NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0034-16T1

AZIZ M. THABO,

Plaintiff-Appellant,

v.

Z TRANSPORTATION,

Defendant-Respondent.

___________________________________

Submitted September 27, 2017 - Decided

Before Judges Fuentes, Manahan and Suter.

On appeal from the Superior Court of New 

Jersey, Law Division, Passaic County, Docket 

No. L-3296-15.

Anthony J. Van Zwaren, attorney for 

appellant.

Sammarro & Zalarick, PA, attorneys for 

respondent (Stephen M. Sammarro, on the 

brief).

The opinion of the court was delivered by

FUENTES, P.J.A.D.

In this breach of contract case, the Law Division judge 

dismissed with prejudice plaintiff's complaint by imposing the 

ultimate discovery sanction provided in Rule 4:23-5. We now 

reverse and remand this matter for further proceedings because 

APPROVED FOR PUBLICATION

November 17, 2017

APPELLATE DIVISION

November 17, 2017
2 A-0034-16T1

the party who filed this motion and the Law Division judge who 

imposed this sanction failed to follow the procedural safeguards 

codified in Rule 4:23-5.

The record shows defendant did not provide the motion judge 

with competent evidence showing it complied with the strict 

notice requirements of Rule 4:23-5. Even more egregious, 

defendant received the outstanding discovery which formed the 

basis of the sanction a month before the judge dismissed 

plaintiff's complaint with prejudice. This wholesale disregard 

for the due process protections embodied in Rule 4:23-5 can 

occur only when the trial court fails to perform its basic 

gatekeeping function. 

We derive the following facts from the record developed by 

the parties at this stage of the litigation. We emphasize, 

however, that the veracity of the factual claims that form the 

basis of this cause of action are not at issue here. We do not 

express any opinion about the merits of this cause of action.

I

On July 10, 2015, plaintiff Aziz M. Thabo contacted Igor 

Nikolovski, a representative of defendant Z Transportation, in 

response to an advertisement defendant had placed in a 

publication called "Truck Paper," offering for sale a 2006 

Freightliner C1124ST – Century 112 truck for $19,600. According 
3 A-0034-16T1

to plaintiff, he made clear to Nikolovski that he was only 

looking to buy a Department of Transportation (DOT) compliant 

truck. Defendant allegedly assured plaintiff that the 2006 

Freightliner C1124ST – Century 112 truck met this requirement. 

In fact, defendant described the truck in its advertisement as 

being "DOT Ready," which plaintiff understood to mean the truck 

would pass inspection and comply with the regulations of the 

Department of Transportation and the Federal Motor Carrier 

Safety Administration.1

Plaintiff claims that when he took the truck for a test 

drive, he immediately noticed it was not DOT compliant.

Nikolovski acknowledged the deficiency and agreed to make the 

truck DOT ready, provided that plaintiff would commit to 

purchasing the truck. Plaintiff agreed and gave defendant a 

$1000 deposit as an indication of his good faith commitment to 

buy the truck. Defendant alleges it paid for the replacement 

and repair of certain parts to ensure the truck was DOT 

compliant. Defendant further alleges it told plaintiff that the 

necessary repairs had been done and the truck was ready for pick 

up on August 15, 2015. Plaintiff sent defendant a check in the 

 

1 See 49 C.F.R. 396.1 to -396.25.
4 A-0034-16T1

amount of $18,600, representing the balance of the purchase 

price.

Before plaintiff took possession of the truck, defendant 

informed him that the truck displayed an error code message on 

the dashboard related to the air conditioning. Defendant 

nevertheless assured plaintiff that the truck was DOT certified

and provided plaintiff with a document denoted "Vehicle History 

Record." The document contains a checklist of all the items 

inspected and certified as "OK." There is a blank space on the 

right corner of the document with the words "Inspector's Name 

(Print or Type)," which was left blank. Immediately below this 

blank box is another space that states: "This inspector meets 

the Qualification Requirements in Section 396.19." A box with 

the word "YES" was marked with an "X."

Based on the error code message in the truck's dashboard, 

plaintiff refused to take possession of the vehicle and asked 

defendant to refund him the $19,600. Plaintiff claims he 

contacted defendant several times thereafter demanding the 

refund of his money, to no avail. Defendant claims it contacted 

plaintiff several times to determine when he planned to pick up 

the truck, but did not get an answer. Defendant also claims it 

has incurred storage charges due to plaintiff's failure to take 

possession of the truck. 
5 A-0034-16T1

II

On September 23, 2015, plaintiff filed a pro se complaint 

against defendant in the Law Division. At this time, plaintiff 

resided in the Township of Darby, Pennsylvania.

2 On November 23, 

2015, defendant filed its answer alleging several affirmative 

defenses and a counterclaim to recover storage charges allegedly 

incurred in safekeeping the truck after it was sold to 

plaintiff. Defendant claims the truck was DOT compliant and 

seeks to recover the storage charges it had incurred as a result 

of plaintiff's alleged breach of the sales contract.

The initial discovery end date (DED) in this matter was 

April 21, 2016. Plaintiff served defendant with a notice to 

produce documents by certified mail on December 4, 2015, and 

December 23, 2015. Defendant served plaintiff with 

interrogatories and a notice to produce documents on January 4, 

2016. Plaintiff filed a motion to compel defendant to respond 

to the notice to produce on February 3, 2016. During this time, 

plaintiff still resided in the Township of Darby, Pennsylvania.

On February 10, 2016, defendant's attorney filed a motion 

to dismiss plaintiff's complaint for failure to provide answers 

to the interrogatories and for failure to provide responses to 

 

2 To protect his privacy, we have not described plaintiff’s 

specific address.
6 A-0034-16T1

the notice to produce. The motion documents did not specify 

whether the dismissal defendant sought as a sanction against 

plaintiff was with or without prejudice. In the certification 

submitted in support of the motion, defendant's attorney also 

failed to include a statement indicating that defendant, as the 

moving party, was not in default of any discovery obligations 

owed to plaintiff, as required by Rule 4:23-5(a)(1).

Although defendant's attorney included a statement that he 

had "orally conferred, or has made a good faith effort to orally 

confer with the opposing party to no avail," he did not 

"specifically describe[]" the type of "good faith" efforts he 

made, as required by Rule 1:6-2(c). Finally, defendant’s 

counsel's certification of mailing did not include a statement 

under oath that plaintiff was served with a copy of the motion. 

The only reference to plaintiff being served with this motion is 

found in defense counsel's transmittal letter addressed to the 

vicinage's "Civil Division Motion's Clerk." In this letter, 

counsel merely states: "By copy of this letter, I am forwarding 

a copy of this Notice of Motion to my adversaries." We infer 

from the incongruous reference to "adversaries" in the plural, 

despite plaintiff being the only adversary in the case, that 

this was a form letter.
7 A-0034-16T1

As this record makes clear, by the time defendant filed 

this motion, the Law Division had two conflicting discovery 

motions pending. On February 19, 2016, the Law Division judge 

granted plaintiff's motion to compel defendant to respond to the 

notice to produce documents. The judge found that "[d]espite 

[p]laintiff’s good faith effort to resolve the outstanding 

discovery, responses have not been received by [p]laintiff to 

date." The judge ordered defendant to respond to the notice to 

produce within fifteen days of the order. Pursuant to the 

method of calculation codified in Rule 1:3-1,3 defendant's 

documents were due on March 7, 2016. The order indicates that 

plaintiff's motion was unopposed. At the time the judge entered 

this order, there were seventy-one days left until the April 21, 

2016 DED.

 

3 Under Rule 1:3-1:

In computing any period of time fixed by 

rule or court order, the day of the act or 

event from which the designated period 

begins to run is not to be included. The 

last day of the period so computed is to be 

included, unless it is a Saturday, Sunday or 

legal holiday, in which event the period 

runs until the end of the next day which is 

neither a Saturday, Sunday nor legal 

holiday. In computing a period of time of 

less than 7 days, Saturday, Sunday and legal 

holidays shall be excluded.
8 A-0034-16T1

On March 18, 2016, the same judge granted defendant's 

motion to dismiss plaintiff's complaint for failure to provide 

answers to interrogatories. As was the case when plaintiff 

moved for discovery relief, the court's order indicates that 

defendant's motion was unopposed. In the brief filed in this 

appeal, defendant's attorney asserts that he personally 

telephoned plaintiff after the court dismissed the complaint 

without prejudice in an effort to secure plaintiff's voluntary 

compliance. However, factual assertions made by an appellate 

counsel that are not supported by a specific citation to the

record developed before the trial court and supported by a 

specific citation to the appendix violate the rules of appellate 

practice and will not be considered.4

The record before us contains a "Substitution of Counsel" 

signed by plaintiff and his attorney on March 9, 2016. 

Inexplicably, this notice was not filed with the Law Division 

until April 25, 2016, four days after the expiration of the 

April 21, 2016 DED. On June 2, 2016, defendant moved to dismiss 

 

4 See Rule 2:6-4(a) describing the contents of a respondent’s 

brief and its correlation to Rule 2:6-2(a)(5). See also Spinks 

v. Twp. of Clinton, 402 N.J. Super. 465, 474 (App. Div. 2008), 

certif. denied, 197 N.J. 476 (2009) (explaining that it is the 

responsibility of the parties to refer this court to specific 

parts of the record to support their argument.) "Lack of 

familiarity with appellate court procedures is no excuse." 

Miraph Enters., Inc. v. Bd. of Alco. Bev., Paterson, 150 N.J. 

Super. 504, 508 (App. Div. 1977).
9 A-0034-16T1

plaintiff's complaint with prejudice pursuant to Rule 4:23-

5(a)(2) for failure to provide discovery.

Presumably unaware of plaintiff's counsel's appearance in 

the case, defendant’s counsel's certification of mailing 

reflects that the notice of motion and supporting documentation 

were sent directly to plaintiff at his address in Darby, 

Pennsylvania. Defendant's attorney submitted a certification in 

support of the motion that included the following factual 

representations:

2. The time for the plaintiff to answer 

interrogatories and provide responses to the 

notice to produce propounded have expired 

and the plaintiff has not provided any of 

the information requested. . .

3. Accordingly, on February 10, 2016, the 

defendant filed a Motion to dismiss the 

complaint of the plaintiff, Aziz M. Thabo 

for failure to answer interrogatories and 

answer Notice to Produce returnable on March 

18, 2016. Said motion was granted on March 

18, 2016[.]

4. Pursuant to [Rule] 4:23-5(a)(2), the 

defendant now moves for dismissal of 

plaintiff, Aziz Thabo’s complaint with 

prejudice as the sixty (60) day grace period 

to provide the overdue discovery has passed 

and plaintiff has still failed to supply the 

overdue discovery.

In a letter dated June 6, 2016, plaintiff's attorney sent 

defendant's attorney: (1) a copy of the substitution of counsel 

filed with the court; (2) plaintiff's answers to defendant's 
10 A-0034-16T1

interrogatories and notice to produce; and (3) plaintiff's 

interrogatories and a new notice to produce. In an order 

entered on July 8, 2016 marked "unopposed," the motion judge 

dismissed plaintiff's complaint with prejudice ostensibly 

pursuant to Rule 4:23-5(a)(2) "for failure to provide answers to 

interrogatories and responses to a notice to produce[.]" 

In a letter dated July 18, 2016, defendant's attorney sent 

plaintiff's attorney a copy of the trial court's order. 

Defendant's attorney stated in the transmittal letter that the 

order was "self-explanatory" and advised plaintiff's counsel to 

be "guided accordingly." In the brief submitted in this appeal, 

defendant's counsel does not offer any explanation for not 

withdrawing the motion after he received the outstanding 

discovery from plaintiff's attorney more than a month earlier.

On July 18, 2016, the same day he received defendant's 

counsel's letter transmitting the court's order, plaintiff's 

counsel filed a motion to restore the case to the active trial

calendar and permit plaintiff to file an answer to defendant's 

counterclaim and "to continue discovery."

5 Plaintiff submitted a 

certification in support of the motion in which he averred that 

since he filed his complaint pro se, he had moved to Folcroft, 

 

5 Because the DED was April 21, 2016, we presume plaintiff’s 

counsel was also seeking an extension of the initial discovery 

period. 
11 A-0034-16T1

Pennsylvania. Consequently, he did not receive the notice of 

defendant's February 10, 2016 motion to dismiss his complaint 

without prejudice.

Plaintiff emphasized: "If I had known of the defendant's 

motion to dismiss while he was in violation of the order of 

February 19, 2016, I certainly would have appeared." Plaintiff 

also noted that defendant's attorney's certification stating 

that plaintiff "had failed to respond to outstanding discovery" 

was false because his attorney "had sent out all responses" on 

June 6, 2016. Plaintiff pointed out that the court had found 

defendant delinquent in its discovery obligation to plaintiff, 

before defendant moved to dismiss plaintiff's complaint. 

Despite these procedural irregularities, a different judge 

denied plaintiff's motion without affording his attorney an 

opportunity to present oral argument. In an order dated August 

8, 2016, the judge wrote: "The applicant[ion] is denied. [The 

previous] Judge . . . dismissed this matter with prejudice by 

order July 8, 2016."

III

"[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). The trial court is deemed to have 
12 A-0034-16T1

abused its discretion when the "'decision [was] made without a 

rational explanation, inexplicably departed from established 

policies, or rested on an impermissible basis.'" United States 

v. Scurry, 193 N.J. 492, 504 (2008) (quoting Flagg v. Essex 

County Prosecutor, 171 N.J. 561, 571 (2002)). A trial court's 

exercise of discretion is "entitled to respectful review under 

an abuse of discretion standard[.]" Serenity Contracting v. 

Fort Lee, 306 N.J. Super. 151, 157 (App. Div. 1997).

Here, the flagrant disregard of the procedural requirements 

of Rule 4:23-5 satisfies this standard of review. The decisions 

made by the Law Division judges that resulted in the dismissal 

of plaintiff's complaint with prejudice were made without a 

rational explanation, inexplicably departed from the rule's 

procedural requirements and constitute clear abuses of their 

discretionary authority. Flagg, supra, 171 N.J. at 571. The 

original motion judge who dismissed plaintiff's complaint 

without prejudice abused her discretion because at the time she 

entered this order, that same judge had previously found 

defendant was delinquent in its discovery obligation to 

plaintiff.

However, the motion judge is not exclusively responsible 

for this oversight. Defendant's counsel violated the 

requirements of Rule 4:23-5(a)(1) when he moved to dismiss 
13 A-0034-16T1

plaintiff's complaint without disclosing to the court that his 

client was in default of its discovery obligations. This 

material omission by defendant's counsel indisputably 

contributed to the judge's error and may have constituted a 

violation of an attorney's "obligation of candor to each other 

and to the judicial system, which includes a duty of disclosure 

to the court and opposing counsel." McKenney v. Jersey City 

Med. Ctr., 167 N.J. 359, 371 (2001). See also RPC 3.3(a)(5) 

(prohibiting an attorney from knowingly failing "to disclose to 

the tribunal a material fact knowing that the omission is 

reasonably certain to mislead the tribunal[.]").6

Independent of defense counsel's conduct, the record shows 

the motion judge failed to adhere to the procedural safeguards 

codified 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. 

 

6 However, it is beyond our role and authority as an intermediate 

appellate court to make any determination concerning whether

defendant’s counsel committed an ethical violation. Our State 

Constitution expressly provides the Supreme Court with the 

“exclusive jurisdiction over the admission to the practice of 

law and the discipline of persons admitted." N.J. Const. art. 

VI, § 2, ¶ 3. Robertelli v. New Jersey Office of Atty. Ethics, 

224 N.J. 470, 476 (2016). The Court "has both the authority and 

obligation to oversee the discipline of attorneys." R.M. v. 

Supreme Court of New Jersey, 185 N.J. 208, 213 (2005); see also

State v. Rush, 46 N.J. 399, 411 (1966).
14 A-0034-16T1

L.L.C., 423 N.J. Super. 528, 532 (App. Div. 2012). Rule 4:23-5 

codified 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 AME Dev. Corp. v. City of 

Jersey City, 403 N.J. Super. 480, 484 (App. Div. 2008). 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 

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)(emphasis added).]
15 A-0034-16T1

Ordinarily, self-represented litigants are not entitled to 

greater rights than litigants who are represented by counsel.

Ridge at Back Brook, L.L.C. v. Klenert, 437 N.J. Super. 90, 99 

(App. Div. 2014). However, Rule 4:23-5 expressly requires the 

party seeking relief from the court to ensure that pro se 

litigants receive proper notice and be served with the order 

imposing the sanction of dismissal or suppression without 

prejudice available under step one. When a party is appearing 

pro se, it is the responsibility of the attorney representing 

the moving party to ensure that the pro se litigant has been 

provided with service of the order and proper notice.

After complying with the procedures set out in step one of 

the rule, a 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 

whereabouts have not been able to be 
16 A-0034-16T1

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)(emphasis added).]

When the aggrieved party files a motion to dismiss with 

prejudice, the delinquent party's attorney has two non-waivable 

obligations: (1) file an affidavit with the motion judge 

indicating that the client has been notified of the pending 

motion's legal consequences in accordance with the form 

prescribed; and (2) personally appear before the motion judge on 

the return date of the motion. If the delinquent party is pro 

se, the rule imposes an additional obligation on the attorney 

representing the party seeking relief. The attorney for the 

moving party is required to attach an affidavit of service to 

the notice of motion and proposed order, or file an affidavit 

explaining why service was not made.
17 A-0034-16T1

Finally, Rule 4:23-5(a)(3) provides that:

If the attorney for the delinquent party 

fails to timely serve the client with the 

original order of dismissal or suppression 

without prejudice, fails to file and serve 

the affidavit and the notifications required 

by this rule, or fails to appear on the 

return date of the motion to dismiss or 

suppress with prejudice, the court shall, 

unless exceptional circumstances are 

demonstrated, proceed by order to show cause 

or take such other appropriate action as may 

be necessary to obtain compliance with the 

requirements of this rule.

[Emphasis added.]

These procedural safeguards are intended to "ensure that 

the defaulting litigant is aware that the order of dismissal or 

suppression without prejudice has been entered and of its 

consequences." Pressler & Verniero, Current N.J. Court Rules, 

comment 1.2 on R. 4:23-5 (2017). The best way to foster public 

confidence in our civil courts is to decide cases on their 

merits. Discovery rules are intended to create a level playing 

field for all litigants and promote the resolution of civil 

dispute on the merits. Judges are entrusted to ensure that these 

rules are properly and fairly enforced. 

Here, the system failed because both the motion judge and 

the attorney representing the moving party failed to follow the 

strict procedural requirements of Rule 4:23-5. The order of the 

Law Division dated July 8, 2016 dismissing plaintiff's complaint 
18 A-0034-16T1

with prejudice is vacated. Plaintiff's complaint is reinstated 

and the case is remanded to the Law Division for the judge 

assigned to this case to conduct a case management conference 

with the attorneys to determine the status of discovery. The 

judge shall thereafter enter a case management order setting a 

new discovery end date, a schedule for filing dispositive 

motions, and address such other matters as the judge deems 

appropriate, including fixing a trial date. 

Reversed and remanded. We do not retain jurisdiction.