NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1957-24
AMERICAN BUILDERS & CONTRACTORS SUPPLY CO., INC., d/b/a ABC SUPPLY CO. INC.,
Plaintiff-Respondent,
v.
THE GALEANO COMPANY LLC and JOHN GALEANO, a/k/a JOHN E. ZARATE, as Personal Guarantor,
Defendants-Appellants. ______________________________
Submitted December 17, 2025 – Decided January 14, 2026
Before Judges Gummer and Vanek.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. DC-003545- 23.
Freeman & Patel, LLC, attorneys for appellants (Jarred S. Freeman, on the briefs).
Heitner & Breitstein, attorneys for respondent (Yelena C. Tsyrlin, on the brief). PER CURIAM
Defendants The Galeano Company LLC (the LLC) and John Galeano
a/k/a John E. Zarate (Galeano) appeal from a February 7, 2025 Special Civil
Part order suppressing Galeano's answer with prejudice. Having reviewed the
record in light of the parties' arguments and applicable law, we reverse and
remand for further proceedings.
I.
We recount the salient facts from the record. In April 2023, plaintiff
filed a complaint against defendants seeking judgment for an outstanding
amount due for goods sold and delivered to the LLC. Galeano had personally
guaranteed the debt. Default judgment for $11,383.33 was entered against
both defendants. The default judgment against Galeano was subsequently
vacated based on lack of service of process.
Galeano, then self-represented, filed an answer in which he asserted
"I/We did not order the goods or services" and "I am a victim of identity theft
or mistaken identity." Thereafter, plaintiff served discovery on Galeano. On
February 23, 2024, the judge entered an order suppressing Galeano's answer
without prejudice for failure to serve discovery responses.
The judge denied two subsequent motions to vacate the February 23,
2024 order. On plaintiff's unopposed motion, the court entered a September 6,
A-1957-24 2 2024 order suppressing Galeano's answer with prejudice for failure to respond
to outstanding discovery. On October 18, 2024, the judge re-entered default
judgment against Galeano.
Defendants then moved through counsel to vacate the default judgments.
In a December 13, 2024 order, the judge granted defendants' motion as to
Galeano only and vacated the September 6 order striking his answer with
prejudice. The judge ordered Galeano to respond to the discovery demands
and file the appropriate motion to reinstate; the order did not specify any
deadlines.
On January 15, 2025, plaintiff moved to suppress Galeano's answer with
prejudice. One week later, defendants 1 served interrogatory answers, but they
did not respond to plaintiff's document demands. Plaintiff argued the untimely
interrogatory answers were deficient and Galeano had failed to file a motion to
reinstate, as ordered.
On February 7, 2025, the judge issued an oral decision at the conclusion
of arguments. The judge found defendants had served some discovery
responses late and had not responded to other discovery requests. The judge
found plaintiff's counsel had not made a good faith attempt to resolve the
1 Although the discovery responses were served by "defendants," the default judgment had only been vacated as to Galeano.
A-1957-24 3 discovery dispute as required under Rule 1:6-2 but relaxed that requirement
because Galeano was court-ordered to provide the outstanding discovery. The
judge did not address whether the required Appendix II-B2 notice had been
filed or served pursuant to Rule 4:23-5(a)(2).
On appeal, defendants argue the trial court erred in suppressing
Galeano's answer with prejudice for failure to provide discovery because
plaintiff prematurely had filed the with-prejudice suppression motion in
contravention of Rules 4:23-5(a)(2) and 6:4-6(c). Defendants also contend
that even if the responses to plaintiff's interrogatories were late, the trial court
failed to consider whether those responses substantively complied with the
demands.
II.
Discovery sanctions are governed by Rule 4:23-5 as applied to the
Special Civil Part under Rule 6:4-6. The purpose of Rule 4:23-5 is to elicit
2 Rule 4:23-5(a)(2) provides the following notice requirement:
The attorney for the delinquent party shall, not later than [seven] 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. . . .
A-1957-24 4 outstanding discovery "rather than to punish the offender." Zimmerman v.
United Servs. Auto. Ass'n, 260 N.J. Super. 368, 374 (App. Div. 1992). The
rules also exist "to serve the interests of promoting compliance with discovery
obligations, providing relief to the party whose discovery requests remain
unsatisfied, and implementing the court's need to manage and expedite
litigation." A & M Farm & Garden Ctr. v. Am. Sprinkler Mech. L.L.C., 423
N.J. Super. 528, 537 (App. Div. 2012).
"Judges are entrusted to ensure that [discovery] rules are properly and
fairly enforced," Thabo v. Z Transp., 452 N.J. Super. 359, 371 (App. Div.
2017), and "to take action to obtain compliance with the requirements of
[those] rule[s]." A & M Farm, 423 N.J. Super. at 532. In the context of
discovery violations, dismissal of a claim or suppression of a party's pleadings
for failure to comply with discovery is the "last and least favorable option ." Il
Grande v. DiBenedetto, 366 N.J. Super. 597, 624 (App. Div. 2004). As we
have explained, "[t]he best way to foster the public confidence in our civil
courts is to decide cases on their merits." Salazar v. MKGC + Design, 458
N.J. Super. 551, 560 (App. Div. 2019) (quoting Thabo, 452 N.J. Super. at
371).
To succeed on a motion to suppress with prejudice for failure to provide
discovery under Rule 4:23-5, the moving party must strictly comply with the
A-1957-24 5 "two-step process" demanded by the rule. Sullivan v. Coverings &
Installation, Inc., 403 N.J. Super. 86, 93 (App. Div. 2008). Step one, under
Rule 4:23-5(a)(1), requires "the focus of the motion judge . . . [to] be on
whether good cause is present for relief [rather] than a dismissal without
prejudice for failure to answer." Adedoyin v. Arc of Morris Cnty. Chapter,
Inc., 325 N.J. Super. 173, 181 (App. Div. 1999). Step two, under Rule 4:23-
5(a)(2), allows a motion for suppression with prejudice to be filed no sooner
than sixty days from the date of the without-prejudice suppression order if the
discovery has not been provided and the delinquent party has not moved to
vacate the prior order unless exceptional circumstances are demonstrated.
Rule 6:4-6(c) provides that for Special Civil Part actions "[t]he [sixty]-day
period prescribed by [Rule] 4:23-5(a)(2) is reduced to [forty-five] days."
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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.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1957-24
AMERICAN BUILDERS & CONTRACTORS SUPPLY CO., INC., d/b/a ABC SUPPLY CO. INC.,
Plaintiff-Respondent,
v.
THE GALEANO COMPANY LLC and JOHN GALEANO, a/k/a JOHN E. ZARATE, as Personal Guarantor,
Defendants-Appellants. ______________________________
Submitted December 17, 2025 – Decided January 14, 2026
Before Judges Gummer and Vanek.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. DC-003545- 23.
Freeman & Patel, LLC, attorneys for appellants (Jarred S. Freeman, on the briefs).
Heitner & Breitstein, attorneys for respondent (Yelena C. Tsyrlin, on the brief). PER CURIAM
Defendants The Galeano Company LLC (the LLC) and John Galeano
a/k/a John E. Zarate (Galeano) appeal from a February 7, 2025 Special Civil
Part order suppressing Galeano's answer with prejudice. Having reviewed the
record in light of the parties' arguments and applicable law, we reverse and
remand for further proceedings.
I.
We recount the salient facts from the record. In April 2023, plaintiff
filed a complaint against defendants seeking judgment for an outstanding
amount due for goods sold and delivered to the LLC. Galeano had personally
guaranteed the debt. Default judgment for $11,383.33 was entered against
both defendants. The default judgment against Galeano was subsequently
vacated based on lack of service of process.
Galeano, then self-represented, filed an answer in which he asserted
"I/We did not order the goods or services" and "I am a victim of identity theft
or mistaken identity." Thereafter, plaintiff served discovery on Galeano. On
February 23, 2024, the judge entered an order suppressing Galeano's answer
without prejudice for failure to serve discovery responses.
The judge denied two subsequent motions to vacate the February 23,
2024 order. On plaintiff's unopposed motion, the court entered a September 6,
A-1957-24 2 2024 order suppressing Galeano's answer with prejudice for failure to respond
to outstanding discovery. On October 18, 2024, the judge re-entered default
judgment against Galeano.
Defendants then moved through counsel to vacate the default judgments.
In a December 13, 2024 order, the judge granted defendants' motion as to
Galeano only and vacated the September 6 order striking his answer with
prejudice. The judge ordered Galeano to respond to the discovery demands
and file the appropriate motion to reinstate; the order did not specify any
deadlines.
On January 15, 2025, plaintiff moved to suppress Galeano's answer with
prejudice. One week later, defendants 1 served interrogatory answers, but they
did not respond to plaintiff's document demands. Plaintiff argued the untimely
interrogatory answers were deficient and Galeano had failed to file a motion to
reinstate, as ordered.
On February 7, 2025, the judge issued an oral decision at the conclusion
of arguments. The judge found defendants had served some discovery
responses late and had not responded to other discovery requests. The judge
found plaintiff's counsel had not made a good faith attempt to resolve the
1 Although the discovery responses were served by "defendants," the default judgment had only been vacated as to Galeano.
A-1957-24 3 discovery dispute as required under Rule 1:6-2 but relaxed that requirement
because Galeano was court-ordered to provide the outstanding discovery. The
judge did not address whether the required Appendix II-B2 notice had been
filed or served pursuant to Rule 4:23-5(a)(2).
On appeal, defendants argue the trial court erred in suppressing
Galeano's answer with prejudice for failure to provide discovery because
plaintiff prematurely had filed the with-prejudice suppression motion in
contravention of Rules 4:23-5(a)(2) and 6:4-6(c). Defendants also contend
that even if the responses to plaintiff's interrogatories were late, the trial court
failed to consider whether those responses substantively complied with the
demands.
II.
Discovery sanctions are governed by Rule 4:23-5 as applied to the
Special Civil Part under Rule 6:4-6. The purpose of Rule 4:23-5 is to elicit
2 Rule 4:23-5(a)(2) provides the following notice requirement:
The attorney for the delinquent party shall, not later than [seven] 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. . . .
A-1957-24 4 outstanding discovery "rather than to punish the offender." Zimmerman v.
United Servs. Auto. Ass'n, 260 N.J. Super. 368, 374 (App. Div. 1992). The
rules also exist "to serve the interests of promoting compliance with discovery
obligations, providing relief to the party whose discovery requests remain
unsatisfied, and implementing the court's need to manage and expedite
litigation." A & M Farm & Garden Ctr. v. Am. Sprinkler Mech. L.L.C., 423
N.J. Super. 528, 537 (App. Div. 2012).
"Judges are entrusted to ensure that [discovery] rules are properly and
fairly enforced," Thabo v. Z Transp., 452 N.J. Super. 359, 371 (App. Div.
2017), and "to take action to obtain compliance with the requirements of
[those] rule[s]." A & M Farm, 423 N.J. Super. at 532. In the context of
discovery violations, dismissal of a claim or suppression of a party's pleadings
for failure to comply with discovery is the "last and least favorable option ." Il
Grande v. DiBenedetto, 366 N.J. Super. 597, 624 (App. Div. 2004). As we
have explained, "[t]he best way to foster the public confidence in our civil
courts is to decide cases on their merits." Salazar v. MKGC + Design, 458
N.J. Super. 551, 560 (App. Div. 2019) (quoting Thabo, 452 N.J. Super. at
371).
To succeed on a motion to suppress with prejudice for failure to provide
discovery under Rule 4:23-5, the moving party must strictly comply with the
A-1957-24 5 "two-step process" demanded by the rule. Sullivan v. Coverings &
Installation, Inc., 403 N.J. Super. 86, 93 (App. Div. 2008). Step one, under
Rule 4:23-5(a)(1), requires "the focus of the motion judge . . . [to] be on
whether good cause is present for relief [rather] than a dismissal without
prejudice for failure to answer." Adedoyin v. Arc of Morris Cnty. Chapter,
Inc., 325 N.J. Super. 173, 181 (App. Div. 1999). Step two, under Rule 4:23-
5(a)(2), allows a motion for suppression with prejudice to be filed no sooner
than sixty days from the date of the without-prejudice suppression order if the
discovery has not been provided and the delinquent party has not moved to
vacate the prior order unless exceptional circumstances are demonstrated.
Rule 6:4-6(c) provides that for Special Civil Part actions "[t]he [sixty]-day
period prescribed by [Rule] 4:23-5(a)(2) is reduced to [forty-five] days."
Our review of the dismissal of a complaint with prejudice for discovery
misconduct is for abuse of discretion. Thabo, 452 N.J. Super. at 368 (App.
Div. 2017); see also DiFiore v. Pezic, 254 N.J. 212, 228 (2023) (stating a trial
court's decision on a discovery matter is "entitled to substantial deference" and
"will not be overturned absent an abuse of discretion"). An abuse of discretion
arises when a decision is "made without a rational explanation, inexplicably
departed from the established policies, or rests on an impermissible basis."
Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting
A-1957-24 6 Achacoso–Sanchez v. Immigr. and Naturalization Serv., 779 F.2d 1260, 1265
(7th Cir.1985)).
III.
We conclude that the Special Civil court mistakenly exercised its
discretion when it granted plaintiff's premature motion to suppress Galeano's
answer with prejudice. Accordingly, we reverse and remand.
Under Rule 6:4-6(c), plaintiff was required to wait forty-five days from
the entry of the December 13, 2024 order—January 28, 2025—before refiling
its motion to suppress Galeano's answer with prejudice for non-compliance
with his discovery obligations. Because plaintiff prematurely filed its motion
on January 15, 2025, we conclude the entry of the order suppressing Galeano's
answer with prejudice was a mistaken exercise of discretion.
Our decision furthers the primary goal of Rule 4:23-5—to resolve
disputes on the merits, rather than by default. St. James AME Dev. Corp. v.
City of Jersey City, 403 N.J. Super. 480, 484 (App. Div. 2008). Because of
the finality of a with-prejudice discovery sanction, compliance with the rules is
paramount.
On remand, the judge shall enter an order requiring Galeano to serve
fully compliant discovery responses and to move to vacate the with-prejudice
suppression order by specific dates that are consistent with the Rules of Court.
A-1957-24 7 Should another with-prejudice suppression motion be necessary, relief should
be predicated on full compliance with all procedural safeguards embodied in
Rules 4:23-5 and 6:4-6. Because we reverse the order based on defendant's
first argument, we do not reach his substantial-compliance argument.
Reversed and remanded. We do not retain jurisdiction.
A-1957-24 8