                        NOT FOR PUBLICATION WITHOUT THE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-4540-16T4

JI SUNG KIM,

     Plaintiff-Appellant,

v.

PAUL P. KOBLISKA,

   Defendant-Respondent.
_____________________________

              Submitted June 6, 2018 – Decided July 10, 2018

              Before Judges Currier and Geiger.

              On appeal from Superior Court of New Jersey,
              Law Division, Union County, Docket No. L-3773-
              15.

              Andrew Park, PC, attorneys for appellant
              (David M. Wasserman, on the brief).

              Hoagland, Longo, Moran, Dunst & Doukas, LLP,
              attorneys for respondent (Aron Mandel, of
              counsel and on the brief).

PER CURIAM

        Plaintiff Ji Sung Kim appeals from two May 12, 2017 orders:

(1) dismissing the complaint with prejudice for failure to provide
discovery and (2) denying his motion to reinstate the complaint

to the active trial list.         We affirm.

     We glean the following facts from the record.                        Plaintiff

sustained injuries in a motor vehicle accident occurring on April

15, 2015, when the vehicle he was driving collided with a vehicle

driven by defendant Paul P. Kobliska.               Plaintiff initiated this

action on November 4, 2015.

     Defendant filed an answer, separate defenses, and a demand

for discovery on December 9, 2015.                 The demand for discovery

included       standard         form     interrogatories,           supplemental

interrogatories, and a notice to produce, which demanded plaintiff

produce     executed    authorizations        to   obtain    his    medical      and

prescription records.           Despite multiple requests from defense

counsel,    plaintiff     did    not   provide     any   discovery    responses,

resulting in defendant filing a series of motions to enforce

plaintiff's discovery obligations.

     Defendant moved to dismiss the complaint without prejudice

for failing to answer interrogatories and produce documents. While

the motion was pending, plaintiff produced uncertified discovery

responses.      In response to the demand for pharmacy records,

plaintiff    objected,     claiming     the    request      was    overly    broad.

Defendant advised the court, in addition to not being certified,

plaintiff's    discovery    responses       were   not   based     upon   personal

                                        2                                   A-4540-16T4
knowledge. On September 2, 2016, the trial court denied the motion

to dismiss but ordered plaintiff to provide certified answers to

the interrogatories within ten days.                Plaintiff did not comply

with the order.

     Defendant then moved to dismiss the complaint for failure to

provide certified answers to interrogatories in violation of the

prior order.      While the motion was pending, plaintiff produced

additional discovery, which, again, was not certified.                  On October

18, 2016, the trial court denied defendant's motion to dismiss

because   defendant    did     not    timely      serve   the   prior   order     on

plaintiff.    The court ordered plaintiff to certify all discovery

by October 31, 2016.

     On   November    15,     2016,    defendant     demanded    more     specific

answers to interrogatories and sought clarification of plaintiff's

objection    to   producing    his    pharmacy      records;    defendant      asked

plaintiff    to    clarify     whether       it    was    the   subject       matter

(prescription records) or the time period (past ten years) to

which plaintiff objected.            In the event the objection was based

on the time period of the records sought, defendant requested

plaintiff authorize the release of the pharmacy records he found

unobjectionable.       Plaintiff       responded     by   indicating     he    would

provide the more specific information during his deposition.



                                         3                                 A-4540-16T4
     On December 2, 2016, the trial court extended discovery to

July 3, 2017, and ordered plaintiff to provide more specific and

complete    answers   to   interrogatories   and   document   requests    by

December 15, 2016.     Plaintiff did not comply with the order.

     On January 31, 2017, after receiving no additional discovery

from plaintiff, defendant moved, for a second time, to dismiss the

complaint with prejudice pursuant to Rule 4:23-2(b)(3) for failure

to comply with the December 2, 2016 order.         On February 17, 2017,

the trial court dismissed the complaint without prejudice.

     While the motion was pending, plaintiff supplied additional

uncertified responses.        As part of the responses, plaintiff's

counsel stated: "Upon information and belief, [p]laintiff has not

had any prescriptions for the last 10 years."

     However, on March 6, 2017, plaintiff supplied additional

discovery responses, in which he disclosed, for the first time,

he had received prescription medication from a Costco Pharmacy.

On the same day, plaintiff moved to reinstate the complaint.

During oral argument, plaintiff's counsel represented she would

supply the remaining discovery, including the authorization for

the Costco Pharmacy records, within one week.           Plaintiff failed

to do so.    As a result, on April 13, 2017, the trial court denied

plaintiff's motion to reinstate the complaint without prejudice.

The court noted plaintiff filed his motion before he had complied

                                    4                              A-4540-16T4
with discovery demands and his discovery deficiencies had resulted

in three motions to dismiss.

       Meanwhile,     on    April    11,     2017,    some    488    days       after    the

discovery requests were propounded, plaintiff finally provided

certified       answers     to    the      interrogatories          and    supplemental

interrogatories and executed authorizations for numerous medical

providers and an employer.              However, the authorizations were, in

part,   improperly        prepared.         The    authorization          for    KSK    Line

authorized the release of medical records rather than employment

records.    The authorization for Affinity Radiology authorized the

release    of    employment       records        rather     than    medical       records.

Plaintiff did not provide an executed authorization for the Costco

Pharmacy records.           As a courtesy, defendant supplied corrected

authorizations to plaintiff's counsel.

       Consequently,        plaintiff       had     still     not    provided          fully

responsive       discovery,         having       failed      to     provide        correct

authorizations        for   KSK   Line,      Affinity       Radiology,      and     Costco

Pharmacy.       We further note these providers and employer had not

been    disclosed      in    plaintiff's          initial    discovery          responses.

Defendant moved to dismiss the complaint with prejudice for failure

to provide discovery within sixty days of the order dismissing the

complaint without prejudice.                Plaintiff opposed the motion and

cross-moved      to   reinstate      the     complaint      and    extend       discovery.

                                             5                                     A-4540-16T4
Contrary to plaintiff's counsel's certification, fully responsive

discovery responses were not attached.            Plaintiff had still not

provided an executed authorization for Costco Pharmacy.

      On the return date, two attorneys appeared for oral argument

for plaintiff. The motion judge noted plaintiff's attorneys argued

inconsistent     positions.       One    argued    the    Costco    Pharmacy

authorization had been sent to defense counsel.           The other argued

plaintiff could not provide the executed authorization because the

wrong form had been provided.      Notably, the executed authorization

for Costco Pharmacy records is not included in the record.

      The defense maintained its position that plaintiff had still

not   provided   the   executed   authorization     for   Costco   Pharmacy.

Defense counsel explained, although he received a transmittal

letter, the authorization was not enclosed.         Defense counsel noted

the executed authorization was supposed to be attached as Exhibit

C to the certification submitted by plaintiff's counsel, but it

was not attached.      When confronted with this discrepancy by the

motion judge, plaintiff's counsel stated the authorization was not

attached because of a computer outage in their office on the day

the papers had to be sent out.     When the judge asked if plaintiff's

counsel had a copy with them, counsel admitted they did not.

      Defense counsel also indicated plaintiff had not disclosed

six or seven treating physicians named in the Personal Injury

                                     6                               A-4540-16T4
Protection benefit records.       Additionally, plaintiff's answers to

interrogatories stated he was unemployed, when, in fact, he was

employed by KSK Line from May 2015 to October 2016 and by Shin Ju

Line starting in October 2016.

     The motion judge concluded plaintiff had not provided the

executed Costco Pharmacy authorization to defense counsel, finding

plaintiff's counsel had stretched the court's "credulity to the

limits."    She stated plaintiff's counsel had submitted "a lot of

documents and statements" that the court could not rely on,

referring to a prior certification of one person that had been

incorrectly executed by a different person and two motions to

reinstate   the   complaint    despite    not   complying   with   discovery

requests.     The   judge     concluded   she   could   not   rely   on   the

representations made by plaintiff's counsel in light of their

inconsistent arguments.        In contrast, the judge found defense

counsel's statements credible.

     The trial court dismissed the complaint with prejudice and

denied plaintiff's cross-motion, noting plaintiff had failed to

provide the delinquent discovery prior to filing the motion to

reinstate the complaint even though ample time was given to comply.

The court found the motion to reinstate did not comply with the

rules since discovery was still not complete.



                                     7                               A-4540-16T4
     Expressing frustration with plaintiff's repeated failures to

provide certified answers to discovery and comply with court

orders, the court stated it had no confidence that the situation

would not repeat itself even if it denied the motion to dismiss

with prejudice, granted the motion to reinstate, and ordered

plaintiff to pay sanctions.     Instead, the court believed it would

"be in the same situation" again, noting it "has just been a

disaster the way this case has been conducted," causing defendant

to suffer an "injustice."     Plaintiff did not seek reconsideration.

This appeal followed.

     On   appeal,   plaintiff   argues   the   trial   court   abused   its

discretion in dismissing the complaint with prejudice rather than

compelling   plaintiff   to   produce    the   remaining   pharmaceutical

records authorization.        Plaintiff contends defendant's motion

should have been treated as a motion to compel discovery rather

than a motion to dismiss with prejudice. Relying on an unpublished

opinion, plaintiff argues Rule 4:23-5 only permits dismissal with

prejudice for failing to provide the specific discovery leading

to the prior dismissal without prejudice.1        Plaintiff asserts the

earlier dismissal without prejudice was made in regard to a failure


1
    Unpublished opinions do not constitute precedent, are not
binding upon any court, Rule 1:36-3, "and cannot reliably be
considered part of our common law,” Trinity Cemetery v. Wall Tp.,
170 N.J. 39, 48 (2001) (Verniero, J., concurring).

                                   8                               A-4540-16T4
to answer interrogatories, whereas the motion to dismiss with

prejudice     pertained      to   a      failure     to     provide        certain

authorizations.

     We review the dismissal of a complaint with prejudice for

discovery misconduct for abuse of discretion, "a standard that

cautions appellate courts not to interfere unless an injustice

appears to have been done."       Abtrax Pharms., Inc. v. Elkins-Sinn,

Inc., 139 N.J. 499, 517 (1995) (citations omitted).               We find no

such abuse of discretion in this matter.

     The trial court's findings are amply supported by the record.

Plaintiff    repeatedly      failed   to   provide    basic    discovery          to

defendant    despite      multiple    extensions      and     court        orders.

Plaintiff's conduct caused a "months-long discovery impasse,"

substantially delaying discovery and necessitating a series of

discovery    enforcement      motions,     causing    defendant       to     incur

attorney's fees and costs, and the trial court to expend judicial

resources.

     Plaintiff offers no explanation for the protracted failure

to provide responsive discovery and to comply with discovery rules

and court orders.      He does not claim he was delayed in providing

discovery    by   illness,    disability,    or    inaccessibility         to   the

information sought.



                                      9                                    A-4540-16T4
     Particularly troubling is the basic nature of the discovery

at issue.   This is a simple personal injury action arising out of

a motor vehicle accident.              Standard form interrogatories and

authorizations       to   obtain       records         from    medical     providers,

pharmacies,    and    employers       do   not       present   difficult    discovery

obligations.         Here,    there    is       no    suggestion   that     obtaining

plaintiff's signature on the authorizations and the information

necessary     to     answer    the     interrogatories          was      thwarted    by

circumstances beyond plaintiff's control.

     Our court rules and case law do not permit a party to

flippantly ignore their discovery obligations and court orders.

Rule 4:23-5 provides for a two-step sanction process if a demand

for discovery pursuant to Rule 4:17 or Rule 4:18 is not complied

with.   St. James AME Dev. Corp. v. City of Jersey City, 403 N.J.

Super. 480, 484 (App. Div. 2008); Pressler & Verniero, Current

N.J. Court Rules, cmt. 1.1 on R. 4:23-5 (2018).                       The first step

is dismissal without prejudice under Rule 4:23-5(a)(1). The second

step is dismissal with prejudice under Rule 4:23-5(a)(2).

            If 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 . . . move on notice for an
            order of dismissal . . . with prejudice. . .
            . The motion to dismiss or suppress with
            prejudice shall be granted unless a motion to
            vacate the previously entered order of

                                           10                                 A-4540-16T4
             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).]

      Rule    4:23-1   authorizes       a    trial      court    to    enter    orders

compelling discovery of authorizations for medical and employment

records.     Among the remedies the trial court may impose is an

order "dismissing the action or proceeding or any part thereof

with or without prejudice."         R. 4:23-2(b)(3).

      Additionally, "[a] trial court has inherent discretionary

power to impose sanctions for failure to make discovery, subject

only to the requirement that they be just and reasonable in the

circumstances." Abtrax Pharms., 139 N.J. at 513 (quoting Calabrese

v. Trenton State Coll., 162 N.J. Super. 145, 151-52 (App. Div.

1978), aff'd, 82 N.J. 321 (1980)); see also Lang v. Morgan's Home

Equip. Corp., 6 N.J. 333, 338 (1951).                Applying these standards,

we   conclude   the    motion   judge       did   not   err     by    dismissing    the

complaint with prejudice.

      Plaintiff did not comply with the December 2, 2016 order

compelling him to provide more specific and complete answers to

interrogatories and document requests by December 15, 2016.                            A

February 17, 2017 order dismissed the complaint without prejudice

for failure to comply with the December 2, 2016 order.                     Plaintiff

                                        11                                     A-4540-16T4
did not move to reinstate the complaint within sixty days, instead

waiting until May 4, 2017, to file his cross-motion.                        By not

supplying     an    executed    authorization     for    the    Costco     Pharmacy

records, plaintiff failed to produce "fully responsive discovery,"

as required by Rule 4:23-5(a)(2).              See Fik-Rymarkiewicz v. Univ.

of Med. and Dentistry of N.J., 430 N.J. Super. 469, 482 (App. Div.

2013).        Accordingly,      the    court     did    not     err   by    denying

reinstatement.

      Plaintiff did not demonstrate "exceptional circumstances" to

allow for reinstatement of his complaint.              Ibid.    To the contrary,

no   excuse    at   all   was   offered.       Accordingly,      dismissal      with

prejudice was appropriate.            See Pressler & Verniero, cmt. 1.3 on

R. 4:23-5 ("Otherwise, the motion for dismissal or suppression

with prejudice is required to be granted unless fully responsive

answers have been served by the time of the return date or, as

formerly, extraordinary circumstances are demonstrated.").

      We are satisfied that, throughout the course of pretrial

discovery, "plaintiff demonstrated contumacious behavior, ignored

court orders, and obstructed discovery of information that is

directly      relevant"    to    his     personal      injury    claim.         Fik-

Rymarkiewicz, 430 N.J. Super. at 471.               Considering the totality

of the circumstances, the sanctions imposed were not unjust or



                                        12                                  A-4540-16T4
unreasonable.   We conclude the motion judge did not abuse her

discretion and affirm the dismissal with prejudice.

    Affirmed.




                              13                       A-4540-16T4
