                                NOT FOR PUBLICATION WITHOUT THE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-5693-16T4

HAN HONG,

          Plaintiff-Appellant,

v.

COMMUNITY TRANSPORTATION,
INC. and RANDY BREESE,

          Defendants-Respondents,

and

PAULA A. OLMEDO and
MARIBEL VELASCO,

     Defendants.
_____________________________________

                    Argued October 29, 2018 – Decided November 19, 2018

                    Before Judges Messano and Gooden Brown.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Bergen County, Docket No. L-2460-16.

                    David M. Wasserman argued the cause for appellant
                    (Andrew Park, PC, attorneys; David M. Wasserman, on
                    the brief).
             Neal A. Thakkar argued the cause for respondents
             (Sweeney & Sheehan, PC, attorneys; Christopher J.
             O'Connell, of counsel; Neal A. Thakkar, on the brief).

PER CURIAM

      Plaintiff Han Hong appeals from an August 4, 2017 Law Division order

dismissing his complaint with prejudice in accordance with Rule 4:23-5(a)(2).

We affirm.

      By way of background, on March 18, 2016, plaintiff filed a personal injury

complaint against defendants Community Transportation, Inc. and Randy

Breese for injuries allegedly sustained in a motor vehicle accident. Defendants

filed a contesting answer and cross claims against co-defendants Paula A.

Olmedo and Maribel Velasco. On January 31, 2017, counsel for defendants

Community Transportation and Randy Breese (collectively defendants),

propounded     interrogatories,   specifically   Form   A    and   Supplemental

Interrogatories, and a Notice to Produce upon plaintiff, which was served upon

plaintiff's counsel.   When plaintiff failed to respond within sixty days as

prescribed by Rule 4:17-4(b), defense counsel sent a letter to plaintiff's counsel

requesting the discovery answers within ten days. When plaintiff again failed

to respond, defense counsel filed a motion to dismiss plaintiff's complaint

without prejudice in accordance with Rule 4:23-5(a)(1). Plaintiff did not oppose

                                                                          A-5693-16T4
                                        2
defendant's motion, which was granted on May 12, 2017. Defense counsel

served the May 12, 2017 order on plaintiff's counsel on May 24, 2017.

      Because plaintiff neither provided the outstanding discovery nor moved

to reinstate his complaint, on July 17, 2017, defendants moved to dismiss the

complaint with prejudice in accordance with Rule 4:23-5(a)(2). Two days later,

on July 19, 2017, plaintiff moved to vacate the dismissal and reinstate his

complaint. In a supporting certification, plaintiff's counsel certified that "on or

around July 18, 2017," his office "served [d]efendant[s] with [p]laintiff's

Answers to Form A Interrogatories, [p]laintiff's Response to Request for

Admission, [p]laintiff's Response to Notice to Produce, [p]laintiff's Answers to

Supplemental Interrogatories, along with HIPPA authorizations, and any and all

medical records within [p]laintiff's possession to date." Thus, according to

plaintiff's counsel, "at this time, there is no outstanding discovery."

      In opposition to plaintiff's motion, defense counsel certified that plaintiff's

"purported answers" were "completely unresponsive." Specifically, defense

counsel certified that plaintiff "refused to provide even the most basic factual

responses to over sixteen interrogatory questions." Further, in demonstrating

how plaintiff's answers were "not remotely responsive to [the] discovery

demands as propounded," defense counsel pointed out that to corroborate his


                                                                             A-5693-16T4
                                         3
injuries, plaintiff "provide[d] only a copy of the police report, [a] report from

Ridgefield Imaging Center . . . , [a] report from South Dean Orthopedics . . . and

three invoices from medical providers."        Plaintiff's counsel countered in a

certification that "[d]uring the course of discovery," his office "had difficulty in

obtaining medical records from [p]laintiff's treating facilities which delayed the

service of [p]laintiff's [a]nswers to [i]nterrogatories." However, "after obtaining

the medical records," his office "served [p]laintiff's certified [a]nswers to

[i]nterrogatories, responses to Notice to Produce, and provided medical

authorizations," along with filing "a motion to vacate [the] dismissal and

reinstate."

      On August 4, 2017, during oral argument on the motions, defense counsel

specified that "plaintiff's social security number" was still outstanding "even

though [it is] required under . . . the court rule [F]orm A [I]nterrogatories."

Additionally, according to defense counsel, although plaintiff's insurance carrier

was listed, there was "no [declaration] sheet, no claim number, [and] no policy

number" provided. Also, defense counsel noted plaintiff's "medical bills" were

not provided. As to the medical records, defense counsel stated that although

plaintiff listed several medical providers and described a litany of injuries that

"sounds like it[] [is] from [a] medical report," only "three medical records" were


                                                                            A-5693-16T4
                                         4
provided. According to defense counsel, "[t]here[] [was] an indication that

maybe [these medical reports] exist, but they did[] [not] provide [them] to us."

Defense counsel also asserted that at least "eight" of the responses "in the

[S]upplemental [I]nterrogatories" were "upon information and belief," and were

thus non-responsive. In response, plaintiff's counsel acknowledged that the

discovery was "incomplete," and that plaintiff had been uncooperative and

difficult to contact.     However, he argued that the "remedy for incomplete

discovery . . . [was] for the discovery process to continue."

       Following oral argument, the motion judge granted defendants' motion to

dismiss the complaint with prejudice and denied plaintiff's motion to reinstate.

The judge acknowledged that pursuant to Rule 4:23-5(a)(2), dismissal with

prejudice is mandated "unless a motion to vacate the previously entered order

of dismissal . . . 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 judge accepted defendants'

representation that "they still [did] not have a full set of records supporting the

plaintiff's claims, including and most prominently . . . plaintiff's social security

number" as well as an "expert report . . . in light of all of the . . . injuries" plaintiff

listed "in [q]uestion [n]umber [three]" of the interrogatories. As a result, the


                                                                                  A-5693-16T4
                                            5
judge determined that "fully responsive discovery ha[d] not been provided . . .

nor ha[d] any exceptional circumstances been demonstrated."

      The judge explained:

                 This complaint was filed on March 18, 2016. At
            the point in time that defendants filed their initial
            motion to dismiss on April 20, 2017[,] no discovery had
            been produced and hence the [c]ourt dismissed the
            complaint without prejudice on May 12[, 2017].

                   Since then, since May 12 all the way through
            July[,] no discovery had been produced. And now what
            we have are incomplete answers, including a refusal to
            turn over the social security number to the defense as
            well as producing a very routine and expected
            document, namely, an expert report by the plaintiff.

                  ....

                   At this point after the dismissal without
            prejudice[,] plaintiff should have moved on his case.
            Candidly[,] plaintiff['s] attorney has described that his
            client has not been cooperative. He also represented
            . . . that the plaintiff has been noticed of these
            proceedings[,] including . . . defendant's attempt to
            dismiss the complaint with prejudice after the dismissal
            without prejudice was obtained.

                   Still no social security number, still no expert
            report. Two fundamental elements of proof that
            plaintiff should turn over to the defense so they can
            properly investigate the case.

                  ....



                                                                        A-5693-16T4
                                       6
                   . . . [P]laintiff himself not being cooperative does
            not show exceptional circumstances. It merely shows
            his lack of interest in this litigation. . . . In any event,
            that[] [is] . . . plaintiff's own doing. I[] [am] not
            blaming plaintiff['s] attorney on this. . . . I[] [am]
            pointing the finger at plaintiff himself and what this
            motion record has . . . led the [c]ourt to conclude, that
            plaintiff has been uncooperative.

The judge entered a memorializing order and this appeal followed.

      Plaintiff asserts that because "the outstanding discovery consisted of

different discovery than the subject matter of the first-step order," the motion

judge "abused her discretion in continuing to consider [defendants'] request to

dismiss the action with prejudice." According to plaintiff, "the first- step order

and the second-step order must regard the same discovery," and "[i]f there is a

mismatch between the two dismissal orders, the dismissal with prejudice does

not comply with [Rule] 4:23-5."

      Our scope of review of a dismissal of a complaint with prejudice for

failure to provide discovery is limited to whether the trial court abused its

discretion. Abtrax Pharm., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 517 (1995).

We will decline to interfere with the exercise of that discretion unless we view

an injustice has been done. St. James AME Dev. Corp. v. City of Jersey City,

403 N.J. Super. 480, 484 (App. Div. 2008) (quoting Cooper v. Consol. Rail

Corp., 391 N.J. Super. 17, 23 (App. Div. 2007)).

                                                                           A-5693-16T4
                                         7
      "The dismissal of a party's cause of action, with prejudice, is drastic and

is generally not to be invoked except in those cases in which the order for

discovery goes to the very foundation of the cause of action, or where the refusal

to comply is deliberate and contumacious." Abtrax, 139 N.J. at 514 (quoting

Lang v. Morgan's Home Equip. Corp., 6 N.J. 333, 339 (1951)). "Since dismissal

with prejudice is the ultimate sanction, it will normally be ordered only when

no lesser sanction will suffice to erase the prejudice suffered by the non-

delinquent party, or when the litigant rather than the attorney was at fault." Ibid.

(quoting Zaccardi v. Becker, 88 N.J. 245, 253 (1982)).

      The well-settled purpose of Rule 4:23-5 is to elicit outstanding discovery

"rather than to punish the offender by the loss of his cause of action . . . ."

Zimmerman v. United Servs. Auto. Ass'n, 260 N.J. Super. 368, 374 (App. Div.

1992). To that end, to succeed on a motion to dismiss with prejudice under Rule

4:23-5 for failure to provide discovery, the moving party must strictly comply

with the requirements of the rule, id. at 373, which "involves a two-step

process." Sullivan v. Coverings & Installation, Inc., 403 N.J. Super. 86, 93

(App. Div. 2008).

      "First, the aggrieved party may move for dismissal for non-compliance

with discovery obligations" under paragraph (a)(1) of the rule, and "if the motion


                                                                            A-5693-16T4
                                         8
is granted, the complaint is dismissed without prejudice." Ibid. Rule 4:23-

5(a)(1) dismissals expressly apply to non-compliance with discovery pursuant

to Rule 4:17, pertaining to interrogatories, Rule 4:18, pertaining to demands for

documents, and Rule 4:19, pertaining to demands for medical examinations.

      Next,

              [i]f an order of dismissal . . . without prejudice has been
              entered pursuant to paragraph (a)(1) of this rule and not
              thereafter vacated, the party entitled to the discovery
              may, after the expiration of [sixty] days from the date
              of the order, move on notice for an order of dismissal
              . . . with prejudice. . . . The motion to dismiss . . . with
              prejudice shall be granted unless a motion to vacate the
              previously entered order of dismissal . . . 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.

              [R. 4:23-5(a)(2).]

The rule imposes a duty on the motion judge "to take action to obtain compliance

with the requirements of the rule." A & M Farm & Garden Ctr. v. Am. Sprinkler

Mech. L.L.C., 423 N.J. Super. 528, 532 (App. Div. 2012).

      Here, the record clearly shows the motion judge adhered to the procedural

safeguards established in Rule 4:23-5. Thus, we are satisfied the judge did not

abuse her discretion by dismissing the complaint with prejudice based on

plaintiff's failure to provide "fully responsive discovery" or demonstrate

                                                                             A-5693-16T4
                                           9
"exceptional circumstances." We reject plaintiff's assertion that there was a

mismatch between the discovery requested in step one and step two. Plaintiff

simply selectively responded to duly served discovery demands and failed to

cure the discovery deficiencies in a timely fashion. Under these circumstances,

delay, neglect, and lack of interest on the part of plaintiff coupled with the

failure to produce the requested discovery justify the dismissal with prejudice

under Rule 4:23-5(a)(2).

      Affirmed.




                                                                       A-5693-16T4
                                     10
