Frank Castella v. Gerald J. Lepis, Esq.

• Court: New Jersey Superior Court Appellate Division
• Decided: October 28, 2025
• Docket: A-3817-23
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3817-23

FRANK CASTELLA and CAROLINE RUBANO CASTELLA,

Plaintiffs-Appellants,

v.

GERALD J. LEPIS, ESQ., THE LAW OFFICE OF GERALD J. LEPIS, and HUDSON REALTY ABSTRACT COMPANY, INC.,

Defendants-Respondents. ____________________________

Argued October 1, 2025 – Decided October 28, 2025

Before Judges Currier and Berdote Byrne.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1554-22.

Kenneth S. Thyne argued the cause for appellants (Simon Law Group, LLC, attorneys; Kenneth S. Thyne, of counsel and on the briefs). John L. Slimm argued the cause for respondents (Marshall Dennehey, PC, attorneys; John L. Slimm and Jeremy J. Zacharias, on the brief).

PER CURIAM

Plaintiffs Frank Castella and Caroline Rubano Castella appeal from an

order dismissing their legal malpractice complaint with prejudice. The

underlying dispute involved defendants' alleged legal malpractice during

plaintiffs' 1995 purchase of commercial property in Jersey City. The trial court

first dismissed the complaint without prejudice for plaintiffs' failure to provide

complete discovery responses and later entered dismissal with prejudice after

plaintiffs did not cure the deficiencies within sixty days.

We affirm the trial court's dismissal with prejudice. The record reflects

plaintiffs had numerous opportunities to remedy their discovery deficiencies,

with defendants repeatedly alerting them to specific shortcomings and the court

granting multiple adjournments. Despite these opportunities, plaintiffs failed to

provide the required discovery. Accordingly, the trial court acted within its

discretion, and this is the rare case where dismissal of the complaint with

prejudice for failure to provide discovery is appropriate.

A-3817-23 2 I.

As the procedural history is germane to this appeal, we recount it in detail.

In November 1995, plaintiffs purchased commercial property for $80,000 with

defendant Lepis serving as their legal counsel for the transaction. Title was

taken in plaintiffs' personal names rather than in a business entity. Plaintiffs

renovated the property and initially operated a chiropractic practice at the

location before subsequently leasing it to a daycare center tenant. In May 2016,

the New Jersey Department of Environmental Protection (NJDEP) conducted a

vapor intrusion study, collecting sub-slab and indoor air samples. It found

tetrachloroethene (PCE) at concentrations exceeding applicable residential

screening levels. As a result of the findings, plaintiffs were classified by NJDEP

as persons responsible for conducting remediation under the Site Remediation

Reform Act and Spill Compensation and Control Act.

NJDEP filed a first priority lien against the property, seeking to satisfy its

cleanup and removal costs. Plaintiffs submitted a claim to the New Jersey Spill

Compensation Fund, seeking, among other things, compensation for alleged

property value diminution. The Environmental Claims Administration issued a

"Notice of Intent to Deny," referencing plaintiffs' failure to conduct due

A-3817-23 3 diligence before purchasing and stating plaintiffs were "strictly liable, without

regard to fault, for all cleanup and removal costs."

In May 2022, plaintiffs filed their complaint against defendants alleging

claims for legal malpractice, breach of fiduciary duty, negligent

misrepresentation, and breach of contract, all arising from defendants' handling

of the 1995 real estate transaction. Plaintiffs asserted, among other things, if

they had been adequately counseled about the former dry-cleaning use of the

property, they would have taken title through a corporate entity, obtained an

environmental assessment prior to purchase, or declined to proceed with the

transaction.

Defendants served interrogatories and document requests on July 1, 2022.

On June 28, 2023, defendants sent a written request for plaintiffs to submit

answers to interrogatories and damages calculations within the next seven days.

A follow-up demand was sent on July 18, 2023, noting the need for the responses

in order to proceed with depositions, and reiterating the request for damages

calculations. On July 24, 2023, defendants requested, and plaintiffs consented

A-3817-23 4 to, a sixty-day extension of the initial discovery period, moving the discovery

end date from September 24, 2023 to November 24, 2023. 1

On July 26, 2023, defendants again requested answers to interrogatories

and documents within seven days to avoid their filing of a motion to compel

discovery. On September 6, 2023, after plaintiffs had not responded, defendants

filed a motion to dismiss plaintiffs' complaint without prejudice for failure to

provide discovery pursuant to Rule 4:23-5(a)(1). Plaintiffs did not oppose the

motion, and the trial court entered an order dismissing the complaint without

prejudice on September 22, 2023.

On December 1, 2023, defendants filed a motion for dismissal with

prejudice pursuant to Rule 4:23-5(a)(2), emphasizing over sixty days had

elapsed since the dismissal without prejudice and plaintiffs still had not provided

complete responses. On December 28, 2023, plaintiffs filed a motion to restore

the complaint, submitting their certified answers to interrogatories and

responses to the notice to produce. However, plaintiffs did not provide an expert

report in response to Interrogatory No. 10. Instead, they stated "to be provided."

Also, for Interrogatory No. 16, which requested the nature, basis, amount, and

1 November 24, 2023 was the final discovery end date. Plaintiffs did not move to extend discovery. A-3817-23 5 method of calculating damages, plaintiffs referenced their answer to

Interrogatory No. 11, which simply restated their claim and added: "[W]e are

not certain of the amount of damages we [have] incurred." Defendants opposed

restoration of the complaint and objected to the answers as incomplete and

lacking any expert report or damages calculation.

On January 17, 2024, plaintiffs submitted a certification stating: "I [sic]

have been advised by my attorney that the [d]efendants filed a [m]otion to

[d]ismiss with [p]rejudice because of a previous answer that I have not fully

responded to regarding demands for discovery."

The trial court scheduled oral argument on the motion to dismiss with

prejudice for January 22, 2024. However, on January 19, 2024, plaintiffs'

counsel requested an adjournment, which the court granted over defendants'

objection.

On February 8, 2024, the trial court heard oral argument both on

defendants' motion to dismiss with prejudice and the plaintiffs' motion to

restore. The trial court agreed to adjourn the motion again to allow plaintiffs to

correct the discovery deficiencies, instructing: "[I]n four weeks, if there's an

expert report, . . . [t]hen we could talk about restoring the case and paying costs ."

The court then scheduled oral argument for March 1, 2024. However, on

A-3817-23 6 February 28, 2024, plaintiffs requested another adjournment of two weeks as

they were unable to provide an expert report by March 1, 2024. The trial court

again granted the adjournment over defendants' objection and rescheduled oral

argument for March 15, 2024. On March 13, 2024, plaintiffs provided an expert

report by Barry Levine, Esq., who opined on the applicable standard of care with

respect to legal malpractice but only briefly addressed causation and failed to

provide a computation of damages or specification of plaintiffs' losses.

The trial court heard oral argument again on the motions on March 15,

2024. Defendants noted the expert report lacked the amount of the damages,

how damages had been computed, and any numbers with respect to plaintiffs'

claimed future losses. The trial judge noted over six months had passed and

"nothing ha[d] changed," stating he "tried to stretch this out . . . for a long period

of time to resolve the issue because [he wanted] the case adjudicated on the

merits."

On April 4, 2024, the trial court entered an order dismissing plaintiffs'

complaint with prejudice and denying plaintiffs' pending motion to restore as

moot. It found plaintiff's answers to interrogatories were "not fully responsive"

and plaintiffs "fail[ed] to provide the defendants the requested expert [] reports

or the nature of the amount of damages they're seeking." The trial judge noted:

A-3817-23 7 "[I]t's probably one or [] two occasions in my entire [twelve] years on the bench

that I had to dismiss with prejudice. . . ."

Plaintiffs filed a motion for reconsideration, arguing the deficiencies were

the result of their counsel's neglect and urging the court to impose a lesser

sanction. On June 20, 2024, the trial court issued an oral order denying

reconsideration. The court explained:

This [c]ourt found [p]laintiffs' answers to [d]efendants' interrogatories were not really responsive. Moreover, this [c]ourt found that although [p]laintiffs provided an expert report, the report was inadequate with respect to damages. Lastly, this [c]ourt found that . . . plaintiffs failed to establish exceptional circumstances and that this report lacked sufficient information. . . .

The trial court issued a written order on June 28, 2024, providing

additional reasoning for its denial of plaintiffs' motion for reconsideration.

Specifically, the court addressed plaintiffs' reliance upon an unpublished

opinion, and distinguished it from this case, noting the plaintiffs in the

unpublished case "were unaware of their attorney's multiple missteps and were

unaware of the pending dismissal[,]" unlike the plaintiffs here. The court found

plaintiffs "were aware of the pending [m]otion to [d]ismiss with [p]rejudice,

evidenced by their January 1[7], 2024[] certification saying the same." The

court added: "[P]laintiffs' counsel also certified he notified his clients of the

pending [m]otion to [d]ismiss with [p]rejudice not later than [seven] days prior

A-3817-23 8 to the return date of the [m]otion, pursuant to R. 4:23-5(a)(2)." The trial court

found the discovery deficiencies had not been fully addressed. Accordingly,

plaintiffs' motion for reconsideration was denied. This appeal followed.

II.

A trial court's decision on a discovery matter is "entitled to substantial

deference" and "will not be overturned absent an abuse of discretion." DiFiore

v. Pezic, 254 N.J. 212, 228 (2023). Motions for reconsideration, governed by

Rule 4:49-2, are also reviewed pursuant to an abuse of discretion standard. AC

Ocean Walk, LLC v. Blue Ocean Waters, LLC, 478 N.J. Super. 515, 523 (App.

Div. 2024). An abuse of discretion requires the moving party demonstrate a

decision was "made without a rational explanation, inexplicably departed from

established policies, or rested on an impermissible basis." Borough of

Englewood Cliffs v. Trautner, 478 N.J. Super. 426, 437 (App. Div. 2024)

(quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)). However,

we owe no special deference to the trial court's conclusions of law or the legal

consequences that flow from established facts. Cherokee LCP Land, LLC v.

City of Linden Plan. Bd., 234 N.J. 403, 414-15 (2018).

Pursuant to Rule 4:49-2, reconsideration of a final order is reserved for

cases falling within a narrow scope "where either the court's decision was made

A-3817-23 9 upon a 'palpably incorrect or irrational basis,' or 'it is obvious that the court

either did not consider, or failed to appreciate the significance of probative,

competent evidence.'" State v. Keogh, 481 N.J. Super. 67, 84 (App. Div. 2025)

(quoting Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 462 (App. Div.

2002)). This is because "our jurisprudence imposes more stringent standards on

reconsideration of, or relief from, final orders and judgments, in recognition of

the value placed on finality, and the stability of judgments." Ibid.

Failure to comply with a demand for discovery subjects the non-compliant

party to dismissal in accordance with Rule 4:23-5. The Rule creates a two-step

dismissal procedure. First, the compliant party moves for dismissal without

prejudice. R. 4:23-5(a)(1). If that motion is granted, the non-compliant party

has sixty days to cure and move to vacate the dismissal order. R. 4:23-5(a)(2).

The compliant party may move to dismiss with prejudice only after the sixty -

day period has expired if the non-compliant party has not cured the discovery

defects. Ibid. The motion to dismiss with prejudice "shall be granted" unless a

motion to vacate is filed by the non-compliant party and "either the demanded

and fully responsive discovery has been provided or exceptional circumstances

are demonstrated." Ibid.

A-3817-23 10 Seventy days after the order dismissing the complaint without prejudice

was entered, defendants filed a motion for dismissal with prejudice pursuant to

Rule 4:23-5(a)(2). Accordingly, the trial judge was required to dismiss the

complaint with prejudice unless plaintiffs filed a motion to vacate and "either

the demanded and fully responsive discovery ha[d] been provided or exceptional

circumstances [were] demonstrated." R. 4:23-5(a)(2).

Plaintiffs contend they had served the expert report, responsive answers

to interrogatories, and all documents within their possession. However, it must

be noted the expert report was not submitted until March 13, 2024, 174 days

after the order dismissing the complaint without prejudice was entered and after

numerous hearings and requests to produce.

Furthermore, the trial court correctly determined the expert report was

lacking. When the expert report was ultimately produced, it did not specify any

monetary amount representing damages or future losses as alleged in the

complaint, nor did it adequately address causation. It merely opined as to the

applicable standard of care and defendants' alleged deviation from it. Although

the expert report included a section titled "damages," it neglected to state a

monetary figure and simply characterized the damages as "substantial costs."

Additionally, the trial court correctly determined plaintiffs' responses were not

A-3817-23 11 sufficiently responsive. Their response to Interrogatory No. 16, which requested

the nature, basis, amount, and method of calculating damages, referenced their

answer to Interrogatory No. 11, which simply restated their claim and added:

"[W]e are not certain of the amount of damages we incurred." After nearly two

years, plaintiffs provided nothing regarding damages and little regarding

causation, rendering their responses "patently inadequate." See Zimmerman v.

United Servs. Auto. Ass'n, 260 N.J. Super. 368, 377 (App. Div. 1992)

(distinguishing responses not fully meeting the propounder's expectations from

"patently inadequate" responses).

In considering whether to dismiss claims due to a discovery violation, "the

court must consider a number of factors, including whether . . . the defendant

suffered harm, and if so, to what degree." Gonzalez v. Safe & Sound Sec. Corp.,

185 N.J. 100, 115 (2005) (citing Abtrax Pharms., Inc. v. Elkins–Sinn, Inc., 139

N.J. 499, 514 (1995)). Furthermore, our Supreme Court has held "when the

plaintiffs' or plaintiff's disregard of a court order impairs 'the defendant's ability

to present a defense on the merits,' the defendant will be deemed to have suffered

irreparable prejudice." Id. at 116 (quoting, State v. One 1986 Subaru, 120 N.J.

310, 315 (1990)).

A-3817-23 12 The trial court found plaintiffs had failed to provide any information in

the expert report and answers to interrogatories quantifying the amount of

damages sought. In addition, while the expert report briefly mentioned

causation and stated defendants' deviation from the standard of care "was the

proximate cause of the damages suffered by the [p]laintiffs[,]" the report failed

to elaborate on causation any further. See Froom v. Perel, 377 N.J. Super. 298,

313 (App. Div. 2005) ("To establish the requisite causal connection between a

defendant's negligence and plaintiff's harm, plaintiff must present evidence to

support a finding that defendant's negligent conduct was a 'substantial factor' in

bringing about plaintiff's injury, even though there may be other concurrent

causes of the harm."). Defendants were prejudiced by those deficiencies

because without such information they could not adequately prepare a defense

against legal malpractice or move for summary judgment. See Morris Props.,

Inc. v. Wheeler, 476 N.J. Super. 448, 461 (App. Div. 2023) ("Plaintiffs' failure

to present expert evidence on proximate causation and damages in legal

malpractice case entitles defendants to judgment dismissing the case as a matter

of law."); see also Kaplan v. Skoloff & Wolfe, P.C., 339 N.J. Super. 97, 103-04

(App. Div. 2001) (finding expert testimony is required to establish the value of

the claim in a legal malpractice action).

A-3817-23 13 A review of the record demonstrates plaintiffs received ample opportunity

to remedy their noncompliance. Throughout the pretrial process, defendants

continuously alerted plaintiffs to specific deficiencies, especially the lack of a

damages figure and the lack of an expert report, necessary for their own rebuttal

expert report and depositions. The court adjourned several hearings, delineated

what curative actions were necessary, and made restoration contingent on an

expert report addressing causation and damages. Yet after almost two years

since defendants' first request for production, plaintiffs still had not provided

the requisite discovery, and there is nothing in the record to suggest a lesser

sanction would have compelled compliance. Moreover, plaintiffs presented no

exceptional circumstances that would excuse non-compliance. Given the trial

court's repeated adjournments, explicit findings regarding the continued

inadequacy of discovery responses, and express warnings the case would not be

restored absent a sufficient expert report, the trial court did not abuse its

discretion in dismissing the complaint with prejudice.

Affirmed.

A-3817-23 14