SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-0827- 21 JACQUELINE WYNN, Plaintiff-Respondent,

v. GERMAINE N. JOHNSON, Defendant-Appellant, and
MATTIE B. JOHNSONMCADAMS, Defendant.

_______________________

Argued February 12, 2024

– Decided Ju ly 12, 202 4 Before Judges Berdote Byrne and Bishop-Thompson. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No: L

- 7058

- 18. Germaine N. Johnson, appellant, argued the cause pr o se. NOT FOR PUBLICATION WITHOUT THE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- 0827

- 21 Joseph M. Szesko argued the cause for respondent (Zavodnick, Perlmutter & Boccia, LLC, attorneys; Joseph M. Szesko, on the brief).
PER CURIAM
In this personal injury action, a discovery dispute resulte d in the trial court dismissing with prejudice the answer and affirmativ e defenses of defendant Germaine N. Johnson for his failure to comply with discovery obligations. Having re viewed the parties' submissions, the record, and la w, we affirm. Johnson is the property manager and landlord for the property owned by

co -defendant Mattie B. Johnson McAdams 1 in Newark. Plaintiff entered a residential lease agreement with defendants to rent a n apartment. After moving into the apartment, she made several complaints to defendants regarding th e bathroom. Three months later, plaintiff lost her balance when she stepped on the unscrewed drain in the shower. She struck her head on the tiled wall and sustained injuries that required surgery.
On October 4, 2018, plaintiff filed a complaint. In response, Johnson , self-represented, filed an answer and asserted affirmat ive defenses. He claimed
to have sent responses to Form C , C(2) interrogatories, supplemental

1 Default was entered against co-defendant McAdams on June 14, 2019. McAdams is not a party to this appeal.3 A- 0827

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interrogatories, and notice to produce propounded by pl aintiff on November 13. However, the discovery was not served on Johnson until November 23

. In a "good faith" letter dated January 8, 2019, pla intiff's counsel gave Johnson ten days to respond to the outstanding discovery to av oid a motion

. Johnson did not respond and a second ten-day good faith let ter was sent in February. Johnson again did not respon d. Plaintiff moved t o strike Johnson's pleading, which was not opposed. On May 30, 2019, the court suppressed and dismissed Johnson 's pleadings without prejudice pursuant to Rule 4:23 -1(a)(1)

. Johnson 's discovery remained outstanding. So, on August 5 , 2019, plaintiff moved to suppress Johnson's pleading with prejudice. Johnson opposed the motion; however, discovery was not provided. I nstead, he claimed that the discovery responses were resent on August 21. Foll owing oral argument, o n August 30, Johnson's pleading was dismissed with prejudice for failure t o provide responses to interrogatories and the notice to produce. In September 2019, Johnson filed a motion for reconsideration of the August 30 order dismissal of his pleading with prej udice followed by a motion
to vacate default judgment, although it had not ente red. Johnson failed to appear for oral argument for both motions scheduled in January 2020. Accordingly, the court rescheduled the hearing date to February 4. In4 A- 0827

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compliance with the court's directive, plaintiff's counsel notified Johnson of the February hearing date by regular and certified mail

. On February 4, 2020, the court granted Johnson's motion for reconsideration and the dismissal of his pleading was restored without prejudice and denied his motion to vacate the entry of default. Between February 4, 2020 and December 22, 2021, Joh nson filed mo tion s for recusal, summary judgment, sanctions, and recon sideration. The court denied all the motions, finding Johnson lacked stan ding because he had not moved to restore his pleading. On January 29, 2021, plaintiff's complaint was admi nistratively dismissed for lack of prosecution pursuant to Rule 1:13

- 7. Two weeks later, plaintiff moved to reinstate her complaint to the active tria l list and to dismiss Johnson's pleading with prejudice, or alternatively, enter a default judgment against defendants. Johnson opposed the motion but did not cross-move to restore his pleading even though 531 days had elapsed since his pleading was suppressed

. On March 23, 2021, the trial court partially grante d plaintiff's motion only on the reinstatement of her complaint. The order noted that the court "did not [opine] on the issue of reinstatement of the answer and entry of default at [that]5 A- 0827

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time. Instead, the court reserve[d] judgment on [t hose] issues until after the court has had an opportunity to hear oral argument from the parties." On May 18, 2021, the court heard oral argument on p laintiff's motion to dismiss Johnson's answer with prejudice pursuant to Rule 4:23 -5(a)(2). After oral argument, the court granted plaintiff's motion and entered a memorializing order. Johnson participated in the proof hearing held on October 2 5, 2021. Following the hearing, the trial judge entered an O rder for Judgment against defendants, jointly and severally, in the amount of $89,149.66. On appeal, Johnson argues the trial court committed reversible error by failing to apply the "proper" principles of law , misrepresenting the facts regarding the scheduling of oral argument, failing to comply with Rule 4:23

- 5( a)(2) concerning his appearance , and failing to perform its duties reasonably, impartially, and objectively. He also argues the t rial court abused i ts discretion by violating due process, failing to impose sanctio ns, and injecting testimony during oral argument on the motion to suppress his answer. We reject Johnson's arguments. "[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." Abtrax6 A- 0827

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Pharms., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 5 17 (1995). Furthermore, 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)). Compliance with the two-step process set forth in R ule 4:23 -5 is a prerequisite for dismissal of an answer. First, th e non-delinquent party may move for dismissal without prejudice for noncomplia nce with discovery obligations. R. 4:23 -5(a)(1). If the motion is granted, specific proce dures for serving the order of dismissal must be followed. I bid. Upon providing full and responsive discovery, the delinquent party may move to vacate the dismissal without prejudice "at any time before the entry of an order of dismissal . . . with prejudice." Ibid. Second, if a delinquent party fails to cure its di scovery delinquency, then "the party entitled to the discovery may, after the expiration of [sixty] days from the date of the order, move on notice for an order of dismissal . . . with prejudice." R. 4:23 -5(a)(2). The motion to dismiss with prejudice "sh all be granted unless" the delinquent party satisfies two requirements: (1) "a motion to vacate the previously entered order of dismissal . . . without prejudice has been filed by the delinquent party" and (2) "either the demanded and fully7 A- 0827

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responsive discovery has been provided or exception al circumstances are demonstrated." Ibid. Rule 4:23 -5(a) advances two objectives: (1) to compel discovery, thereby promoting resolution of disputes on the merits, and (2) to afford the aggrieved party the right to seek final resolution through dismissal. St. James AME Dev. Corp. v. City of Jersey City, 40 3 N.J. Super. 480, 484 (App. Div. 2008). Applying those principles, we are satisfied the trial court did not err in dismissing Johnson's answer with prejudice. We reject J ohnson's argument that he produced the discovery responses. The record de monstrates otherwise. The court correctly found discovery was not propounded on Johnson until November 23, 2018, so he could not have logically responded to discov ery before that date. Moreover, Johnson failed to produce the outstanding discovery responses after he received two ten-day good faith letters and neve r moved to reinstate his answer. Thus, we conclude the court adhered to the procedural requirements of Rule 4:23 -5(a)(2) because defendant was made aware of the mo tion and its
consequences, and therefore, the trial court did not abuse its di scretion in dismissing his answer. We have often stated in the context of sanctions fo r discovery violations, dismissal of a claim for failure to comply with dis covery is the "last and least8 A- 0827

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favorable option." Il Grande v. DiBenedetto, 366 N .J. Super. 597, 624 (App. Div. 2004). Here, a lesser sanction would not have been appropriate. Based on the record, we conclude Johnson continued to ignore plaintiff's discovery request and never attempted to cure the discovery d eficiency; therefore, the "ultimate" sanctions imposed w ere neither unjust nor unreasonable. Abtrax, 139
N.J. at 514

. We have determined that Johnson 's remaining arguments lack sufficient merit to warrant discussion in this written decisio n. R. 2:11 -3(e)(1)(E). Affirmed.