                                NOT FOR PUBLICATION WITHOUT THE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-4050-17T3

YOLANDA AYALA-BARRETO,

           Plaintiff-Appellant,

v.

KIMBERLY BARRETO and
GERMAN L. GONZALEZ,

           Defendants-Respondents.


                    Argued January 16, 2019 – Decided April 12, 2019

                    Before Judges Alvarez and Nugent.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Passaic County, Docket No. L-3636-16.

                    Michael K. Fielo argued the cause for appellant.

                    Laura M. Gifford argued the cause for respondent
                    Kimberly Barreto (Law Offices of Styliades and
                    Jackson, attorneys; Roma M. Patel, on the brief).

                    Richard J. Giannone argued the cause for respondent
                    German L. Gonzalez (Cooper Maren Nitsberg Voss &
                    DeCoursey, attorneys; Richard J. Giannone, of counsel
                    and on the brief).
PER CURIAM

      Plaintiff Yolanda Ayala-Barreto appeals from two orders dismissing her

personal injury complaint with prejudice for failure to make discovery. The

judge dismissed as to defendant German L. Gonzalez on December 4, 2017, and

as to Kimberly Barreto on April 17, 2018. Ayala-Barreto also appeals from a

separate April 17, 2018 order, which denied her application for reconsideration.

Ayala-Barreto sought damages from personal injuries sustained in an

automobile accident. We now reverse.

      Our decision should not be construed as rewarding dilatory participation

in the discovery process. Had Ayala-Barreto's counsel responded to discovery

requests in a timely manner, conscientiously monitored the e-filing system in

which earlier motions for dismissal without prejudice had been filed and granted

unopposed, or responded to courtesy notifications by his adversaries, this appeal

would be unnecessary. Counsel states that his failure to file written opposition

to Barreto's motion to dismiss with prejudice resulted from being informed by

chambers that a judge was unavailable due to illness, the motion would not be

heard until the judge's return, and he was "instructed to await the outcome of the

pending motion for reconsideration . . . ." This puzzling explanation was not,

from our review of the record, presented to the Law Division judge who heard


                                                                          A-4050-17T3
                                        2
the motions—and if not, its inclusion in Ayala-Barreto's appellate brief was

improper.1     The practice of law is guided by relevant precedent, rules, and

legislative enactments—not conversations with court staff.              The delay

occasioned by these missteps has been substantial—the automobile accident at

issue took place on July 3, 2015, nearly four years ago.

        Defendants strenuously argue on appeal that the judge did not abuse his

discretion in dismissing the complaint with prejudice because of Ayala-Barreto's

failures to comply with discovery and related procedural rules. In their view,

the ultimate sanction of dismissal with prejudice is warranted because of these

oversights.

        None of the briefs mention the fact Rule 4:23-5 "codified a two-step

procedural paradigm that must be strictly adhered to before the sanction of

dismissal of a complaint with prejudice for failing to answer interrogatories or

provide other discovery can be imposed." Thabo v. Z Transp., 452 N.J. Super.

359, 369 (App. Div. 2017) (citing St. James AME Dev. Corp. v. City of Jersey

City, 403 N.J. Super. 480, 484 (App. Div. 2008)). The burden falls upon the

motion judge to take steps to attempt to compel counsel to comply with the

requirements of the rule. Ibid.


1
    Additionally, we see no certification to that effect in the appendix.
                                                                            A-4050-17T3
                                          3
      There can be no doubt that defendants were entitled to make the

applications they filed. However, Rule 4:23-5(a)(2) states:

            [t]he attorney for the delinquent party shall, not later
            than [seven] 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 additional notification, in the
            form prescribed by Appendix II-B, of the pendency of
            the motion to dismiss or suppress with prejudice. In
            lieu thereof, 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. . . . Appearance on the
            return date of the motion shall be mandatory for the
            attorney for the delinquent party. . . . The motion to
            dismiss or suppress 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.

      The rule further provides:

            [i]f the attorney for the delinquent party fails to timely
            serve the client with the original order of dismissal or
            suppression 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 or suppress with prejudice, the court shall,
            unless exceptional circumstances are demonstrated,
            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-4050-17T3
                                        4
            [Rule 4:23-5(a)(3) (emphasis added).]

      In other words, the court must ensure counsel informs his or her client of

the likelihood that pleadings are about to be dismissed with prejudice. Yet the

motions to dismiss with prejudice were both decided on the papers, in the

absence of any oral argument or appearance by Ayala-Barreto's counsel, or the

filing of any documentation, as specified in Rule 4:23-5(a)(3), verifying that the

client was notified of the pending proceedings.

      The rule's procedural safeguards are designed to "ensure that the

defaulting litigant is aware that the order of dismissal or suppression without

prejudice has been entered and of its consequences." Thabo, 452 N.J. Super. at

371 (citing Pressler & Verniero, Current N.J. Court Rules, cmt. 1.2 on R. 4:23-5

(2017)). The "[d]iscovery rules are intended to create a level playing field for

all litigants and promote the resolution of civil dispute[s] on the merits. Judges

are entrusted to ensure that these rules are properly and fairly enforced." Ibid.

      Since these steps were not followed, we vacate the dismissals and reinstate

the complaint. Ayala-Barreto's counsel contends discovery and the appropriate

authorizations have now been provided. We therefore remand the matter to the

Law Division for a case management conference to be conducted at which a new




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                                        5
discovery end date, if necessary, is to be fixed, and a schedule created for

dispositive motions and trial.

      Reversed and remanded. We do not retain jurisdiction.




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