Plaintiff Alexa Rivera, on her on behalf and on behalf of her minor children, filed a lawsuit due to injuries they suffered in an automobile accident in 2018 when her disabled vehicle was struck by a Mack truck owned by defendant Campbell’s Auto Express (“Campbell’s”). She filed a lawsuit, suing the driver, Donald Ayusa and Campbell’s. The issue in A.D. v. Ayusa, 2021 N.J. Super. Unpub. LEXIS 1156 (App. Div. June 17, 2021), was whether the trial court judge mistakenly exercised his discretion in dismissing the complaint with prejudice due to the plaintiff’s failure to timely provide discovery responses.
The plaintiff’s complaint was dismissed without prejudice in August 2019 when she failed to provide discovery. When no motion to restore was made within 60 days, as provided under Rule 4:23-5(a)(2), the defendants then filed a motion to dismiss the lawsuit with prejudice.
This motion was opposed by plaintiff’s counsel, who cross-moved to reinstate the complaint with responses to the overdue discovery. The defendants argued that the responses were “woefully inadequate” and plaintiff had not responded to the defendants’ supplemental interrogatories. The plaintiff’s counsel contended that no supplemental interrogatories were ever served upon plaintiff.
The trial court judge granted the motion to dismiss, basing its ruling on plaintiff’s failure to serve answers to the supplemental interrogatories, and apparently overlooked the dispute as to whether they were ever served.
The plaintiff then appealed this dismissal to the Appellate Division. The Court found that the trial court judge had overlooked the safeguards built into Rule 4:23-5(a) that must be followed before a lawsuit can be dismissed with prejudice for failure to answer discovery. The trial court should have ensured that the delinquent party had filed an affidavit, as required by this rule, that counsel served the client with the order of dismissal without prejudice, which had to be accompanied by a specific notice “explaining the consequences of failure to comply with the discovery obligation and to file and serve a timely motion to restore” and further that the client had been served with additional notification of the pendency of the motion to dismiss with prejudice.
Additionally, appearance by the attorney for the delinquent party at the return date of the motion hearing is mandatory. Here, the trial court judge decided the motion on the papers with no oral argument. Further, there was no affidavit filed by the plaintiff’s counsel of the required notifications to the plaintiff.
The Appellate Division concluded that the trial court mistakenly exercised its discretion to dismiss this case with prejudice because (1) the trial court failed to review the plaintiff’s answers to interrogatories and resolve their adequacy and determining whether supplemental interrogatories had ever been served and (2) ensuring that plaintiff’s counsel had served plaintiff with the original dismissal order and the required notices under Rule 4:23-5(a). Hence, the dismissal with prejudice order was reversed and the case remanded back to the trial court.
