SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-0485- 22
NORTH JERSEY HIP AND KNEE CENTER, Plaintiff-Appellant,

v. JANET QUEVEDO and AMY L. PETERSON, Defendants/Third-Party Plaintiffs-Respondents,

v. AIMAN RIFAI, D.O.,Third-Party DefendantRespondent.

_________________________

Submitted January 17, 2024

– Decided February 5, 2024 Before Judges Sumners and Perez Friscia. On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L

- 1905

- 21.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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- 0485

- 22 Michael S. Harrison, attorney for appellant (Stacy B. Fronapfel, on the briefs). Margolis Edelstein, attorneys for respondent Amy L. Peterson (Kyle L. Wu, of counsel and on the brief).
PER CURIAM Plaintiff North Jersey Hip and Knee Center, P.C. a ppeals from a July 18,
2022 order denying its motion to reinstate its complaint that had been dismissed with prejudice for failure to comply with a court o rder pursuant to Rule 4:23

- 2(b), and a September 16, 2022 order which denied r econsideration. After a review of th e arguments on appeal, the record, and the applicable law, we reverse and remand because a sanction short of dism issal was warranted

. I. We discern the relevant facts and procedural histo ry from the record. Th is matter involved a letter of protection di spute aris ing from $183,107.30 in medical bill s allegedly owed for services plaintiff rendered to Janet Quevedo after an automobile accident. Plaintiff alleges it received a letter of protection fro m defendant Amy Peterson, Esq., who was Quevedo's per sonal injury attorney. Plaintiff treated Quevedo for her injuries from Oc tober 2016 to November
2018. In February 2017, defendant advised plaintiff's phy sician, Aiman Rifai,3 A- 0485

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D.O. , by letter that she legally represented Quevedo in a personal injury action. The letter acknowledged plaintiff's treatment, note d Quevedo did not have "personal auto insurance," and advised that any med ical "itemized bills " were to be submitted to the provided insurance company "directly for fee sched uling." The letter further asserted defendant "w[ould] prot ect [plaintiff's] customary and reasonable fees to the extent . . . available from third party recovery when the case [wa]s concluded provided [plaintiff] timely fo rwarded to [defendant's] office a copy" of the bills submitted

. On June 10, 2 021 , plaintiff filed a five-count complaint against Qu evedo and defendant seeking damages for the billed medica l services, attorney's fees, interest, and costs. On July 15, defendant filed a n answer, counterclaim, and third-party complaint against Dr. Rifai. Plaintiff filed an answer to the counterclaim and Dr. Rifai answered the third-party complaint. On August 30, defendant filed an amended answer. On October 6, defendant served plaintiff , "via email only ," with a request for answers to interrogatories, a notice to produce, and a request for admissions. Defendant also moved to change tracks and to extend the discovery end date. On October 22, the motion judge granted t he request, transferred the matter from Track I to Track II , and ordered a March 24, 2022 discovery end date. The judge4 A- 0485

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thereby shorten ed the discovery period and the delineated discovery dates requested, requiring written discovery be provided "no later than " Nov ember 30, and depositions to "take place no later than" Decem ber 30. The judge also

comment ed , "Nothing [] has been done to date . . . It is really not that complicated." Having not received the requested written discovery , on January 18, 2022, defendant se rved via email a good faith deficiency letter in compliance with Rule 1:6 -2(c). Two days later, defendant served plaintiff via emai l and regular mail with a deposition notice of Dr. Rifai, scheduled for February 17. On February 16, one day before the noticed deposition, plaintiff informed defendant via email that Dr. Rifai was un available. On March 2, defendant moved to dismiss the complaint witho ut prejudice pursuant to Rule 4:23 -5(a)(1) and with prejudice pursuant to Rules 4:23 -4 and
4:23 -2(b)(3), which plaintiff opposed

. A new motion judge granted the motion to dismiss the complaint without prejudice under Rule 4:23 -5(a)(1) for failure to provide discovery, denied dismissal with prejudi ce, and compelled Dr. Rifai "to appear for deposition within [thirty] days of t he date of [the] order" or else "face sanctions as permitted by the rules of the co urt up to and including5 A- 0485

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dismissal with prejudice ." The complaint was apparently dismissed as we ll against Quevedo, who was in default for failing to file an answer. On April 13, defendant served plaintiff via email a nd regular mail with a notice of deposition for April 21. On April 20, on e day before the noticed deposition, plaintiff informed defendant that Dr. R ifai was un available. On May 22, defendant moved to dismiss the complaint with p rejudice under Rule 4:23

- 4, failure to appear for a deposition, and Rule 4:23 -3, failure to comply with a court order, which plaintiff did not oppose. Befor e the motion's May 25 return date , plaintiff served answers to the written discovery r equests. On May 27, the judge granted the motion to dismiss with prejudice. Citing Rule 4:23 -2(b)(3), the judge found plaintiff "elected to wil lfully ignore [ the ] court's directive" and therefore dismissal with pre judice was appropriate. 1 On July 18, the judge denied plaintiff's motion to vac ate dismissal and reinstate the complaint

. Thereafter, plaintiff moved for reconsideration. On September 16, the judge issued an oral decision and entered an order denying reconsideration. The judge found defendant "failed to respond to

1 We recognize that while a motion to dismiss with pr ejudice under Rule 4:23

- 5(a)(2) would have been premature as the requisite sixty days since the order dismissing the complaint without prejudice had not passed, defendant separately moved to dismiss with prejudice under Rule 4:23 -2(b)(3).6 A- 0485

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communications concerning discovery and court order s" and, in the present motion, failed to "provide[] any reasons as to why it did not respond to discovery communications." Default judgment was entered agai nst Quevedo on January 13, 2023. Before us, plaintiff argues the judge abused her di scretion by failing to consider alternat iv e sanctions and imposing the ultimate sanction of a dismiss al with prejudice; and imposing an unjust and unreason able sanction.
II. "[T]he standard of review for dismissal of a compla int with prejudice for discovery misconduct is whether the trial court abu sed its discretion." Abtrax Pharms., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 5 17 (1995). Moreover, a trial court's decision on a discovery matter is "entitled to substantial deference and will not be overturned absent an abuse of discretio n." DiFiore v. Pezic, 254 N.J. 212, 228 (2023) (quoting State v. Stein, 225 N.J. 5 82, 593 (2016))

. I n addressing the appropriate penalty for fa iling to abide by a n order , "the court must . . . carefully weigh what sanction is t he appropriate one, choosing the approach that imposes a sanction consistent wit h fundamental fairness to both parties." Williams v. Am. Auto Logistics, 226 N.J. 117, 125 (2016) (alteration in original) (quoting Robertet Flavors, In c. v. Tri-Form Constr., Inc. ,7 A- 0485

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203 N.J. 252, 282-83 (2010)). In its selection of a sanction, a court must consider "[t]he varying levels of culpability of de linquent parties." Georgis v. Scarpa, 226 N.J. Super. 244, 251 (App. Div. 1988). "The extent to which [one party] has impaired [the other's] case may guide th e court in determining whether less severe sanctions will suffice." Willi ams, 226 N.J. at 125 (alterations in original) (quoting Gonzalez v. Safe & Sound Sec. Corp., 185 N.J. 100, 116 (2005)). When determining whether dismiss al is appropriate, courts "should assess the facts, including the willfulness of the violation, the ability of plaintiff to produce the [evidence], the proximity of trial, and prejudice to the adversary, and apply the appropriate remedy." Casi nelli v. Manglapus, 181 N.J. 354, 365 (2004). The "ultimate sanction of dismissal" is to be used "only sparingly." Abtrax Pharms., 139 N.J. at 514 (quoting Zaccardi v . Becker, 88 N.J. 245, 253 (1982)). "If a lesser sanction than dismissal suff ices to erase the prejudice to the non-delinquent party, dismissal of the complain t is not appropriate and constitutes an abuse of discretion." Georgis, 226 N.J. Super. at 251. "The dismissal of a party's cause of action, with prejud ice, is drastic and is generally not to be invoked except in those cases in which th e order for discovery goes to the very foundation of the cause of action, or wher e the refusal to comply is8 A- 0485

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deliberate and contumacious." Abtrax Pharms., 139 N.J. at 514 (quoting Lang v. Morgan's Home Equip. Corp., 6 N.J. 333, 339 (1951 )). "It is well-settled that the sanction of dismissal with prejudice for a proc edural violation must be a recourse of last resort. " Conrad v. Michelle & John, Inc., 394 N.J. Super. 1, 11 (App. Div. 2007) (citing Tucci v. Tropicana Casino & Resort, Inc., 364 N.J. Super. 48, 52 (App. Div. 2003) ). The failure to comply with an order to produce disc overy pursuant to Rule
4:23 -2(b) allows for dismissal "with or without prejudi ce":

If a party . . . fails to obey an order to provide or permit discovery, including an order made under R. 4:23 -1, the court in which the action is pending may make such orders in regard to the failure as are just, and am ong others the following: (1) An order that the matters regarding which the o rder was made or any other designated facts shall be tak en to be established for the purposes of the action in accordance with the claim of the party obtaining th e order; (2) An order refusing to allow the disobedient part y to support or oppose designated claims or defenses, or prohibiting the introduction of designated matters in evidence; (3) An order striking out pleadings or parts thereo f, or staying further proceedings until the order is obey ed, or dismissing the action or proceeding or any part the reof with or without prejudice, or rendering a judgment by default against the disobedient party;9 A- 0485

- 22 (4) In lieu of any of the foregoing orders or in ad dition thereto, an order treating as a contempt of court t he failure to obey any orders. In lieu of the foregoing orders or in addition ther eto, the court shall require the party failing to obey the o rder to pay the reasonable expenses, including attorney's f ees, caused by the failure, unless the court finds that the failure was substantially justified or that the oth er circumstances make an award of expenses unjust. [ R. 4:23 -2(b).]
III. It bear s noting from the inception that we do not condone the dila tory pace at which plaintiff prosecuted its action and or its failure to respond to discovery demands. As plaintiff readily acknowledged, "its f ailures in timely providing discovery should[ not] have gone unsanctioned." Nevertheless, we concur with plaintiff 's argument that the judge erroneously dismissed its complaint with prejudice , under Rule 4:23 -2(b)(3), for failing to comply with the judge's Ma rch 23, 2022 order when lesser sanctions were available

. As the judge correctly recited in her brief written s tatement of reasons accompanying the May 27 order, the motion to dismis s was unopposed and plaintiff's representative had canceled the noticed deposition. However, the judge failed to address at any point that plaintiff had served an untimely April10 A- 0485

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13, 2022 deposition notice on defendant. The notic e was served only eight days before the scheduled deposition date of April 21

— despite the requirement that

" no t less than [ten]-days['] notice" be provided pursu ant to Rule 4:14 -2(a). 2 Notably, April 21 was the last day to complete the deposition in accordance with the judge's March 23 order. The judge's March 23 o rder did not schedule a specific deposition date or permit a "shorten[ ed ] . . . time for taking the deposition." R. 4:14 -2(b). Thus, by the date defendant served the depo sition notice, there was insufficient time to provide notice under the Rule and to comply with the judge's order. In her oral reconsideration decision, the judge stated plaintiff had "proper and effective notice f rom defendant['s] . . . counsel in that regard" without further explanation. 3 There is no support for that

statement in the record. Therefore, we conclude the failure to re consider the

2 As we do not have the motion papers filed below, we cannot discern if defendant's attorney made a "good faith attempt" to confer with plaintiff's attorney to resolve scheduling Dr. Rifai's depositi on in accordance with Rule 1:6 -2( c)

.
3 We note it is unclear whether the judge analyzed the motion for reconsideration pursuant to Rule 4:42 -2 , reconsideration of interlocutory orders. See Lawson v. Dewar, 468 N.J. Super. 128, 134 (App. Div. 2021) (addressing the distinctions between motions for reconsideratio n under Rule 4:49 -2, which "applies only to motions to alter or amend final judgmen ts and final orders" and "doesn't apply when an interlocutory order is chall enged" pursuant to Rule 4:42

- 2).11 A- 0485

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ultimate sanction of dismissal of plaintiff's compl aint with prejudice despite an untimel y deposition notice served on defendant and the availability of lesser

sa nctions was mistaken use of discretion

. See Georgis, 226 N.J. Super. at 251.
W e further observe the judge did not consider that pri or to the return date of the motion to dismiss with prejudice, plaintiff ha d served its answers to interrogatories and responses to the notice to prod uce. The judge noted in her oral reconsideration decision that "[p]laintiff all ege[d] that it did not receive [d]efendant's discovery requests until March 2, 202 2," and had "served [discovery], 'on or about', May 25, 2022 " before the return date of the motion to dismiss. It appears from the record the judge gave little consideration to counsel's representation they did not receive the t wo emailed discovery requests, and that plaintiff had served the written discovery before the dismissal with prejudice

. These considerations, in addition to the untimely deposition notice, weighed in favor of a lesser sanction. We also observe that wh en the original motion judge granted the track change, he shortened the 300 -day discovery period provided under Rule 4:24 -1; thus, less time for discovery was afforded. See R. 4:24 -1 (providing "all proceedings referred to in [ R. ] 4:10 -1 to [ R. ] 4:23 -4 inclusive shall be completed12 A- 0485

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within the time frame for each track as hereafter p rescribed counting from the date the first answer is filed" and prescribing "30 0 days" for "Track II " ). For these reasons, the drastic sanction of dismissa l was unwarranted. The re existed lesser alternat iv e sanctions to address plaintiff's failure to complete the deposition. See, e.g., R. 4:23 -2(b)(4) (permitting the court "require the party failing to obey the order to pay the reas onable expenses, including the attorney's fees, caused by the failure"). We are constrained to reverse the orders which denied plaintiff's motions to reinstate the complaint and for reconsideration. We remand for further proceedings consistent with this opinion. We express no view regarding the lesser sanction that should be imposed

. Reversed and remanded. We do not retain jurisdiction.