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 July 12, 2024 

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 pro 

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NOT FOR PUBLICATION WITHOUT THE 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 parties in the case and its use in other cases is limited. 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 resulted in the trial court 

dismissing with prejudice the answer and affirmative defenses of defendant 

Germaine N. Johnson for his failure to comply with discovery obligations. 

Having reviewed the parties' submissions, the record, and law, we affirm. 

Johnson is the property manager and landlord for the property owned by 

co-defendant Mattie B. Johnson McAdams1 in Newark. Plaintiff entered a 

residential lease agreement with defendants to rent an apartment. After moving 

into the apartment, she made several complaints to defendants regarding the 

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 affirmative 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. 
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interrogatories, and notice to produce propounded by plaintiff on November 13. 

However, the discovery was not served on Johnson until November 23. 

In a "good faith" letter dated January 8, 2019, plaintiff's counsel gave 

Johnson ten days to respond to the outstanding discovery to avoid a motion. 

Johnson did not respond and a second ten-day good faith letter was sent in 

February. Johnson again did not respond. Plaintiff moved to 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. Instead, he claimed that the 

discovery responses were resent on August 21. Following oral argument, on 

August 30, Johnson's pleading was dismissed with prejudice for failure to 

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 prejudice followed by a motion 

to vacate default judgment, although it had not entered. Johnson failed to 

appear for oral argument for both motions scheduled in January 2020. 

Accordingly, the court rescheduled the hearing date to February 4. In 
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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, Johnson filed motions 

for recusal, summary judgment, sanctions, and reconsideration. The court 

denied all the motions, finding Johnson lacked standing because he had not 

moved to restore his pleading. 

On January 29, 2021, plaintiff's complaint was administratively dismissed 

for lack of prosecution pursuant to Rule 1:13-7. Two weeks later, plaintiff 

moved to reinstate her complaint to the active trial 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 granted 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] 
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time. Instead, the court reserve[d] judgment on [those] 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 plaintiff'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 25, 2021. 

Following the hearing, the trial judge entered an Order 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 trial court abused its discretion 

by violating due process, failing to impose sanctions, 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 complaint with prejudice for 

discovery misconduct is whether the trial court abused its discretion." Abtrax 
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Pharms., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 517 (1995). Furthermore, a 

trial court's decision on a discovery matter is "'entitled to substantial deference 

and will not be overturned absent an abuse of discretion.'" 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 Rule 4:23-5 is a 

prerequisite for dismissal of an answer. First, the non-delinquent party may 

move for dismissal without prejudice for noncompliance with discovery 

obligations. R. 4:23-5(a)(1). If the motion is granted, specific procedures for 

serving the order of dismissal must be followed. Ibid. 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 discovery 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 "shall 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 fully 
7 A-0827-21

responsive discovery has been provided or exceptional 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, 403 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 Johnson's argument that 

he produced the discovery responses. The record demonstrates otherwise. The 

court correctly found discovery was not propounded on Johnson until November 

23, 2018, so he could not have logically responded to discovery before that date. 

Moreover, Johnson failed to produce the outstanding discovery responses after 

he received two ten-day good faith letters and never 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 motion and its 

consequences, and therefore, the trial court did not abuse its discretion in 

dismissing his answer. 

We have often stated in the context of sanctions for discovery violations, 

dismissal of a claim for failure to comply with discovery is the "last and least 
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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 deficiency; therefore, the 

"ultimate" sanctions imposed were 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 decision. R. 2:11-3(e)(1)(E). 

Affirmed.