceptional

circumstances necessary to justify relief under R. 4:50-1(f).

See US Bank Nat. Ass'n v. Guillaume, 209 N.J. 449, 467 (2012);

Feinsod v. Noon, 272 N.J. Super. 248, 252 (App. Div. 1994).

    Affirmed.




                                8                            A-4471-15T1
