SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A - 2906
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JACQUELINE JALIL, LUISA ROJAS, and TANIA MENA, Plaintiffs
- Respondents ,

v. PILGRIM MEDICAL CENTER and DR. NICHOLAS CAMPANELLA, Defendants
- Appellants.

_________________________________

Submitted May 2, 2017
– Decided Before Judges Fasciale and Sapp
- Peterson. On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L
- 7913
- 13. Crew Schielke, attorney for appellants . Deutsch Atkins, P.C., attorneys for respondents (Ad am J. Kleinfeldt and Kathryn K. McClure, of counsel and on the brief; Michael Malatino, on the brief).
PER CURIAM Pilgrim Medical Center (PMC) and Nicholas V. Campanella, M.D. (Dr. Campanella) ( collectively defendants) appeal from a March 4, NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court . " A lthough 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.

May 9, 20172 A - 2906
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2016 order denying defendant's cross - motion to vacate default judgment, quash an information subpoena, reinstate an answer, and extend discovery. Judge Dennis F. Carey , who was thoroughly familiar with the case, entered the order and rendered an oral opinion. We a ffirm. In October 2013, Jacqueline Jalil, Luisa Rojas, and Tania Mena ( c ollectively plaintiffs), filed a complaint against defendants alleging violation s of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5
- 1 to
- 49 . In February 2014,
defend ants file d an answer. Thereafter, the parties proceeded to
pre - trial discovery.
In April 2 014, plaintiffs propounded interrogatories and a notice to produce documents. Defendants failed to respond. In September 2014, plaintiffs' counsel notified defendants' counsel about the deficiency. Defendants ignored the notice. Plaintiffs then filed a motion to suppress defendants' answer without prejudice pursuant to Rule 4:2 3
- 5(a)(1) for failure to answer interrogatories . In November 2014, defendants served plaintiffs with interrogatory answers and responses to plaintiffs' notice to produce. P laintiffs ' counsel withdrew the motion , but wrote defendants' counsel a letter identifying the deficien cies in discovery.3 A - 2906
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Defendants' counsel did not respond to the l etter . In May 2015, plaintiffs ' counsel sent a sixteen
- page deficiency letter itemizing the inadequate responses that went to the foundation of the cause of action . Th e letter provided specifics as to the discovery problem s and stated that defendants responded "ambiguously" to "nearly every [d]ocument [r]equest," and explained that many requests went unanswered. Once again,
d efendants' counsel did not respond.
In M ay 2015, plaintiffs filed a second motion to suppress defendants' answer without prejudice pursuant to Rule 4:23
- 5(a)(1) for failure to answer interrogatories . P laintiffs also filed a motion to compel production of the outstanding documents pursuant
to Rule 4:23
- 5(c). In June 2015, defendants' first counsel withdrew and a new attorney filed a substitution of attorney. Both lawyers received notice of the motions. On June 26, 2015, t he judge granted both motions, which were unopposed. H e suppressed defendants' answer without prejudice for failure to answer interrogatories pursuant to Rule 4:23
- 5(a)(1) and (2) ; and on the same date, he compelled defendants to provide by July 12, 2015 , more specific responses to plaintiffs' document request pursuant to Rule 4:23
- 5(c). Plaintiffs' counsel properly served the orders on the new attorney , which defendants duly ignored .4 A - 2906
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On July 21, 2015, plaintiffs moved to suppress defendants' answer pursuant to Rule 4:23
- 2(b), not Rule 4:23
- 5(a)(2), arguing that defendants failed to comply with the Ju ne 2015 order compelling production of documents by a date certain. Defendants did not oppose the motion. On August 7, 2015, the court suppressed defendants' answer with prejudice. The r ecord reflects plaintiffs' counsel properly served that order on defendants' new attorney.
In September 2 015, and on notice to counsel, the court scheduled a proof hearing for October 15, 2015 . At the proof hearing, which defendants and their coun sel failed to appea r , plaintiffs testified about their employment, termination, and economic and emotional distress damages. In November 2015, plaintiffs ' counsel filed a motion for attorneys' fees and costs.
O n the return date of that motion, defendants ' counsel filed opposition only to the fee application. On December 4, 2015, the
court entered final judgment by default. Thereafter, plaintiffs recorded a lien on their default judgment under Docket No. J
021645
- 16. Plaintiffs engaged in supplementary proceedings by serving several information subpoenas. Defendants failed to respond, which resulted in plaintiffs filing a motion to enforce litigant s ' rights in January 2016. That month, a third attorney for5 A - 2906
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defendants filed a partial substitution of attorney and enter ed

a n appearance as defendants' co
- counsel. In March 2016, co
- counsel filed another substitution of attorney after defen dants' second counsel withdrew.
O n February 10, 2016, d efendants filed a cross
- motion to
vacate defa ult judgment, quash plaintiffs' subpoenas, reinstate defendants' answer and reopen discovery for a period of 120 days. On March 4, 2016, the court denied defendants' cross
- motion, and in a separate order, the court granted plaintiffs' motion to enforce li tigants' rights. The judge denied defendants' motion to vacate default judgment and wrote on the order that defendants did not show a meritorious defense or excusable neglect pursuant to Rule 4:50
- 1. The judge stated in his oral opinion that defendants d id not oppose the motion to suppress with prejudice and did not oppose the request to schedule a proof hearing. In denying defendants' cross
motion, Judge Carey considered the arguments and stated further
that [a] s far as excusable neglect goes, it is

cl ear to this court, without question, that the attorneys representing the
-- the defendant throughout the course of this litigation ha [ve] been extremely neglectful, dilatory and has j ust basically ignored the file. But plaintiff [ s ' ] counsel have gone out of their way to notice them, to try to contact them and despite all of the notices and6 A - 2906
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- 1. Defendants also contend that
the judge failed to follow the two
- step process of suppressing an answer pursuant to Rule 4:23
- 5(a)(1) and (2). They contend that plaintiffs circumvented this rule by prematurely movin g to suppress the answer with prejudice.
We conclude that defendants ' arguments as to the suppression of their answer with prejudice are untimely and without sufficient merit to warrant discussion in a written opinion. R. 2:11
- 3(e)(1)(E). Turning t o defendants' Rule 4:50
- 1 contentions, w e review the trial court's decision on a motion to vacate a default judgment for abuse of discretion. Deutsche Bank Nat'l Trust Co. v. Russo , 429 N.J. Super. 91, 98 (App. Div. 2012). " ' The trial court's determinati on under [ Rule 4:50
- 1] warrants substantial deference, ' and the abuse of discretion must be clear to warrant reversal." Ibid. (alteration in original) (quoting U.S. Bank Nat'l Ass'n v. Guillaume , 209 N.J. 449, 467 (2012)) . "[An] abuse of discretion only arises on demonstration of 'manifest error or injustice[,]'" Hisenaj v. Kuehner , 194 N.J. 6, 20 (2008) (quoting State v. Torres , 183 N.J. 554, 572 (2005)) , and occurs when the trial judge's7 A - 2906
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"decision is made without a ration al explanation, inexplicably departed from established policies, or rested on an impermissible basis." Milne v. Goldenberg , 428 N.J. Super. 184, 197 (App. Div. 2012) (quoting Flagg v. Essex Cty. Prosecutor , 171 N.J. 561, 571 (2002)). We will not disturb a default judgment unless the failure to appear or otherwise defend was excusable under the circumstances and unless the defendant has a meritorious defense to both the cause of action and damages. Guillaume , supra , 209 N.J. at 468
- 69. Attorney carelessn ess or lack of proper diligence does not constitute excusable neglect unless "attributable to [an] honest mistake" that is compatible with due diligence or reasonable prudence. Baumann v. Marinaro , 95 N.J. 380, 394 (1984) (quoting
In re T , 95 N.J. Super. 228, 235 (App. Div. 1967)) ; see also Quagliato v. Bodner , 115 N.J. Super. 133, 138 (App. Div. 1971) (holding that excusable neglect under Rule 4:50
- 1(a) does not include an attorney's tardiness on the day a motion he was opposing was listed and consequent ly argued and disposed of in his absence). Even assuming that defendants have a meritorious defense, which defendants have not established on this record, there exists no excusable neglect attributable to an honest mistake that was compatible with due d iligence or reasonable prudence. We reject

a ny suggestion that defendants' attorneys did not receive notices8 A - 2906
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on the various motions or proof hearing . Such an assertion i s belied by the record . Defendant s fare no better under Rule 4:50
- 1(f), which permits courts to vacate judgments for "any other reason justifying relief from the opera tion of the judgment or order." The Court has stated
that " [b] ecause of the importance that we attach to the finality of judgments, relief under Rule 4:50
- 1(f) is available only when 'truly exceptional circumstances are present.'" Hous. Auth. of Morristown v. Little , 135 N.J. 274, 286 (1994) (quoting Baumann
supra , 95 N.J. at 395 ) ; see also Guillaume , supra , 209 N.J. at 484. The rule is limited to "s ituations in which, were it not applied, a grave injustice would occur." Little , supra , 135 N.J. at 289. Defendant's inexcusable fail ure to repeatedly respond to ongoing discovery deficiencies and an order to compel production
of documents does not quali fy as exceptional circumstances warranting relief under this subsection. Affirmed.