NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
Plaintiff Desiree Cisco appeals from an order dismissing her complaint against defendants A.C. Moore Arts & Crafts, Inc. and Richard Niemczyk with prejudice pursuant to R. 4:23-5(a)(2) for failure to provide discovery and denying her motion for reconsideration. Because we cannot find on this record1 that the judge abused her discretion in dismissing plaintiff's complaint with prejudice, we affirm.
Following what she alleged was a constructive discharge, plaintiff brought a complaint against defendants claiming she was subjected to a hostile environment, retaliation and the intentional infliction of emotional distress. Shortly after filing their answer, defendants served their first request for production of documents in September 2011. Included therein was a request that plaintiff
[p]roduce all documents concerning any income or earnings you have received from any source (including self-employment) from ten (10) years prior to your employment with A.C. Moore to the present, including but not limited to, copies of hire letters, pay stubs, tax returns, W-2 forms and 1099 forms. For tax returns, including W-2 forms and/or 1099s, you may, alternatively, produce a duly-executed authorization for the release of such records to [defendants' counsel].
Plaintiff responded to the request stating:
Objection. This request is overly broad and unduly burdensome and not designed to lead to the discovery of admissible evidence. Without waiving this objection, [p]laintiff is in the process of obtaining copies of the documents regarding her income or earnings and they will be supplied to [defendants].
Two years later,2 defendants' counsel sent a letter regarding plaintiff's failure to have provided any information as to her income and earnings. Specifically, defendants noted that
[d]espite [p]laintiff's statement that she will produce said information, she has failed to provide same. Plaintiff's earnings prior to her employment with A.C. Moore, as well as since her employment ceased, is completely relevant to this matter, as it goes to [p]laintiff's damages. Therefore, [p]laintiff must produce same, or at least produce a duly-executed release to allow [defendants' counsel] to obtain said documentation.
When the documents were not forthcoming, defendants filed a motion to compel production and extend discovery. The court granted the motion, allowing a short extension of discovery and noting no further extensions would be granted in light of the approximately 841 days of discovery that had already elapsed.
When the discovery was not produced in accordance with the court's order, defendants moved to dismiss the complaint without prejudice pursuant to R. 4:23-5(a)(1). Although plaintiff did not file opposition, she served over 330 pages of documents on defendants, requesting that they withdraw their motion. The court, at defendants' request, instead adjourned the motion one cycle to allow defendants an opportunity to review the documents.
With regard to the request for income and earnings information, plaintiff stated, "[r]esume with work history is on record, already submitted. I have submitted copies of the tax returns that are still in my possession." Plaintiff does not dispute that the only documents she attached responsive to the request were an unfiled 2010 tax return ("for information only"); a 2010 form 8879 "IRS e-file Signature Authorization" in favor of Montclair United Way with a one-page "US 1040 three-year tax summary" for 2008, 2009, and 2010; and W-2s for B.A. Frame Company, Corners Inc., A.C. Moore and Framed Picture Enterprises for the years 2001, 2005, 2006, 2007, and 2008.
Contending the documents were still deficient, defendants asked the court to hear their motion. At oral argument, plaintiff's counsel asked for an additional fourteen days to produce all outstanding discovery. The court denied the motion to dismiss without prejudice and allowed plaintiff the additional time requested to produce the documents. Plaintiff thereafter produced another round of documents and a statement of damages claiming over $600,000 in lost income.3 Claiming plaintiff had merely resubmitted the documents she had already produced4 and not responded to the outstanding requests, defendants again moved to dismiss the complaint without prejudice. After hearing argument, the court issued an order granting defendant's motion to dismiss the complaint without prejudice.
After plaintiff again submitted the same documents along with a certification that she had no others in her possession, she moved to reinstate her complaint and, when that motion was denied, to vacate the order dismissing the complaint without prejudice. The court denied both motions for the same reason, plaintiff's failure to make a good faith response to the request for documents regarding her income and earnings. In the absence of responsive documents curing the deficiencies, defendants moved for dismissal with prejudice pursuant to R. 4:23-5(a)(2). Plaintiff opposed and cross-moved for reconsideration of the prior orders denying reinstatement. Defendants responded with a detailed letter brief of the items still outstanding. After hearing argument, the court dismissed plaintiff's complaint with prejudice finding that defendants had repeatedly requested and plaintiff failed to produce documents reflecting her income, including her income tax returns for the years specified.5 This appeal followed.
The decision to deny a motion to reinstate a complaint dismissed for failure to provide discovery is committed to the sound discretion of the motion judge. St. James AME Dev. Corp. v. City of Jersey City, 403 N.J.Super. 480, 484 (App. Div. 2008). We will decline to interfere with the exercise of that discretion unless we view an injustice has been done. Ibid. We find no injustice here.
The parties agree about the few documents plaintiff submitted in response to defendants' request for documents reflecting her earnings and income. Plaintiff contends that the documents she provided are fully responsive to the request and "she has nothing more to give." Although plaintiff may not have any other responsive documents in her possession, that does not explain her failure to produce authorizations to allow defendants to secure the documents elsewhere. Plaintiff has asserted a claim of hundreds of thousands of dollars in lost wages. Her tax records are directly relevant to that claim as well as to her claim for emotional distress. See Fik-Rymarkiewicz v. Univ. of Med. & Dentistry of N.J., 430 N.J.Super. 469, 482 (App. Div.), certif. denied, 214 N.J. 118 (2013). Defendants have a right to fully explore the bases for those claims and need not be limited to the documents in plaintiff's possession when they have specifically requested authorizations to obtain the records from employers and the IRS.
Although we agree that the two-step procedure of Rule 4:23-5 is designed to compel the discovery rather than to dismiss the complaint, Adedoyin v. Arc of Morris Cnty. Chapter, Inc., 325 N.J.Super. 173, 180 (App. Div. 1999), we are satisfied that the trial judge gave plaintiff multiple opportunities to provide the discovery so as to avoid dismissal of the complaint. We cannot find she abused her discretion on this record.
Defendants also asserted that plaintiff failed to provide medical authorizations to allow defendants to obtain her medical and prescription records, and the trial judge granted the motion on the basis of plaintiff's failure to provide those documents as well. There is no question that at least one provider declined to provide defendant records claiming the authorization plaintiff executed was inadequate. The parties vigorously dispute, however, whether plaintiff ultimately cured the deficiencies in the authorizations. Because we conclude that plaintiff's failure to provide documents reflecting her income and earnings, including her tax returns, was sufficient to support the dismissal of her complaint, we need not decide whether her failure to provide medical authorizations also supports that relief.
Affirmed.
