SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2975-16T3

CHRISTIE WYSSENSKI,

Plaintiff-Appellant,

v.

CHRISTOPHER P. STATILE and

CHRISTOPHER P. STATILE, PA,

Defendants-Respondents.

Argued July 2, 2018 – Decided July 18, 2018

Before Judges Carroll and Rose.

On appeal from Superior Court of New Jersey, 

Law Division, Bergen County, Docket No. L4325-14.

George J. Cotz argued the cause for appellant.

Marc A. Raso argued the cause for respondents 

(Raso Legal Group, LLC, attorneys; Marc A. 

Raso, on the brief).

PER CURIAM 

 Plaintiff Christie Wyssenski appeals from an order dismissing 

her complaint against defendants Christopher P. Statile and 

Christopher P. Statile, PA with prejudice pursuant to Rule 4:23-

NOT FOR PUBLICATION WITHOUT THE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-2975-16T3

5(a)(2) for failure to provide discovery, and from an order denying 

her motion for reconsideration. Because we cannot find on this 

record that the judge abused her discretion by dismissing 

plaintiff's complaint with prejudice, we affirm. 

 On May 17, 2014, plaintiff filed a complaint against 

defendants, her former employers, alleging violations of the New 

Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49, the New 

Jersey Wage and Hour Law, N.J.S.A. 34:11-56a to -56a30, and the 

Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -14. 

Thereafter, the parties filed several discovery motions, including 

motions to dismiss the complaint for discovery failures, to 

reinstate the case, to compel discovery, and to quash certain 

subpoenas. Since the parties are well familiar with this tortured 

procedural history, we reference only the most pertinent portions 

to lend context to the present appeal. 

 On April 14, 2015, defendants filed a motion to dismiss 

plaintiff's complaint without prejudice for failure to provide 

more specific answers to interrogatories and more specific 

responses to requests for production. Plaintiff thereafter 

provided defendants with certain information. Consequently, on 

May 28, 2015, defendants withdrew their dismissal motion, without 

prejudice to the right to refile it. 
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 On November 20, 2015, the trial court granted an extension 

of the discovery end date, and set deadlines for the completion 

of outstanding discovery. On February 19, 2016, the court granted 

defendant's second motion to dismiss the complaint without 

prejudice, based on plaintiff's failure to comply with the November 

20, 2015 order. 

 On June 10, 2016, the court granted plaintiff's motion to 

restore the case to the trial calendar, subject to payment of the 

applicable restoration fee. R. 4:23-5(a)(1). The trial court 

conducted a case management conference on June 17, 2016, in an 

effort to move the case forward. On July 21, 2016, the parties 

forwarded a revised consent order to the court, again extending 

the discovery deadlines. 

 On August 17, 2016, defendants filed a third motion to dismiss 

the complaint without prejudice. Defendants cited plaintiff's 

failure to respond to defendants' third discovery demands that had 

been served on February 16, 2016. Rather than resorting to the 

sanction of dismissal, on September 2, 2016, the court instead 

ordered plaintiff to provide certified responses to defendants' 

third discovery demands within ten days. If plaintiff failed to 

comply, the order directed defendants' counsel to "submit a 

[c]ertification to the [c]ourt, on notice to plaintiff's counsel, 

at which time this matter will be dismissed without prejudice." 
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 On September 21, 2016, defense counsel certified that 

plaintiff failed to comply with the September 2 order. Plaintiff's 

counsel replied in opposition the following day. On November 4, 

2016, the court found "from the submissions of both counsel that 

plaintiff has failed to comply with the [o]rder of September 2, 

2016, in that she has failed to provide certified responses to 

interrogatories despite having been given the opportunity to do 

so." Consequently, the court entered an order again dismissing 

plaintiff's complaint without prejudice pursuant to Rule 4:23-

5(a)(1). 

 On November 7, 2016, plaintiff moved to vacate the dismissal 

order and restore the case to the trial calendar. On December 6, 

2016, the court denied the motion. In a comprehensive written 

statement of reasons that accompanied the order, the motion judge 

chronicled the "unusually problematic" history of "discovery 

disputes" that "caused this case to age unnecessarily." The judge 

noted the case was then two years and seven months old, and there 

had been five prior discovery extensions. The judge found 

plaintiff had yet to supply certified responses to defendants' 

third discovery demands. Accordingly, dismissal without prejudice 

remained warranted because plaintiff's discovery responses were 

deficient pursuant to Rule 4:17-4(a) (requiring interrogatories 

to be answered "under oath") and Rule 4:18-1(b)(2) (requiring a 
5 A-2975-16T3

party responding to a document production request to "swear or 

certify" that the answer is "complete and accurate"). 

 On January 3, 2017, defendants moved for dismissal with 

prejudice pursuant to Rule 4:23-5(a)(2). The motion was originally 

returnable on January 20, 2017. On January 23, the court entered 

an order adjourning the motion to February 3, 2017. The order 

directed plaintiff's counsel to appear on the return date and show 

cause why the complaint should not be dismissed with prejudice, 

and to comply with the requirements of Rule 4:23-5(a)(2) prior to 

the hearing date. 

 Plaintiff and her counsel attended the February 3, 2017 

hearing. Following oral argument, the court dismissed plaintiff's 

complaint with prejudice, finding plaintiff had failed to cure the 

discovery defaults and had not moved to vacate the previously 

entered order of dismissal without prejudice. Plaintiff filed a 

timely motion for reconsideration, which the court denied on March 

7, 2017. This appeal followed. 

 On appeal, plaintiff argues the trial court abused its 

discretion in dismissing the complaint rather than imposing some 

less severe sanction. Plaintiff also contends the court improperly 

proceeded under Rule 4:23-5, and that her improperly certified 

answers to interrogatories and responses to the third demand to 

produce should have been deemed acceptable. We disagree. 
6 A-2975-16T3

 "[T]he standard of review for dismissal of a complaint with 

prejudice for discovery misconduct is whether the trial court 

abused its discretion[.]" Abtrax Pharm. v. Elkins-Sinn, Inc., 139 

N.J. 499, 517 (1995). We will decline to interfere with the 

exercise of that discretion unless we view an injustice has been 

done. St. James AME Dev. Corp. v. City of Jersey City, 403 N.J. 

Super. 480, 484 (App. Div. 2008) (citing Cooper v. Consolidated 

Rail Corp., 391 N.J. Super. 17, 23 (App. Div. 2007)). 

 Here, the record clearly shows the motion judge scrupulously 

adhered to the procedural safeguards established in Rule 4:23-5. 

The rule imposes a duty on the motion judge "to take action to 

obtain compliance with the requirements of the rule." A & M Farm 

& Garden Ctr. v. Am. Sprinkler Mech. LLC, 423 N.J. Super. 528, 532 

(App. Div. 2012). Rule 4:23-5 codifies a two-step procedural 

paradigm that must be strictly adhered to before the sanction of 

dismissal of a complaint with prejudice for failing to answer 

interrogatories or provide other discovery can be imposed. St. 

James, 403 N.J. Super. at 484. These procedural requirements must 

be scrupulously followed and technically complied with. Sullivan 

v. Coverings & Installation, Inc., 403 N.J. Super. 86, 95 (App. 

Div. 2008). 

 Step one requires the party aggrieved by the delinquent 

party's failure to fulfill its discovery obligations to move to 
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dismiss the complaint without prejudice. R. 4:23-5(a)(1). To 

ensure the delinquent party is aware of its derelictions and has 

the opportunity to correct them, the rule further provides that: 

Upon being served with the order of dismissal 

or suppression without prejudice, counsel for 

the delinquent party shall forthwith serve a 

copy of the order on the client by regular and 

certified mail, return receipt requested, 

accompanied by a notice in the form prescribed 

by Appendix II-A of these rules, specifically 

explaining the consequences of failure to 

comply with the discovery obligation and to 

file and serve a timely motion to restore. If 

the delinquent party is appearing pro se, 

service of the order and notice hereby 

required shall be made by counsel for the 

moving party. 

[R. 4:23-5(a)(1).] 

 Following compliance with the procedures set out in step one 

of the rule, the aggrieved party may then move to dismiss the 

complaint with prejudice. Rule 4:23-5(a)(2) provides that: 

the party entitled to the discovery may, after 

the expiration of 60 days from the date of the 

order, move on notice for an order of 

dismissal or suppression with prejudice. The 

attorney for the delinquent party shall, not 

later than 7 days prior to the return date of 

the motion, file and serve an affidavit 

reciting that the client was previously served 

as required by subparagraph (a)(1) and has 

been served with an additional notification 

in the form prescribed by Appendix II-B, of 

the pendency of the motion to dismiss or 

suppress with prejudice. In lieu thereof, the 

attorney for the delinquent party may certify 

that despite diligent inquiry, which shall be 

detailed in the affidavit, the client's 
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whereabouts have not been able to be 

determined and such service on the client was 

therefore not made. If the delinquent party 

is appearing pro se, the moving party shall 

attach to the motion a similar affidavit of 

service of the order and notices or, in lieu 

thereof, a certification as to why service was 

not made. Appearance on the return date of 

the motion shall be mandatory for the attorney 

for the delinquent party or the delinquent pro 

se party. The moving party need not appear 

but may be required to do so by the court. 

The motion to dismiss or suppress with 

prejudice shall be granted unless a motion to 

vacate the previously entered order of 

dismissal or suppression without prejudice has 

been filed by the delinquent party and either 

the demanded and fully responsive discovery 

has been provided or exceptional circumstances 

are demonstrated. 

[R. 4:23-5(a)(2).] 

 Although we agree that the two-step procedure of Rule 4:23-5 

is designed to compel the discovery rather than to dismiss the 

complaint, Adedoyin v. Arc of Morris County Chapter, Inc., 325 

N.J. Super. 173, 180 (App. Div. 1999); Pressler & Verniero, Current 

N.J. Court Rules, cmt. 3 on R. 4:23-5 (2016), here we are satisfied 

that the motion judge afforded plaintiff multiple opportunities 

to provide the certified discovery responses in order to avoid 

dismissal of the complaint. Given the long history of discovery 

delays, we cannot find the judge abused her discretion on this 

record. 

 Affirmed.