SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-0367-22 

SIRIA HERNANDEZ and FELIX 

PEREYRA, her husband, 

 Plaintiffs-Appellants, 

v. 

LA FORTALEZA, INC.,1

 Defendant-Respondent, 

and 

JAMES ZANAKIS, GHI 

CORPORATION, and GHI INC., 

 Defendants. 

_______________________________

Submitted November 14, 2023 – Decided January 5, 2024 

Before Judges Mayer and Paganelli. 

On appeal from the Superior Court of New Jersey, Law 

Division, Passaic County, Docket No. L-2877-19. 

1

 We note defendant-respondent is identified in the record as both La Fortaleza, 

INC. and La Fortaleza Restaurant, INC. 

NOT FOR PUBLICATION WITHOUT THE 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-0367-22

McHugh and Imbornone, PA, attorneys for appellants 

(Salvatore Imbornone, Jr., on the brief). 

Kenneth Lowell Rose, attorneys for respondent 

(Kenneth L. Rose, of counsel and on the brief; Jeffrey 

M. Zajac, on the brief). 

PER CURIAM 

 Plaintiffs Siria Hernandez (Hernandez) and Felix Pereyra (Pereyra), her 

husband, appeal from a September 26, 2022 order dismissing with prejudice 

their complaint, and an October 17, 2022 order awarding defendant La 

Fortaleza, Inc.'s attorney's fees and costs. We affirm. 

 We glean the facts and procedural history from the trial and motion 

records. Hernandez alleges that she "was caused to slip and fall on an uneven 

and raised defect [of] the walking surface" on defendant's property. The matter 

proceeded to a virtual trial, with the issue of defendant's liability to be tried first. 

 The trial began on July 26, 2022. In discussing some of the mechanics of 

the virtual trial, the attorneys and the trial judge reviewed where witnesses could 

be seated and the presentation of exhibits. Hernandez' attorney stated "she 

w[ould] be the first witness and [he] w[ould] not talk to her about her testimony 

at any time during the testimony, even if [they] br[oke] for lunch." 
3 A-0367-22

 Hernandez was summoned as the first witness. The trial judge explained 

to her "you must be alone in the room from where you provide your testimony, 

except the co-plaintiff, your husband may also be in the room." 

 During Hernandez' direct testimony, her attorney showed a photograph of 

the restaurant and "the area where the fall occurred." The following exchange 

transpired: 

Attorney: Now, do you see the area where you fell?

Hernandez: Yes. On my way to the bench, on my way

over there. 

Attorney: And where - - where did you fall in 

comparison to where the lady in red is standing? 

Hernandez: It was more or less on my way - - on my

way to the bench, around there, right there. 

Attorney: Now, are you able, Ms. Hernandez, to use

the cursor on your computer to point to the area where 

you fell? 

Hernandez: Let me see. Like that, on my way there, I 

tripped on my way there and that's when I fell, on my 

way. 

At this point, the trial judge interjected: 

Trial judge: Okay. No one can tell you anything in 

your room. Is anybody speaking to you? 

Hernandez: Give me a second. My husband. 
4 A-0367-22

 . . . . 

Trial judge: Okay. I need your husband to stand behind 

you while you're doing this. 

Hernandez: Okay. 

Trial judge: And, Mr. Pereyra, you must remain quiet 

and not say anything or - - we need you to stand back, 

sir. Okay. Somebody is talking in the room that's not 

visible on the screen. Nobody can be telling Ms. 

Hernandez what to do. 

Hernandez' attorney explained that Hernandez was having trouble manipulating 

the cursor on the screen. Therefore, the court recessed the trial for lunch. The 

trial judge instructed Hernandez' attorney to "straighten[] out" issues with the 

exhibits and the utilization of the cursor. 

Defense counsel raised an objection asserting "[o]n [the] critical issue of 

liability of this nature, no coaching is tolerable, zero coaching." The trial judge 

reiterated the point to plaintiffs' attorney: 

Nobody else should be in the room but her husband. I 

made that clear. That was the oath. If anybody else is 

in that room, they must leave. Her husband must be

visible meaning behind her. He is not to open his 

mouth, do you understand that, until it is his 

opportunity to testify. 
5 A-0367-22

 During the recess the following conversation between Hernandez, 

Pereyra, and their attorney was recorded2: 

[Attorney]: This is the important part of the case. You 

show this picture, okay? Okay? and I'm going to say, 

I don't know if we got this far already but do you

recognize this picture? Yes. This side of the 

restaurant? Does it show – does it fairly and accurately 

show the way the restaurant looked on the day that you 

fell? Yes. You must say that or the picture cannot be 

good. Okay? So, I want you – and the answer has to 

be, yes, because if you say, no, we can't do it. But you 

will say the same thing, I'm going to ask you the same 

question later. 

Anyway, okay. Do you see – do you see the bench that 

you were going to at the time you fell? You're going to 

answer, yes, right. And I will say to you, I'm going to 

move the cursor – and I will say I'm going to move the 

cursor. You tell me where is the bench? So, when I get 

up here, just, right there. Okay? The bench, right next 

to the lady. Okay? Okay. 

Now in this picture, do you see where you fell and I'm 

going to put it right where the – where the bench – from 

where the bench it, where did you fall? 

I will move the map. It's out of the (indiscernible). So, 

after we identify the bench, I'm going to put the [cursor] 

right here now and say, do you see the area where you 

fell? Yes. Okay. Now, how do I have to move the –

you – because it has to be her voice. How do I move 

2

 The judge explained "Courtsmart . . . was not running . . . . [h]owever because 

judiciary staff was in the courtroom, the[] back-up recording system . . . [was] 

running . . . . [and] record[ed] the dialogue between [p]laintiff[s'] . . . trial 

counsel . . . and [p]laintiffs." 
6 A-0367-22

the cursor to find the place where you fell? So you 

should - - 

Pereyra: Back. 

[Attorney]: Okay. So, down, right, like that? 

[Attorney]: So, you say, move down. So, I'm going to 

move it, move it, move it. You have to tell me when to 

stop. Right there, right? Okay. How about this 

distance from the curb? Would it be right this way or 

further here? It would be in the middle? 

Pereyra: Yeah. 

[Attorney]: Okay. So, we're going to – first we find 

the bench. That's the easy part. Then I'm going to say, 

okay, I'm going to put the cursor right in front of the 

bench. Now, tell me how to move the cursor to show

how you fell and what you would have to say, you have 

to move – you could either say down or to the camera, 

okay, which you prefer. 

(Plaintiffs speaking in Spanish). 

[Attorney]: Okay. So, you're saying down? So, I'll 

say, okay, I'm going to start to move it down and tell 

me when to stop. I'm going to go down, down, down,

down, down. 

Hernandez: Stop. 

[Attorney]: Okay. How about this way now, from 

curb? 

(Plaintiffs speaking Spanish). 
7 A-0367-22

[Attorney]: Well, here or further? Right in the middle? 

Okay. Good.

Pereyra: You don't have to say exactly in the middle. 

When we move it like this, you say, stop. Stop right 

there like this here. It doesn't have to go exactly in the 

middle –

[Attorney]: Okay. 

Pereyra: -- because the middle, how come she 

(indiscernible) exactly in the middle. She don't know 

After the recess, the trial judge reiterated her instructions that Pereyra "remain 

behind [Hernandez] in a chair" and "he should not be opening his mouth to say 

anything." 

Defense counsel "continu[ed the] objection about coaching." Further, 

defense counsel advised that plaintiffs' attorney's microphone was on during 

recess and he "listened to [plaintiff's attorney] coaching the witness with the 

witness' husband." Defense counsel requested a mistrial. 

In response to the trial judge's question regarding whether "there was any 

additional coaching to the witness" "during the . . . break," plaintiffs' attorney 

stated that he "did show the witness the scenario of moving the cursor along the 

exhibit." 

The trial judge polled the jurors, to make certain they had not overheard 

the recess conversation. The judge concluded the "jury itself was not tainted." 
8 A-0367-22

The parties returned to virtual court the following day. Defense counsel 

renewed his request for a mistrial or, alternatively, a dismissal of plaintiffs' 

complaint with prejudice. The trial judge, after listening to the recording, found: 

(1) plaintiffs and their counsel had already been warned against coaching; (2) 

she "had to direct plaintiffs not to offer each other advice or direct each other 

how to answer"; (3) she "had to direct th[e] litigants to sit together on screen 

so[] as to remove any resemblance of impropriety"; and (4) plaintiffs' attorney 

"exacerbated the concerns of coaching by sharing his screen unmuted during a 

recess and revealing conversations . . . to be coaching the witnesses, to direct as 

to where the slip and fall occurred in the liability only portion of a bifurcated 

trial."

 The trial judge concluded that she was compelled to declare a mistrial. 

She determined a mistrial was necessary because Hernandez was in the middle 

of her testimony and there was a "possibility of taint as to a critical issue in a 

liability only bifurcated trial—where . . . Hernandez fell." Moreover, "[t]he 

prejudicial effect in this circumstance [wa]s far too great and balance weigh[ed] 

too heavy in [the] misadministration [of] justice, that there [wa]s nothing that 

c[ould] be done other than to order a mistrial . . . ." 
9 A-0367-22

 The trial judge ordered "[p]laintiffs and/or their [c]ounsel . . . to reimburse 

the [c]ourt for the costs of the interpreter and court services, which is the 

transcription . . . ." Further, the judge permitted defendant to file a "motion for 

dismissal with prejudice . . . . due to the issues of fundamental prejudice . . . ." 

On September 23, 2023, the judge heard the parties' arguments on 

defendant's motion for dismissal with prejudice. As part of her review, she noted 

that her court clerk and two bilingual paralegals from defense counsel's office 

heard the recess conversation. Therefore, in addition to the transcript of the 

conversation, she considered the that "the court clerk confirmed that [plaintiffs' 

attorney] was attempting to facilitate a response to generate a factual possibility 

of liability." Moreover, she noted one of the paralegals certified that 

"Hernandez state[d] that she thought she tripped by the bench when shown a 

photo by [plaintiffs' attorney] pointing out where she fell." Further, the other 

paralegal certified that she "heard [Hernandez] state that it had been so long she 

didn't remember where she fell, which had not been interpreted by the court 

supplied interpreter." 

 In considering plaintiffs' opposition to the motion to dismiss, the judge 

noted plaintiffs did not rebut the paralegals' statements. Further, plaintiffs' 

argument that "it was clear from [Hernandez'] deposition testimony and her 
10 A-0367-22

meeting with the expert that she was aware of the location of her fall" was 

unavailing because Hernandez testified that she "did not go to where the incident 

happened with the expert." 

On September 26, 2023, the judge entered an order dismissing plaintiffs' 

complaint with prejudice; accompanied by a thoughtful and well-reasoned 

written opinion. The judge explained: 

The record before this court is unambiguous, and this 

court finds cause to dismiss this action with prejudice. 

The conduct of the attorney here to invite a client to 

state that an accident occurred in a particular place

when she had no independent recollection to resolve the 

issues of liability where she was the only witness to the 

fall itself introduces prejudice too great to present to the 

finder of fact. The well of information that could be 

presented to the jury has been forever poisoned. There 

is no way to sufficiently determine that [p]laintiff can 

testify, especially considering that [p]laintiff had no 

recollection of her own fall and her attorney invited her 

to perpetuate a falsity at his direction to create an issue 

of liability. 

Moreover, [p]laintiff and her counsel, as well as 

[p]laintiff's husband, had previously been corrected to 

refrain from coaching this witness during testimony. 

This court saw it appropriate at that juncture to provide 

a limiting instruction and then to direct [p]laintiff and 

her counsel that further coaching would not be 

tolerated. The directive from her trial attorney was 

clear: "this is where you fell." The directive was not

for [p]laintiff to testify as to "where you know that you 

fell or answer that you do not know." The directive was 

to create a falsity and commit fraud on this court. Such 
11 A-0367-22

is not tolerable. The bell cannot be unrung; 

[p]laintiff[s'] testimony will be forever tainted by the 

directive of [p]laintiff[s'] trial counsel. 

The judge required "[p]laintiff[s]' counsel to pay [defendant's] attorney's fees 

and costs associated with trial and th[e] motion of [d]efendant." The judge 

instructed defendant's attorney "to submit an affidavit of attorney's fees within 

[fourteen] days and permitted [p]laintiff[s]' trial counsel . . . to file an objection 

to the affidavit within [ten] days after its filing." Defense counsel filed an 

affidavit in support of attorney's fees, which plaintiffs did not oppose. 

Therefore, on October 17, 2022, the judge ordered plaintiffs' attorney to pay 

defense counsel the sum of $20,640 within thirty days.3

Here, Hernandez argues the trial judge erred in the exercise of her 

discretion because: (1) there was no fraud on the court and (2) the sanction of 

dismissal is "too severe." We disagree. 

"Findings by [a] trial judge are considered binding on appeal when 

supported by adequate, substantial, and credible evidence." Rova Farms Resort, 

Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). Therefore, 

our appellate function is a limited one: we do not

disturb the factual findings and legal conclusions of the 

trial judge unless we are convinced that they are so 

3

 On May 4, 2023, we ordered a stay of the payment of attorney's fees pending 

appeal. Plaintiff posted a supersedeas bond in accordance with Rule 2:9-5.
12 A-0367-22

manifestly unsupported by or inconsistent with the 

competent, relevant and reasonably credible evidence 

as to offend the interests of justice, and the appellate 

court therefore ponders whether, on the contrary, there 

is substantial evidence in support of the trial judge's 

findings and conclusions. 

[Ibid. (internal citations omitted).] 

The concept of fraud on the court applies to "a scheme to interfere with 

the judicial machinery performing the task of impartial adjudication, as by 

preventing the opposing party from fairly presenting his [or her] case or 

defense." Hyland v. Kirkman, 204 N.J. Super. 345, 374 (Ch. Div. 1985) 

(quoting Pfizer, Inc. v. International Rectifier Corp., 538 F.2d 180, 195 (8th Cir. 

1976)). "A finding of fraud on the court is justified only by the most egregious 

misconduct directed to the court itself, such as . . . fabrication of evidence by 

counsel . . . ." Ibid. In Triffin v. Automatic Data Processing, Inc., 394 N.J. 

Super. 237, 251 (App. Div. 2007), we held: 

[a] fraud on the court occurs "where it can be 

demonstrated, clearly and convincingly, that a party has 

sentiently set in motion some unconscionable scheme

calculated to interfere with the judicial system's ability 

impartially to adjudicate a matter by improperly 

influencing the trier or unfairly hampering the 

presentation of the opposing party's claim or defense." 

Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st 

Cir. 1989); Perna Elec. Data Sys. Corp., 916 F.Supp. 

388, 397 (D.N.J. 1995). Unlike common law fraud on

a party, fraud on a court does not require reliance. 
13 A-0367-22

Separate and distinct from court rules and statutes, 

courts possess an inherent power to sanction an 

individual for committing fraud on the court. See e.g. 

Chambers v. Nasco, Inc., 501 U.S. 32 (1991); Perna, 

916 F.Supp. at 388. 

 We conclude there is "adequate, substantial, and credible evidence" to 

support the judge's finding that plaintiffs and their attorney committed a fraud 

on the court. Rova, 65 N.J. at 484. Initially, Pereyra failed to comply with the 

judge's instruction on coaching Hernandez. Ultimately, the judge required 

Pereyra to stay in screen view by standing behind Hernandez. The judge 

admonished plaintiffs' attorney that Pereyra "should not be opening his mouth 

to say anything." 

 Moreover, plaintiffs' attorney, after indicating he would "not talk to 

[Hernandez] about her testimony at any time during the testimony, even if we 

break for lunch," proceeded "to perpetuate a falsity" by inviting, indeed 

directing, Hernandez to create an issue of liability by "stat[ing] that an accident 

occurred in a particular place when she had no independent recollection." 

 This conduct "set in motion [an] unconscionable scheme calculated to 

interfere with the judicial system's ability impartially to adjudicate a matter by 

improperly influencing the trier or unfairly hampering the presentation of the 

opposing party's claim or defense." Aoude, 892 F.2d at 1118. 
14 A-0367-22

A dismissal with prejudice is a drastic remedy, to be employed "only 

sparingly." Zaccardi v. Becker, 88 N.J. 245, 253 (1982). In determining 

whether a trial court has abused its discretion4 in dismissing an action with 

prejudice, we are guided by the manner in which the trial court has balanced the 

following factors: 

(1) the degree of the wrongdoer's culpability; (2) the 

extent of the client's blameworthiness if the wrongful 

conduct is committed by its attorney, recognizing that 

we seldom dismiss claims against blameless clients; (3) 

the prejudice to the judicial process and the 

administration of justice; (4) the prejudice to the

victim; (5) the availability of other sanctions to rectify 

the wrong by punishing culpable persons, 

compensating harmed persons, and deterring similar 

conduct in the future; and (6) the public interest.

[United States v. Shaffer Equip. Co., 11 F.3d 450, 462 

(4th Cir. 1993)5] 

In employing this standard, we find no abuse of discretion in the judge's decision 

to dismiss plaintiffs' complaint with prejudice. 

4

 Abtrax Pharms. v. Elkins-Sinn, 139 N.J. 499, 517 (1995) ("[T]he standard of 

review for dismissal of a complaint with prejudice . . . is whether the trial court 

abused its discretion, a standard that cautions appellate courts not to interfere 

unless an injustice appears to have been done.") 

5

 The factors identified in Shaffer were relied upon in Perna which we cited 

with approval in Triffin, and thus serve as a useful guide here. 
15 A-0367-22

In determining culpability, the judge described the evidence as 

"unambiguous." She found plaintiffs' attorney provided a directive to 

Hernandez, regarding the location of the accident despite Hernandez having "no 

independent recollection" of where she fell. Moreover, the attorney's actions 

followed the judge's warnings and corrective instruction involving Pereyra's 

coaching Hernandez on this same subject. Plaintiffs' and their attorney's

culpability are firmly established. 

Further, plaintiffs share the blame in the fraud. Pereyra, despite 

instructions from the judge, coached Hernandez during trial and recess regarding 

the purported location of her fall. In addition, neither Pereyra nor Hernandez 

resisted their attorney's coaching. Instead, they were willing participants in a 

scheme to provide false testimony in an ongoing trial.

Moreover, plaintiffs' and their attorney's actions "prejudice[d] . . . the 

judicial process and the administration of justice." Ibid. Prejudice is selfevident when an attorney directs a client to testify to the location of an accident 

when the client has no independent recollection. From that point forward, 

Hernandez' every utterance was suspect and her case, the "judicial process," and

"the administration of justice" were "poisoned" and "tainted" as a result. 
16 A-0367-22

Similarly, defendant was prejudiced by the coaching and "falsified" 

testimony. From its opening statement, defendant asserted that Hernandez' 

testimony was "very inconsistent" and she "did not know where she fell." 

Therefore, defendant suffered prejudice as a result of adverse counsel coaching 

Hernandez and directing her testimony as to the location of the fall in a liability 

only trial when Hernandez had "no independent recollection." 

Under these circumstances, plaintiffs' and their attorney's actions 

compelled the judge to impose the ultimate sanction of a dismissal with 

prejudice. As the judge explained, "the bell cannot be unrung; [p]laintiff's 

testimony will be forever tainted by the directive of [p]laintiff[s]' trial counsel." 

We find no monetary sanction or further corrective instructions could remove 

the "taint," permeating throughout plaintiffs' claim. 

Plaintiffs' suggestion the "[t]rial [c]ourt could have imposed lesser 

sanctions such as barring [Hernandez] from further testifying at trial and 

allowing her case to proceed with the testimony of [Pereyra] and [the] expert to 

prove liability," is unavailing. Pereyra was already implicated in the fraud, as 

he coached Hernandez during trial and during the recess. Also, his testimony 

was similarly tainted by his attorney's "directive." Further, Hernandez testified 
17 A-0367-22

that she "did not go to where the incident happened with the expert," so the 

expert's testimony is similarly untrustworthy. 

Lastly, the public interest is served by a dismissal with prejudice. "A 

misrepresentation to a tribunal 'is a most serious breach of ethics because it 

affects directly the administration of justice.'" In re Forrest, 158 N.J. 428, 437 

(1999) (quoting In re Johnson, 102 N.J. 504, 510 (1986)). Therefore, dismissal 

warns plaintiffs and their attorney that their behavior will not be tolerated and 

that their conduct was so egregious as to cause them to suffer a "drastic 

remedy"—the loss of their cause of action. Moreover, it informs other litigants 

that they risk dismissal if they commit a fraud on the court. Finally, it confirms 

for the public's benefit that the judicial system, while adversarial, requires 

truthfulness and candor above all else. See RPC 3.3 (Candor Toward the 

Tribunal). The public is served by nothing less. 

Plaintiffs argue the judge abused her discretion in ordering them to pay 

defendant's attorney's fees and costs. We note plaintiffs did not oppose the fee 

application and raised the issue for the first time on appeal. "[A]ppellate courts 

will decline to consider questions or issues not properly presented to the trial 

court when an opportunity for such a presentation is available . . . ." J.K. v. N.J. 
18 A-0367-22

State Parole Bd., 247 N.J. 120, 138 n.6 (2021) (quoting State v. Robinson, 200 

N.J. 1, 20 (2009)). 

Nonetheless, Rule 2:10-2 provides: 

Any error or omission shall be disregarded by the 

appellate court unless it is of such a nature as to have 

been clearly capable of producing an unjust result, but 

the appellate court may, in the interests of justice, 

notice plain error not brought to the attention of the trial 

or appellate court. 

"Relief under the plain error rule, R[ule] 2:10-2, at least in civil cases, is 

discretionary and 'should be sparingly employed.'" Baker v. Nat'l State Bank, 

161 N.J. 220, 226 (1999) (quoting Ford v. Reichert, 23 N.J. 429, 435 (1957)). 

Further, the rule sets "a 'high bar,' requiring reversal only where the possibility 

of an injustice is 'real' and 'sufficient . . . .'" State v. Alessi, 240 N.J. 501, 527 

(2020) (first quoting State v. Santamaria, 236 N.J. 390, 404 (2019); and then 

quoting State v. Macon, 57 N.J. 325, 326 (1971)). 

Since plaintiffs failed to oppose the application before the trial judge and 

failed, here, to address "plain error," we decline to consider their arguments on 

the award of defendant's attorney's fees and costs. 

Affirmed. We hereby vacate our order of May 4, 2023 staying the 

payment of the attorney's and costs.