SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-1143- 22 CHRISTIAN GONZALES, Plaintiff-Appellant,

v.WILFREDO MEJIAMENDOZA and UBER, Defendants-Respondents.

___________________________

Argued February 12, 2024

– Decided September 3, 2024 Before Judges DeAlmeida and Bishop-Thompson. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No . L- 0737

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Josue Jean Ba p tiste argued the cause for appellant (Jean-Baptiste & Associates, attorneys; Josue Jean Ba p tiste , on the briefs). Daniel W. Szep argued the cause for respondent Wilfredo Mejia-Mendoza (Goetz Schenker Blee & Wi ederhorn, attorneys; Scott Barry Lipowitz and Daniel W. Szep , of counsel and on the brief).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 1143

- 22 Lisa M. Only argued the cause for respondents Uber Technologies, Inc. I/P/A Uber Corporation (Goldberg Segalla LLP, attorneys; John W. Meyer, of counsel and on the brief).
PER CURIAM Plaintiff Christian Gonzales appeals from the Novem ber 18, 2022 order denying his motion for reconsideration of the Octob er 7, 2022 order dismissing his complaint with prejudice pursuant to Rule 4:23 -5(a)(2) for failure to respond to discovery, comply with an August 26, 2022 order to produce the outstanding discovery, and attend the scheduled independent med ical examination (IME) , and denying his motion to reinstate his complaint. Having reviewed the record and considered the parties' contentions, we affirm.
I.
In February 2020, plaintiff filed a complaint against defendants alleging personal injuries because of an automobile accident . During discovery, plaintiff failed to provide responses to Mejia-Mendoza's inte rrogatories and notice to produce. 1 It was not until defendants' second "good faith" le tter did plaintiff provide initial answers to defendants' Form A inter rogatories. Plaintiff's

1 Mejia-Mendoza conducted discovery on behalf of co- defendant, Uber, so we will refer to Mejia-Mendoza's conduct in discovery as defendants' conduct for simplicity.3 A- 1143

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answers listed several health care providers that r endered treatment related to the October 12, 2019 accident and disclosed a previ ous motor vehicle accident from 2013. Although plaintiff's answers referenced attached medical bills and records, none were provided. Plaintiff likewise di d not provide responses to defendants' supplemental interrogatories and notice to produce and failed to sign the requested HIPAA releases. In attempt to cure the deficient responses to Form A interrogatories , plaintiff resent his responses with the missing attachments: one medica l bill, several pages of handwritten examination notes, and four pages of MRI tests. Defendants consented to plaintiff's request for an additional two weeks to provide the remaining outstanding discovery respons es. Thereafter, plaintiff provided several HIPAA releases, including a signed blank release, to defendants

. Upon review of plaintiff's medical records, defenda nts requested additional information regarding the identity of th e doctor that recommended plaintiff undergo cervical and lumbar fusion surger ies, additional surgical reports , and the operative reports regarding plaintiff's epi dural injections. Defendants also requested specific responses to ten Form A interrogatories. Plaintiff did not respond.4 A- 1143

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After plaintiff failed to respond to defendant's re peated requests, defendants moved to extend discovery and to dismiss plaintiff's complaint without prejudice. On August 27, 2021, an order was entered granting defendants' motion to dismiss without prejudice and denying the motion to extend discovery as moot. Plaintiff still made no attempt to cure the deficiencies. On Novem ber 17 , defendants moved to dismiss plaintiff's complaint w ith prejudice because plaintiff's discovery responses remained outstandin g. Plaintiff's request for an extension was granted so as to provide "fully respo ns[ive] discovery to defendants." Plaintiff served the additional and supplemental di scovery responses b ut did not provide the requested HIPAA releases nor pr oduce the additional medical records for the providers who had recommend ed surgery or performed injections

. Plaintiff also sent an email confirmation he was e xamined by an orthopedist and surgery was recommended, but did no t provide the name of the doctor, treatment records, or HIPAA authorizations. Nonetheless, defendants withdrew their motion. Although plaintiff's complaint had not been reinstated, defe ndants scheduled a defense medical examination. Plaintiff failed to attend the5 A- 1143

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examination or notif

y defendants of his need to reschedule. When defen dants later rescheduled the examination, plaintiff again failed to appear. After plaintiff failed to appear for the second ex amination , defendants moved to dismiss plaintiff's complaint with prejudi ce for failing to attend the examination, or in the alternative, compel the exam ination. A July 22, 20 22 order followed, compelling plaintiff to produce the outstanding discovery, appear at the examination, and move to reinstate hi s complaint after the examination was conducted. The order al so stated if plaintiff failed to attend the examination, his motion to reinstate his compla int would be denied. Plaintiff prematurely moved to reinstate his complaint, resul ting in the court's denial of his motion on August 26, 2022, which once again com pelled plaintiff to attend the examination. Nevertheless, plaintiff again failed to appear for the scheduled examination. Defendants thereafter moved to dismiss plaintiff's complaint with prejudice for his failure to comply with both the J uly 22 and August 26, 2022 orders. Two days before the hearing date, plaintiff's couns el filed a certification advising that he provided notice of the pending dis missal motion to his client in accordance with Appendix II B.6 A- 1143

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On October 7, 2022, following oral argument, the t rial judge granted defendants' motion to dismiss plaintiff's complaint with prejudice based on his failure to provide discovery prior to the motion to reinstate his complaint, failure to comply with discovery as set forth in the August 26, 2022 order, and the failure to attend the court-ordered examination. Plaintiff's cross-motion to reinstate his complaint was denied. Plaintiff moved for reconsideration, which was denied in an oral decision on November 18, 2022

. This appeal followed. Plaintiff argues on appeal that the trial judge er red in "refusing to evaluate whether discovery had been fully compliant before d eciding to dismiss a case with prejudice." Plaintiff also argues that a hear ing should be required prior to the trial court issuing an order to dismiss a compl aint with prejudice. Lastly, plaintiff contends that the trial judge has an obli gation to give an "innocent" plaintiff his "day in court." Plaintiff's argument s lack merit. We review a trial court's grant or denial of a moti on to reconsider with deference. Hoover v. Wetzler, 472 N.J. Super. 230, 235 (App. Div. 2022) (citing Branch v. Cream-O-Land Dairy, 244 N.J. 567, 582 (20 21)). "Motions for reconsideration are governed by Rule 4:49 -2, which provides that the decision to grant or deny a motion for reconsideration rests within the sound discretion7 A- 1143

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of the trial court." Pitney Bowes Bank, Inc. v. AB C Ca ging Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 2015). In reviewing a trial court's dismissal of a complai nt with prejudice for discovery misconduct, we apply an abuse of discreti on standard. Abtrax Pharms., Inc. v. Elkins-Sin, Inc. 139 N.J. 499, 517 (1995 ). Under this standard, a trial court's decision on a discovery matter is "e ntitled to substantial deference and will not be overturned absent an abuse of discr etion." DiFiore v. Pezic, 254 N.J. 212, 228 (2023) (quoting State v. Stein, 225 N .J. 582, 593 (2016))

. Plaintiff repeatedly failed to abide by his discove ry obligations. He failed to produce fully respons iv e answers to interrogatories , to f ully produce the treatment records, to disclose the healthcare provi ders names, and to appear for three scheduled defense examinations. The trial judge wa s permitted to dismiss the complaint with prejudice under Rule 4:23 -5(b)(3). As aptly stated by the trial judge: "There [was] nothing in the [p]lainti ff's opposition . . . brief that deals with that discovery. It does not say that we provided all of the requested discovery matters that were the subject of the prio r dismissal without prejudice." We discern no abuse of discretion based on plaintif f's deliberate and contumacious noncompliance with two court orders. Gonzalez v. Safe & Sound8 A- 1143

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Sec. Corp., 185 N.J. 100, 115 (2005). The trial ju dge properly exercised the discretion under Rule 4:23 -5(b)(3). We are likewise satisfied the trial judge reviewed and considered the evidence submitted by plaintiff in support of his r econsideration motion at the time of the denial. D'Atria v. D'Atria, 242 N.J. S uper. 392, 401 (Ch. Div. 1990). Thus, we have no cause to disturb the trial judge's decision. Affirmed.