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 

NOT FOR PUBLICATION WITHOUT THE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.
2 A-4540-16T4

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 
3 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.
4 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 
5 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. 
6 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 
7 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. 
8 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).
9 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. 
10 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 
11 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
12 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. FikRymarkiewicz, 430 N.J. Super. at 471. Considering the totality 

of the circumstances, the sanctions imposed were not unjust or 
13 A-4540-16T4

unreasonable. We conclude the motion judge did not abuse her 

discretion and affirm the dismissal with prejudice. 

Affirmed.