                        NOT FOR PUBLICATION WITHOUT THE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-2975-16T3

CHRISTIE WYSSENSKI,

        Plaintiff-Appellant,

v.

CHRISTOPHER P. STATILE and
CHRISTOPHER P. STATILE, PA,

        Defendants-Respondents.


              Argued July 2, 2018 – Decided July 18, 2018

              Before Judges Carroll and Rose.

              On appeal from Superior Court of New Jersey,
              Law Division, Bergen County, Docket No. L-
              4325-14.

              George J. Cotz argued the cause for appellant.

              Marc A. Raso argued the cause for respondents
              (Raso Legal Group, LLC, attorneys; Marc A.
              Raso, on the brief).

PER CURIAM

        Plaintiff Christie Wyssenski appeals from an order dismissing

her     complaint    against    defendants     Christopher      P.   Statile       and

Christopher P. Statile, PA with prejudice pursuant to Rule 4:23-
5(a)(2) for failure to provide discovery, and from an order denying

her motion for reconsideration.                   Because we cannot find on this

record      that      the   judge    abused       her   discretion    by   dismissing

plaintiff's complaint with prejudice, we affirm.

       On   May       17,   2014,    plaintiff      filed   a   complaint    against

defendants, her former employers, alleging violations of the New

Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49, the New

Jersey Wage and Hour Law, N.J.S.A. 34:11-56a to -56a30, and the

Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -14.

Thereafter, the parties filed several discovery motions, including

motions     to     dismiss    the    complaint      for   discovery    failures,     to

reinstate the case, to compel discovery, and to quash certain

subpoenas.       Since the parties are well familiar with this tortured

procedural history, we reference only the most pertinent portions

to lend context to the present appeal.

       On April 14, 2015, defendants filed a motion to dismiss

plaintiff's complaint without prejudice for failure to provide

more   specific        answers      to    interrogatories       and   more   specific

responses        to   requests      for   production.        Plaintiff     thereafter

provided defendants with certain information.                     Consequently, on

May 28, 2015, defendants withdrew their dismissal motion, without

prejudice to the right to refile it.



                                              2                               A-2975-16T3
     On November 20, 2015, the trial court granted an extension

of the discovery end date, and set deadlines for the completion

of outstanding discovery.      On February 19, 2016, the court granted

defendant's     second   motion     to   dismiss   the   complaint   without

prejudice, based on plaintiff's failure to comply with the November

20, 2015 order.

     On June 10, 2016, the court granted plaintiff's motion to

restore the case to the trial calendar, subject to payment of the

applicable restoration fee.          R. 4:23-5(a)(1).      The trial court

conducted a case management conference on June 17, 2016, in an

effort to move the case forward.             On July 21, 2016, the parties

forwarded a revised consent order to the court, again extending

the discovery deadlines.

     On August 17, 2016, defendants filed a third motion to dismiss

the complaint without prejudice.             Defendants cited plaintiff's

failure to respond to defendants' third discovery demands that had

been served on February 16, 2016.             Rather than resorting to the

sanction of dismissal, on September 2, 2016, the court instead

ordered plaintiff to provide certified responses to defendants'

third discovery demands within ten days.            If plaintiff failed to

comply,   the   order    directed   defendants'     counsel   to   "submit    a

[c]ertification to the [c]ourt, on notice to plaintiff's counsel,

at which time this matter will be dismissed without prejudice."

                                         3                            A-2975-16T3
       On     September   21,    2016,   defense    counsel    certified        that

plaintiff failed to comply with the September 2 order. Plaintiff's

counsel replied in opposition the following day.                On November 4,

2016, the court found "from the submissions of both counsel that

plaintiff has failed to comply with the [o]rder of September 2,

2016, in that she has failed to provide certified responses to

interrogatories despite having been given the opportunity to do

so."    Consequently, the court entered an order again dismissing

plaintiff's complaint without prejudice pursuant to Rule 4:23-

5(a)(1).

       On November 7, 2016, plaintiff moved to vacate the dismissal

order and restore the case to the trial calendar.               On December 6,

2016, the court denied the motion.               In a comprehensive written

statement of reasons that accompanied the order, the motion judge

chronicled      the   "unusually     problematic"    history    of   "discovery

disputes" that "caused this case to age unnecessarily."               The judge

noted the case was then two years and seven months old, and there

had    been    five   prior     discovery    extensions.      The   judge     found

plaintiff had yet to supply certified responses to defendants'

third discovery demands.          Accordingly, dismissal without prejudice

remained warranted because plaintiff's discovery responses were

deficient pursuant to Rule 4:17-4(a) (requiring interrogatories

to be answered "under oath") and Rule 4:18-1(b)(2) (requiring a

                                         4                                  A-2975-16T3
party responding to a document production request to "swear or

certify" that the answer is "complete and accurate").

     On January 3, 2017, defendants moved for dismissal with

prejudice pursuant to Rule 4:23-5(a)(2). The motion was originally

returnable on January 20, 2017.      On January 23, the court entered

an order adjourning the motion to February 3, 2017.              The order

directed plaintiff's counsel to appear on the return date and show

cause why the complaint should not be dismissed with prejudice,

and to comply with the requirements of Rule 4:23-5(a)(2) prior to

the hearing date.

     Plaintiff and her counsel attended the February 3, 2017

hearing.   Following oral argument, the court dismissed plaintiff's

complaint with prejudice, finding plaintiff had failed to cure the

discovery defaults and had not moved to vacate the previously

entered order of dismissal without prejudice.           Plaintiff filed a

timely motion for reconsideration, which the court denied on March

7, 2017.    This appeal followed.

     On    appeal,   plaintiff   argues   the   trial   court   abused   its

discretion in dismissing the complaint rather than imposing some

less severe sanction. Plaintiff also contends the court improperly

proceeded under Rule 4:23-5, and that her improperly certified

answers to interrogatories and responses to the third demand to

produce should have been deemed acceptable.         We disagree.

                                    5                               A-2975-16T3
    "[T]he standard of review for dismissal of a complaint with

prejudice for discovery misconduct is whether the trial court

abused its discretion[.]"    Abtrax Pharm. 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) (citing Cooper v. Consolidated

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

     Here, the record clearly shows the motion judge scrupulously

adhered to the procedural safeguards established in Rule 4:23-5.

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. LLC, 423 N.J. Super. 528, 532

(App. Div. 2012).    Rule 4:23-5 codifies 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.        St.

James, 403 N.J. Super. at 484.   These procedural requirements must

be scrupulously followed and technically complied with.    Sullivan

v. Coverings & Installation, Inc., 403 N.J. Super. 86, 95 (App.

Div. 2008).

     Step one requires the party aggrieved by the delinquent

party's failure to fulfill its discovery obligations to move to

                                  6                          A-2975-16T3
dismiss the complaint without prejudice.    R. 4:23-5(a)(1).      To

ensure the delinquent party is aware of its derelictions and has

the opportunity to correct them, the rule further provides that:

         Upon being served with the order of dismissal
         or suppression without prejudice, counsel for
         the delinquent party shall forthwith serve a
         copy of the order on the client by regular and
         certified mail, return receipt requested,
         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. If
         the delinquent party is appearing pro se,
         service of the order and notice hereby
         required shall be made by counsel for the
         moving party.

         [R. 4:23-5(a)(1).]

    Following compliance with the procedures set out in step one

of the rule, the aggrieved party may then move to dismiss the

complaint with prejudice.   Rule 4:23-5(a)(2) provides that:

         the party entitled to the discovery may, after
         the expiration of 60 days from the date of the
         order, move on notice for an order of
         dismissal or suppression with prejudice. The
         attorney for the delinquent party shall, 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. 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

                                7                          A-2975-16T3
          whereabouts have not been able to be
          determined and such service on the client was
          therefore not made. If the delinquent party
          is appearing pro se, the moving party shall
          attach to the motion a similar affidavit of
          service of the order and notices or, in lieu
          thereof, a certification as to why service was
          not made. Appearance on the return date of
          the motion shall be mandatory for the attorney
          for the delinquent party or the delinquent pro
          se party. The moving party need not appear
          but may be required to do so by the court.
          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.

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

     Although we agree that the two-step procedure of Rule 4:23-5

is designed to compel the discovery rather than to dismiss the

complaint, Adedoyin v. Arc of Morris County Chapter, Inc., 325

N.J. Super. 173, 180 (App. Div. 1999); Pressler & Verniero, Current

N.J. Court Rules, cmt. 3 on R. 4:23-5 (2016), here we are satisfied

that the motion judge afforded plaintiff multiple opportunities

to provide the certified discovery responses in order to avoid

dismissal of the complaint.    Given the long history of discovery

delays, we cannot find the judge abused her discretion on this

record.

     Affirmed.


                                 8                          A-2975-16T3
