SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1517-19

A.D., an infant under the age 

of 18 years, by her mother and 

natural guardian, ALEXA 

RIVERA, D.D., an infant under 

the age of 14 years, by his 

mother ALEXA RIVERA, and

ALEXA RIVERA, individually,

Plaintiffs-Appellants,

v.

DONALD R. AYUSA and

CAMPBELL'S AUTO EXPRESS,

Defendants-Respondents.

_____________________________

Submitted January 13, 2021 – Decided June 17, 2021

Before Judges Accurso and Enright.

On appeal from the Superior Court of New Jersey, Law 

Division, Camden County, Docket No. L-4688-18.

Sacco & Fillas, LLP, attorneys for appellants (James R. 

Baez, on the briefs).

NOT FOR PUBLICATION WITHOUT THE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.
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Margolis Edelstein, attorneys for respondents (Robert 

M. Kaplan and Lawrence J. Bunis, on the brief).

PER CURIAM

Plaintiff Alexa Rivera, for herself and on behalf of her children A.D. and 

D.D., appeals from an order dismissing her complaint against defendant Donald 

R. Ayusa and Campbell's Auto Express with prejudice pursuant to Rule 4:23-

5(a)(2) for failure to provide discovery. Because we conclude the trial court 

mistakenly exercised its discretion in dismissing the complaint with prejudice, 

we reverse.

This case arose out of an accident on the Turnpike in 2018 when plaintiff's

disabled car was struck by a Mack truck driven by defendant Ayusa and owned 

by defendant Campbell's. Plaintiff's two children were in the back seat of her 

car. All suffered injuries. Plaintiff's complaint was dismissed without prejudice 

in August 2019 under Rule 4:23-5(a)(1) when she failed to provide discovery.

When no motion to restore was filed within sixty days, defendants moved 

for dismissal with prejudice under Rule 4:23-5(a)(2). Plaintiff, represented by 

counsel, opposed the motion and filed a cross-motion to reinstate the complaint 

with responses to the overdue discovery. Defendants opposed the motion 

claiming the responses provided were "woefully inadequate" and plaintiff had 
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yet to respond to the supplemental interrogatories.

1

 Without conducting oral 

argument, resolving the dispute over the adequacy of the answers and whether 

answers to the supplemental interrogatories had been provided, or ensuring that 

plaintiff's counsel had served the original order of dismissal without prejudice 

on plaintiff, along with the notices prescribed by Appendix II-A and -B of the 

Rules, the court dismissed the case with prejudice on the return date outside the 

presence of counsel.2

We note at the outset that we do not approve of or condone the desultory 

pace at which plaintiff's counsel prosecuted this matter and responded to 

legitimate discovery demands. Nevertheless, "[i]t is well-established that the 

1

In his certification in support of the cross-motion to reinstate, plaintiff's 

counsel averred that responses to the supplemental interrogatories had been 

provided, putting the matter in dispute. In her reply brief on appeal, plaintiff 

argues there was no proof the supplemental interrogatories were ever served. 

The resolution of the parties' dispute over the supplemental interrogatories is not 

essential here because the failure to ensure the procedural safeguards of Rule

4:23-5 were complied with before dismissing the complaint with prejudice 

requires reversal regardless of which side is correct.

2

 Although the order dismissing the case with prejudice states the court's reasons 

were set forth on the record, the parties failed to provide us the transcript. We 

listened to a recording of that session, which ran less than five minutes. The 

court based its ruling on plaintiff's failure to serve answers to the supplemental 

interrogatories, apparently overlooking the dispute on that point. The court did 

not address plaintiff's counsel's compliance with the procedural requirements of 

Rule 4:23-5.
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main objective of the two-tier sanction process in Rule 4:23-5 is to compel 

discovery responses rather than to dismiss the case." A&M Farm & Garden Ctr. 

v. Am. Sprinkler Mech., L.L.C., 423 N.J. Super. 528, 534 (App. Div. 2012). 

When the parties dispute the adequacy of the answers, the court is to identify 

the questions requiring more specific answers, Adedoyin v. Arc of Morris Cty. 

Chapter, Inc., 325 N.J. Super. 173, 182 (App. Div. 1999), adjourning the motion 

to compel compliance. St. James AME Dev. Corp. v. City of Jersey City, 403 

N.J. Super. 480, 487 (App. Div. 2008).

Even more important, both the Rule and the case law interpreting it make 

clear the motion to dismiss with prejudice may not be granted without the judge 

ensuring that the procedural safeguards built into Rule 4:23-5(a) have been

"scrupulously followed and technically complied with." Thabo v. Z Transp., 

452 N.J. Super. 359, 369 (App. Div. 2017). The court must ensure that counsel 

for the delinquent party has filed the affidavit required by Rule 4:23-5(a)(2)

averring that counsel served the client with the order of dismissal without 

prejudice by regular and certified mail, return receipt requested, "accompanied 

by a notice in the form prescribed by Appendix II-A" of the Rules, "specifically 

explaining the consequences of failure to comply with the discovery obligation 

and to file and serve a timely motion to restore" as required by Rule 4:23-5(a)(1)
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and that the client had been "served with an additional notification, in the form 

prescribed by Appendix II-B, of the pendency of the motion to dismiss . . . with 

prejudice." R. 4:23-5(a)(3). 

Appearance by the attorney for the delinquent party on the return date is 

mandatory. R. 4:23-5(a)(2). The Rule further 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.

[R. 4:23-5(a)(3).]

Judging from the record before us, none of the Rule's procedural 

safeguards appears to have been complied with.3 Accordingly, we conclude the 

trial court's entry of the order dismissing plaintiff's complaint with prejudice 

without reviewing the discovery plaintiff provided in response to defendants'

3

 We reject plaintiff's argument that the motion to dismiss with prejudice should 

have been denied based on defense counsel's failure to provide proof he served

her counsel with the order to dismiss without prejudice as required by the terms 

of the order and Rule 1:5-1(a). Plaintiff's argument relies on an outdated version 

of Rule 1:5-1 prior to its amendment in 2018 to provide for electronic service 

pursuant to Rule 1:32-2A.
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demands, resolving the dispute over the adequacy of the answers and whether 

answers to supplemental interrogatories had been provided, and ensuring 

plaintiff's counsel had served plaintiff with the original dismissal order and the 

required notices under Rule 4:23-5(a), constituted a mistaken exercise of its 

discretion. St. James AME Dev. Corp., 403 N.J. Super. at 484 (holding that 

"[w]hether to grant or deny a motion to reinstate a complaint lies within the 

sound discretion of the trial court."). We thus reverse the dismissal with 

prejudice and remand for further proceedings not inconsistent with this opinion. 

We do not retain jurisdiction.

Reversed and remanded.