NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3617-17T2

JOSIE SALAZAR and 

BIJAY SHAH,

Plaintiffs-Appellants,

v.

MKGC + DESIGN, MILTON

KISLINGER and HELEN LEU,

Defendants-Respondents.

____________________________

Argued March 20, 2019 – Decided April 8, 2019

Before Judges Nugent, Reisner, and Mawla.

On appeal from Superior Court of New Jersey, Law 

Division, Hudson County, Docket No. L-3095-16.

Jessica A. Tracy argued the cause for appellants 

(Curcio Mirzaian Sirot, LLC, attorneys; Jessica A. 

Tracy, of counsel and on the briefs).

Robert F. Ball argued the cause for respondents (Weber 

Gallagher Simpson Stapleton Fires & Newby, LLP, 

attorneys; Robert F. Ball, of counsel and on the brief;

Mark J. Heftler, on the brief).

The opinion of the court was delivered by 

NUGENT, J.A.D.

APPROVED FOR PUBLICATION

April 8, 2019

APPELLATE DIVISION
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A-3617-17T2

Plaintiffs appeal several orders culminating in the involuntary dismissal 

at trial of their action against defendants alleging breach of a home improvement 

contract and consumer fraud. The trial judge granted defendants' motion for an 

involuntary dismissal because plaintiffs could not prove damages. Plaintiffs 

could not prove damages because another judge had granted defendants' pretrial 

motion to bar plaintiffs' damage claims as a sanction for failing to respond to 

defendants' notice to produce documents. 

The judge who granted defendants' pretrial motion for sanctions, 

including their request to bar expert testimony, did so even though defendants

had filed the motion in violation of multiple court rules. Defendants filed the 

motion belatedly, without demonstrating good cause to do so, and despite their 

never having demanded an expert report from plaintiffs. They did not certify

they were not delinquent in their discovery obligations, which they were, as they 

had not responded to plaintiffs' discovery. They also disregarded the rule 

requirements that are prerequisites to having a motion for discovery sanctions

listed for disposition. 

The grant of defendants' motion despite their multiple missteps resulted 

in the functional equivalent of a dismissal of plaintiffs' complaint with prejudice 

for a discovery violation; a sanction the Supreme Court has characterized as 
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A-3617-17T2

"drastic" and has cautioned against imposing if a lesser sanction will suffice. 

Abtrax Pharm., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 514 (1995). Perhaps 

more significantly, the sanction could be viewed as the uneven-handed 

administration of court rules, resulting in an unjust determination and the 

needless expenditure and delay caused by a meaningless trial; all anathema to 

the purpose for which the rules exist. See R.1:1-2. We thus reverse and remand 

for further proceedings. 

I.

This civil action arose out of a home improvement contract, which

plaintiffs alleged defendants failed to complete, leaving them with an 

uninhabitable house. Plaintiffs filed a six-count complaint in August 2016, and 

defendants filed an answer and counterclaim the following month. Defendants 

served plaintiffs with requests for admission and a notice to produce documents, 

including documentary evidence of plaintiffs' damage claim. Defendants did 

not serve interrogatories. Their demand for documents did not demand experts'

reports. Plaintiffs served defendant with interrogatories and a notice to produce 

documents. None of the parties answered discovery. 

The discovery end date was July 25, 2017. In October the parties 

proceeded to mandatory arbitration as required by Rule 4:21A-1(a)(3). The 
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A-3617-17T2

arbitrator rendered an award for plaintiffs. Defendants rejected the award and 

demanded a trial de novo, as permitted by Rule 4:21A-6(b)(1). Two weeks after 

arbitration and three months after the discovery end date, defendants filed the 

motion that resulted in the orders from which plaintiffs have appealed. Plaintiffs 

filed a cross-motion seeking an order "Extending Discovery with Consent of All 

Parties." 

Defendants entitled their motion for discovery sanctions "Motion for 

Plaintiffs' Failure to Serve Discovery and to Bar Plaintiffs' Late Service of 

Liability or Damage Experts Reports Pursuant to Rule 4:23-5(3)(b) [sic]." They 

supported the motion with a certification from their attorney. In his

certification, the attorney did not explain why he did not file the motion before 

the discovery end date. He summarized the pleadings, explained plaintiffs had 

not responded to defendants' requests for admission and notice to produce 

documents, and omitted to disclose defendants had not responded to plaintiffs'

interrogatories and notice to produce documents. 

Plaintiffs informed the motion judge in their cross-motion that defendants

had not responded to plaintiffs' discovery demands. Nevertheless, the judge

granted defendants' motion and denied plaintiffs' cross-motion. He barred 

plaintiffs from presenting any evidence of damages not documented during 
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A-3617-17T2

discovery, knowing plaintiffs had produced no such documentary evidence, as 

attested to by defendants in their motion. He gave this explanation, typed below 

his signature on the order: "The [discovery end date] expired on July 25, 2017. 

The documents sought to be introduced were only made available on the eve of 

arbitration. This results in substantial and undue prejudice to the 

[d]efendant[s]." 

The motion judge denied plaintiffs' motion for reconsideration. In the 

decision he delivered from the bench at the close of oral argument, the judge 

noted that "discovery rules are designed to reach the substantive merits of a 

matter rather than permitting reliance on procedural mechanisms that might 

result in concealment and surprise." He did not, however, cite to any rule 

concerning the timing of motions seeking sanctions for discovery violations, nor 

did he cite to the requirements of any rule authorizing such sanctions. Citing 

Abtrax, 139 N.J. at 521, for the proposition that the "underlying purpose [of the 

discovery rules] is to assure full disclosure of all material facts and documents 

to the parties, to the end the trial will serve the ends of justice rather than 

function as a trap for the unwary," the judge neither noted nor discussed 

defendants' violation of the same discovery rules and consequent undermining 

of their purpose.
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Accepting the representation of plaintiffs' counsel that his non-compliance 

with discovery was not intended to obfuscate the issues in the case, the judge

explained: 

The fact still remains that the prejudice that will result 

in this case, both procedurally and also substantively, 

particularly since the discovery end date has passed, is 

not persuasive to the [c]ourt to allow for 

reconsideration of this case or this particular matter 

barring the late service of the liability and the damages 

expert report.

For that reason, the judge denied plaintiffs' motion for reconsideration. 

For reasons unnecessary to detail in this opinion, the trial proceeded, 

notwithstanding the pretrial order barring plaintiffs from proving damages. 

Plaintiffs developed the proofs they were permitted to present. Defendants 

moved for an involuntary dismissal. The court granted the motion, based on the 

absence of any damage proofs. The court also dismissed defendants' 

counterclaim. This appeal followed. 

II.

On appeal, plaintiffs argue it was fundamentally unfair for the motion 

judge to bar them from proving damages when defendants had committed the 

identical discovery violations. Plaintiffs add that the motion judge compounded 

his error by overlooking defendants' non-compliance with virtually every 
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prerequisite for filing a motion for sanctions based on discovery violations. In 

doing so, plaintiffs argue, the court imposed a draconian sanction unauthorized 

by any court rule applicable to a discovery violation. Plaintiffs also contend the 

motion judge erroneously denied their motion for reconsideration, and the trial 

judge erred by involuntarily dismissing their action. Last, they contend the 

motion judge erred by denying their motion to extend discovery.

Defendants do not dispute that they did not comply with their discovery 

obligations, nor do they dispute that they did not comply with the provisions of 

certain rules concerning discovery sanctions. Rather, they argue a court has 

inherent discretionary power to impose sanctions for failure to make discovery, 

a power the motion judge did not abuse. They point out that plaintiffs did not 

argue to the motion judge several points they now raise on appeal. Defendants 

assert that because the motion judge did not abuse his inherent power to impose 

sanctions for failure to make discovery, he properly denied plaintiffs' motion for 

reconsideration, and the trial judge properly dismissed plaintiffs' action when 

they failed to prove damages at trial.
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III.

A.

We begin our analysis with some fundamental observations. In our 

judicial system, "justice is the polestar and our procedures must ever be moulded 

and applied with that in mind." New Jersey Highway Auth. v. Renner, 18 N.J. 

485, 495 (1955) (citing X-L Liquors v. Taylor, 17 N.J. 444, 454 (1955)). "There 

is an absolute need to remember that the primary mission of the judiciary is to 

see justice done in individual cases. Any other goal, no matter how lofty, is 

secondary." Santos v. Estate of Santos, 217 N.J. Super. 411, 416 (App. Div. 

1986).

In that vein, the Court Rules "shall be construed to secure a just 

determination, simplicity in procedure, fairness in administration and the 

elimination of unjustifiable expense and delay." R. 1:1-2(a). For that reason, 

"[u]nless otherwise stated, any rule may be relaxed or dispensed with by the 

court in which the action is pending if adherence to it would result in an

injustice." Ibid. 

Fairness in administration of the Court Rules requires that they be applied 

evenhandedly and, to the extent possible, uniformly. The current Court Rules 

have been amended to achieve these, as well as other objectives: 
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A-3617-17T2

The project known as Best Practices, resulting in a 

number of significant rule amendments effective 

September 2000, was undertaken by the Conference of 

Civil Presiding Judges for the purpose of attempting to 

improve the efficiency and expedition of the litigation 

process as well as to restore state-wide uniformity to 

the wide range of discretionary and increasing disparate 

judicial responses to such matters, among others, as the 

resolution of discovery problems and disputes, the 

fixing of trial calendars and adjournments of trial 

dates. . . .

[Pressler & Verniero, Current N.J. Court Rules, cmt. 4 

on R. 1:1-2 (2019) (emphasis added).]

With these principles in mind, and applying an abuse-of-discretion 

standard of review, Quail v. Shop-Rite Supermarkets, Inc., 455 N.J. Super. 118, 

133 (App. Div. 2018), we turn to the rules applicable to the motion at issue on 

this appeal.1

B.

Rule 4:24-2 is entitled "Motions Required to Be Made During Discovery 

Period." The rule provides in pertinent part: "Unless the court otherwise permits 

for good cause shown, motions to compel discovery and to impose or enforce 

sanctions for failure to provide discovery must be made returnable prior to the 

expiration of the discovery period." R. 4:24-2(a). When defendants filed their 

 

1

 This appeal does not involve sanctions imposed for violating a discovery 

order. The trial court had issued no such order.
10 A-3617-17T2

motion for sanctions, they offered no explanation for their failure to file the 

motion within the discovery period. That they had not done so was obvious 

from their certification, in which they referred to the arbitration and the 

arbitrator's award. For that reason alone, the motion judge would have acted 

well within his discretion by denying the motion. Carbis Sales, Inc. v. 

Eisenberg, 397 N.J. Super. 64, 81 (App. Div. 2007). 

On the other hand, the rule expressly permits a judge to consider a

belatedly filed motion for good cause shown. Here, however, defendants did 

not even attempt to make a showing of good cause, and the trial court did not 

find defendants had made such a showing. 

Defendants had ample opportunity during the discovery period to compel 

plaintiff to provide discovery responses. Their failure to do so, without 

explanation, suggests they did not have good cause to wait until after the 

arbitration to file the motion. When the motion judge granted defendants' 

motion for sanctions, he emphasized the undue prejudice to them. But the 

possible prejudice was not "undue." Defendants' wholesale disregard of the 

discovery rules refutes that proposition. Moreover, in weighing the prejudice to 

the parties, we fail to discern how the possible prejudice to defendants — who 

could still offer a defense, rely on their requests for admission, and offer proofs 
11 A-3617-17T2

to support their counterclaim — was somehow greater in magnitude than the 

prejudice to plaintiffs, who the motion judge effectively barred from proving 

their case at trial. 

If a trial court declines to enforce a mandatory rule — particularly a rule 

designed to provide uniformity and fairness in its application — the court should 

explain its reasons for doing so. A brief explanation would demonstrate the 

court is not acting in an arbitrary manner and would permit appropriate appellate 

review.

C.

The Rules of General Application provide specific, mandatory 

requirements for Civil and Family Part discovery and calendar motions. Rule

1:6-2 requires, with exceptions not applicable here, the following: 

Every motion in a civil case or a case . . . involving any 

aspect of pretrial discovery or the calendar, shall be 

listed for disposition only if accompanied by a 

certification stating that the attorney for the moving 

party has either (1) personally conferred orally or has 

made a specifically described good faith attempt to 

confer orally with the attorney for the opposing party in 

order to resolve the issues raised by the motion by 

agreement or consent order and that such effort at

resolution has been unsuccessful, or (2) advised the 

attorney for the opposing party by letter, after the 

default has occurred, that continued non-compliance 

with a discovery obligation will result in an appropriate 
12 A-3617-17T2

motion being made without further attempt to resolve 

the matter. . . . 

[R. 1:6-2(c).2]

Here, defense counsel did not claim that during the discovery period he had 

made a good faith effort to resolve the matter without resorting to the motion. 

The rule that authorizes motions and sanctions concerning a party's failure 

to make discovery is Rule 4:23-5. This rule "codified 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." Thabo v. Z Transp., 452 N.J. Super. 359, 369 (App. 

Div. 2017) (citing St. James AME Dev. Corp. v. City of Jersey City, 403 N.J. 

Super. 480, 484 (App. Div. 2008)). "These procedural requirements must be 

scrupulously followed and technically complied with." Ibid. (citing Sullivan v. 

Coverings & Installation, Inc., 403 N.J. Super. 86, 95 (App. Div. 2008)).

We have explained the need for trial courts to follow the procedural 

safeguards of Rule 4:23-5:

 

2

 This subsection of Rule 1:6-2 makes an exception for actions that have "been 

specially assigned to an individual judge for case management and disposition 

of all pretrial and trial proceedings and . . . all cases pending in the Superior 

Court, Chancery Division." R. 1:6-2(b) & (c). Nothing in the appellate record 

identifies this action as such a "specially assigned" case. 
13 A-3617-17T2

The best way to foster the public confidence in our civil 

courts is to decide cases on their merits. Discovery 

rules are intended to create a level playing field for all 

litigants and promote the resolution of civil dispute on 

the merits. Judges are entrusted to ensure that these 

rules are properly and fairly enforced. 

[Id. at 371.]

Rule 4:23-5(a)(1) requires that a movant support the motion by an 

affidavit that recites the facts of the delinquent party's default, and states that 

the moving party is not in default in any discovery obligations owed to the 

delinquent party. This requirement safeguards against the unilateral imposition 

of sanctions upon one party when all parties have disregarded their discovery 

obligations. In the case before us, defendants could not provide the required 

certification because they had disregarded their discovery obligations. 

Rule 4:23-5 also authorizes a court to sanction a party who has failed to 

furnish an expert's report. The rule states: "The court at trial may exclude the 

testimony of a treating physician or any other expert whose report is not 

furnished pursuant to [Rule] 4:17-4(a) to the party demanding same." R. 4:23-

5(b) (emphasis added). Rule 4:17-4(a) provides in pertinent part: "If the 

interrogatory requests the name of an expert or treating physician of the 

answering party or a copy of the expert's or treating physician's report, the party 

shall comply with the requirements of paragraph (e) of this rule." 
14 A-3617-17T2

Defendants in this case invoked the authority of Rule 4:23-5(b) to bar 

plaintiffs from presenting expert testimony at trial even though they had never 

demanded an expert report pursuant to Rule 4:17-4(a), as they had never served 

interrogatories. Defendants and the motion judge overlooked this deficiency in 

defendants' motion. 

The provisions of Rule 4:23-5 are intended, among other objectives, "[t]o 

ensure the delinquent party is aware of its derelictions and has the opportunity 

to correct them." Thabo, 452 N.J. Super. at 369. Here, like Thabo, "the system 

failed because both the motion judge and the attorney representing the moving 

party failed to follow the strict procedural requirements of Rule 4:23-5." Id. at 

371.

IV.

We conclude by reiterating the Supreme Court's admonition that because 

dismissal with prejudice is "the ultimate sanction," it should be imposed "only 

sparingly" and "normally . . . ordered only when no lesser sanction will suffice 

to erase the prejudice suffered by the non-delinquent party." Robertet Flavors, 

Inc. v. Tri-Form Const. Inc., 203 N.J. 252, 274 (2010). Here, that admonition 

was overlooked when the motion judge, in effect, dismissed plaintiffs' complaint 

by precluding them from presenting proofs of damage at trial. 
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Defendants' motion was filed in disregard of the following requirements, 

deficiencies readily apparent from the motion and supporting certification: (1) 

the motion was filed out of time without a showing of good cause (Rule 4:24-

2(a)); (2) defendants did not certify they had made a good faith effort to obtain 

the discovery before filing the motion (Rule 1:6-2(c)); (3) defendants did not 

certify they were not in default in discovery obligations owed to plaintiffs (Rule

4:23-5(a)(1)); and, (4) defendants invoked Rule 4:23-5(b) to bar plaintiffs from 

presenting expert testimony at trial even though defendants had never demanded 

an expert as required by Rule 4:23-5(b). 

Plaintiffs were subjected to the functional equivalent of the "ultimate 

sanction" even though defendants had not only disregarded their own discovery 

obligations, but had also disregarded in their entirety the mandatory provisions 

of the rules authorizing the imposition of sanctions for failing to make 

discovery. The trial court misapplied its discretion by disregarding these 

mandates without an explanation for doing so and by imposing the equivalent of 

the ultimate sanction when the moving parties were delinquent and lesser 

sanctions would have sufficed to erase the prejudice to all parties. We thus 

vacate the order precluding plaintiffs from presenting expert or other testimony 
16 A-3617-17T2

concerning their damages. We also vacate the order denying their motion for 

reconsideration, as well as the order involuntarily dismissing their case. 

We remand this matter to the trial court for further proceedings. The trial 

court shall conduct a conference and issue an order imposing reasonable 

deadlines for completion of discovery, dispositive motion practice, and if 

necessary, trial. Because defendants had a full opportunity to present their 

counterclaim and have not cross-appealed from its dismissal at trial, there is no 

need to litigate that issue a second time.

Reversed and remanded for further proceedings consistent with this 

opinion. We do not retain jurisdiction.