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By: Thomas Paschos

Thomas Paschos & Associates, P.C.

Haddonfield, NJ

In Choi v. River Terrace Gardens Associate, 2010 WL 26495 (N.J.Super. January 6, 2010), Plaintiffs appealed from an order dismissing their complaint with prejudice pursuant to Rule 4:23-5(a)(2) and denying their motion to reinstate the complaint. Among the discovery deficiencies alleged was plaintiffs' failure to provide any expert reports, a failure that was not cured prior to the date the motion to dismiss with prejudice was argued.Plaintiffs claims arose from their contention that the negligence of defendant, their landlord, resulted in a mold condition that caused them to suffer severe and permanent injury. Their complaint, filed on November 26, 2007, alleged negligence; an unconscionable commercial practice in violation of the Consumer Fraud Act; a breach of the warranty of habitability; and that the landlord failed to return the security deposit. The case was assigned to Track 2, with an original discovery end date of December 2, 2008.

Defendant promptly served its first discovery demands: a demand for answers to Uniform Interrogatories Form A served with its answer on February 6, 2008; a similar demand with its amended answer on February 15, 2008; and a first demand for production of documents on February 14, 2008.

Plaintiffs did not provide answers to interrogatories by their March 7, 2008 due date. Defendant sent letters on March 11 and April 7, 2008, advising plaintiffs' counsel of their failure and asking that answers be provided. Receiving no response, defendant sent a third letter on April 23, 2008, advising that unless answers were received by May 1, 2008, a motion would be filed without further effort to resolve the discovery issue.

By letter dated July 10, 2008, defense counsel advised plaintiffs' counsel of deficiencies in the answers including the request for expert discovery. Plaintiffs did not provide the requested expert discovery and were repeatedly informed of this deficiency throughout the litigation and failed to cure it. During the period from May 2008 through February 2009, defendant filed two motions to compel discovery, one motion to dismiss without prejudice and, finally, a motion to dismiss with prejudice, all of which were based in part on the failure to provide expert reports. Yet, this failure persisted despite a court order directing production of outstanding discovery that included expert reports by November 15, 2008, the expiration of the discovery period on January 31, 2009, and even on March 20, 2009, the date that the motions were argued. On March 20, 2009, the trial court granted the motion to dismiss the complaint with prejudice and denied the motion to reinstate the complaint.

On appeal, plaintiffs argue that the trial court was precluded from dismissing the complaint with prejudice pursuant to Rule 4:23-5(a)(2) because they provided fully responsive answers to interrogatories before the return date for the motion. To support this argument, plaintiffs cited St. James AME Dev. Corp. v. City of Jersey City, 403 N.J.Super. 480, 485 (App.Div.2008) which held that the production of fully responsive answers by the time of the return date, even without exceptional circumstances, precludes dismissing the complaint with prejudice. The court found plaintiffs reliance on St. James misplaced. The court provided:

Although plaintiffs have attempted to characterize the issue here as a bona fide dispute over the sufficiency of the answers provided, the fact remains that plaintiffs never provided any expert reports to defendant. As a result, their contention that they provided fully responsive answers by the return date is simply false and we need not consider the sufficiency of plaintiffs' other answers to interrogatories.

The court found that plaintiffs failure to provide an expert report could not be minimized as a mere dispute over the sufficiency of interrogatory responses because even if there had been no order compelling plaintiffs to provide this information by November 15, 2008, they were required to provide expert reports before the expiration of the discovery period. Plaintiffs' failure to provide expert reports thwarted defendant's ability to complete discovery by deposing plaintiffs' experts and obtaining defense experts to counter their claims.

Because a motion to vacate the dismissal requires that outstanding discovery has been fully and responsively provided, R. 4:23-5(a)(1), plaintiffs' failure to provide expert reports precluded the granting of their motion to restore the complaint. Therefore, the court held that the motion to dismiss the complaint with prejudice was properly granted.

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