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Ji Sung Kim appeals from two May 12, 2017 order s : (1) dismissing the complaint with prejudice for failure to provide NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court . " A lthough 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
- 3.2 A - 4540
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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

su stain ed 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 in i tiated this action on November 4, 2015. Defendant filed an answer, separate d efenses, a nd a demand for discovery on December 9, 2015. The demand for discovery included standard form interrogatories, supplemental interrogatories , and a notice to produce , which dema nded plaintiff produce executed authorizations to obtain his medical and prescription records. Despite multiple requests from defense counsel, plaintiff did not provide any discovery respons es , resulting in defendant fil ing a series of motions to enforce plaintiff's discovery obligations.

D efendant moved to dismiss the complaint without prejudice for failing to answer interrogatories and produce documents. While the motion was pending, plaintiff produce d uncertified discovery
responses. In response to the demand for pharmacy records, plaintiff objected, claiming th e request was overly broad. Defendant advised the court , in addition to not being certified, plaintiff's discovery responses were not based upon personal3 A - 4540
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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.

D efendant then moved to dismiss the complaint for failure to provide certified answers to interrogatories in violation of the prior order . Whi le the motion was pending , plaintiff produced additional discovery, which , again , w as 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 object ed . In the event the objection was based on the time period of the records sought, defendant reque sted 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.4 A - 4540
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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 plaintif f, 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 response s , plaintiff's counsel stated: "Upon information and belief, [p]laintiff has not had any prescriptions for the last 10 years." However, o n March 6, 2017, pla intiff 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 coun sel represented s he would supply the remaining discovery, including the authorization for the Costco Pharmacy records, within one week. Plaintiff failed
to do so. A s a result, o n 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 complied5 A - 4540
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with discovery demands and his discovery deficiencies had resulted in three motions to dismiss . Meanwhile, on Apri l 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. Howeve r, 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 rathe r than medical records. Plaintiff did not provide an executed authorization for the Costco

P harmacy records. As a courtesy, defendant supplied corrected authorizations to plaintiff 's counsel . Consequently , plaintiff had still not provided full y responsiv e discovery, having failed to provide correct authorizations for KSK Line, Affinity Radiology, and Costco Pharmacy. We further note t hese 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.6 A - 4540
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Contrary to plaintiff' s counsel's certification, fully responsive discovery responses were not attached. Plaintiff had still not provided an executed authorization for Costco P harmacy.
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 defen se counsel . The other argued plaintiff could not provide the executed authorization because the wrong form had been provid ed. Notably, the executed authorization for Costco Pharmacy records is not included in the record.

T he 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 t he 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 c opy with them, counsel admitted they did not.
Defense counsel also indicated plaintiff had not disclosed six or seven treating physicians named in the Personal Injury7 A - 4540
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Protection benefit records. Additionally, p laintiff 's answers to interrogatories state d 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 counse l, 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 ,

re ferring 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 p laintiff's counsel in light of their in consistent arguments. In contrast, t he 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
p rovide 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.8 A - 4540
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Expressing fr ustration with plaintiff's repeated failures to provide certified answers to discovery and comply with court orders, the court stated it ha d no confidence that the situation would not repeat itself even if it denied the motion to dismiss with prejudice, gr anted the motion to reinstate, and ord ered 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 "injust ice." 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

reco rds authorization . P laintiff 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 U npublished opinion s do not constitute precedent , are not binding upon any court , R ule 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).9 A - 4540
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to answer interrogator ies, 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 n ot to interfere unless an injustice appears to have been done." Abtrax Pharm s . , 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 delay ing discovery and necessitat ing a series o f discovery enforcement motions, causing defendant to incur attorney's fees and costs, and the trial court to expend judicial

resources. Plaintiff offer s 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 .10 A - 4540
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Particularly troubling is the basic nature of the discovery at issue. This is a simple personal injur y 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 obtai ning 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 R ule 4:17 or R ule 4:18 is not complied with. St. James AME Dev. Corp. v. City of Jersey City , 403 N.J. Super. 480, 484 (App. Div. 20 08); Pressler & Verniero, Current N.J. Court Rules , cmt. 1.1 on R. 4:23
- 5 (2018). The first step is dismissal without prejudice under R ule 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 w ith prejudice shall be granted unless a motion to vacate the previously entered order of11 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 circum stances 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 failu re 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) . A pplying th e s e standard s , we conclude the motion judge did not err by dismissing the complaint with prejudice. Plaintiff did not comply with the December 2, 2016 order compell ing 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. Plaintiff12 A - 4540
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did not move to reinstate the complaint within sixty days, instead waiting until May 4, 2017, to file his cross

- motion. By not supply ing an executed authorization for the Costco Pharmacy records, p laintiff failed to produc e " fully responsive discovery, "

as require d by Rule 4:23
- 5(a)(2) . See Fik

- Rymarkiewicz v. U niv. of Med. and Dentistry of N.J. , 430 N.J. Super. 469, 482 (App. Div. 2013). Accordingly , the court did not err by denying reinstate ment . P laintiff 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

o f the circumstances, the sanctions imposed were not unjust or13 A - 4540
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unreasonable. We conclude the motion judge did not abuse her discretion and affirm the dismiss al with prejudice. Affirmed.