NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

The opinion of the court was delivered by

SUMNERS, Jr., J.A.D.

Plaintiff Joshua Bennett appeals a Law Division order dismissing his attorney malpractice complaint with prejudice for failure to provide discovery. For the reasons set forth below, we affirm.

I

Plaintiff's wife tragically passed away in 2011 after a brief two-month battle with pancreatic cancer. Prior to her passing, due to concerns over her deteriorating marital relationship and plaintiff's unemployment and mental health, she consulted with estate attorneys to provide some financial security for her two minor daughters and prevent plaintiff from receiving a share of her two life insurance policies, totaling $500,000. Accordingly, she removed plaintiff as the beneficiary of the policies, placed them in an irrevocable life insurance trust with her daughters as policy owners and beneficiaries of the proceeds, and designated her two cousins as trustees. She also designated her daughters as sole beneficiaries in her will, with her cousins serving as her fiduciaries.

In addition, plaintiff's wife executed a living will tailored to make sure her children could visit her if she was hospitalized and in the event plaintiff was banned from the hospital due to his behavior. The living will also precluded plaintiff from having any input into his wife's care or living arrangements.

After his wife's passing, plaintiff retained defendant Steven M. Gabor, an attorney, to invalidate his wife's estate planning actions. Defendant filed an order to show cause and verified complaint (estate complaint) seeking to revoke the life insurance trust and will on the basis of undue influence and appoint plaintiff as estate administrator and life insurance beneficiary. After the trustees and estate filed an extensive opposition to the order, no reply was filed on behalf of plaintiff. Consequently, the court dismissed the order to show cause and complaint with prejudice.

Plaintiff subsequently filed a legal malpractice complaint against defendant alleging that defendant's failure to file a reply to the opposition of his estate complaint resulted in its dismissal, and that plaintiff was never advised of his right to appeal the court's decision within forty-five days. In his defense, defendant asserted that plaintiff directed him not to file a reply. In addition, defendant maintained that plaintiff suffered no damages as a result of the alleged malpractice because plaintiff would not have succeeded in the underlying estate complaint, as "plaintiff was not a fit or appropriate recipient of [his wife's] life insurance proceeds."

In the ensuing discovery, defendant demanded that plaintiff execute several Health Insurance Portability and Accountability Act (HIPAA) release forms, allowing for the release of plaintiff's medical records. After refusing the demand, the court ordered plaintiff to provide defendant with a sworn list of all plaintiff's medical, psychiatric, and psychological providers (medical providers) over the last ten years. Following a case management conference on May 13, 2013, the court entered a case management order directing plaintiff to provide the HIPAA releases by May 30, 2013.

However, the releases were not executed. Consequently, as a result of a case management telephone conference on July 31, 2013, the court further ordered that plaintiff sign the HIPAA releases and forward them to defense counsel, who in turn was required to send the releases to the respective doctors, with instructions that the medical records be delivered directly to the court for in camera review.

Plaintiff again refused to provide the HIPAA releases. Thus, on October 18, 2013, the trial court, pursuant to Rule 4:23-2(b)(4), granted defendant's motion to dismiss plaintiff's complaint without prejudice for failure to provide the HIPAA releases, and further provided that "plaintiff shall have until December 18, 2013, to provide the requested information or face dismissal with prejudice."

On December 3, 2013, contrary to the process mandated by the court, plaintiff furnished defense counsel with copies of the completed HIPAA releases for ten different medical providers, the originals of which were allegedly sent to the medical providers by plaintiff's counsel. That same day, plaintiff filed a motion to restore the complaint to the active trial list, stating that he had complied with the court's order.

On December 20, 2013, the trial court denied the motion without prejudice, noting that "plaintiff has failed to comply with the specific mandates of the court's order." Specifically, the original HIPAA releases were not sent to defense counsel so that defense counsel could request that the medical records be sent directly to the court for in camera review. Also, plaintiff did not provide a complete list of all medical providers over the last 10 years.

On January 13, 2014, plaintiff filed a second motion to restore the complaint, requesting oral argument if the motion was opposed. This motion was administratively rejected for failure to pay the required restoration fee. Plaintiff corrected this oversight and refiled his motion to restore. Defendant opposed the motion and filed a cross-motion to dismiss the complaint with prejudice. In the meantime, plaintiff's counsel had begun receiving records from some medical providers, and forwarded them to the trial judge for his in camera review.1

At the time of the motions' oral argument on March 14, 2014, the court had received approximately three sets of records from plaintiff's medical providers for review. Nonetheless, contrary to the court's order, plaintiff did not send to defense counsel or the court his certification of a complete list of plaintiff's medical providers over the last ten years. Determining that plaintiff's deliberate failure to provide the ordered discovery delayed the proceedings for over a year, the court denied plaintiff's third motion to reinstate and granted defendant's cross-motion to dismiss the case with prejudice pursuant to Rule 4:23-5(a)(2).2 This appeal followed.

II

On appeal, plaintiff contends that he had complied with the court's discovery order and the dismissal of his complaint without prejudice should be reversed. Specifically, he argues that his complaint was dismissed using a "form over substance" approach, considering that by the time of oral argument, his medical providers knew that they had to send plaintiff's records directly to the court, and that the court had already conducted in camera review of some of the records that were forwarded by plaintiff's counsel.

In addition, plaintiff attempts to distinguish his situation from that in the seminal case of Abtrax Pharmaceuticals, Inc. v. Elkins-Sinn, 139 N.J. 499, 520 (1995), where the trial court's dismissal of the complaint with prejudice pursuant to Rule 4:23-2(b)(3) for failure to provide court-ordered discovery was upheld. He maintains that as a single father of two minor children, he "cannot be compared to [the plaintiff] pharmaceutical company" in Abtrax which prejudiced its adversary. See Id. at 520-21. Since there were no findings that plaintiff's discovery violation irreparably prejudiced defendant, plaintiff contends that less serious sanctions than dismissal with prejudice should have been imposed.

Plaintiff also argues that the court improperly placed emphasis on what it deemed was plaintiff's untruthfulness regarding his medical history before his wife's passing, which has no bearing on applying the considerations of Rule 4:23-5(a)(2). None of plaintiff's arguments are persuasive.

In dismissing plaintiff's complaint with prejudice, the judge relied on Rule 4:23-5(a)(2), which provides in part that:

Discovery rules are designed "to further the public policies of expeditious handling of cases, avoiding stale evidence and providing uniformity, predictability and security in the conduct of litigation." Zaccardi v. Becker, 88 N.J. 245, 252 (1982) (citations omitted). "The decision to deny a motion to reinstate a complaint dismissed for failure to provide discovery lies within the discretion of the motion judge." A&M Farm & Garden Ctr. v. Am. Sprinkler Mech., L.L.C., 423 N.J.Super. 528, 534 (App. Div. 2012) (citations omitted).

Contrary to plaintiff's contentions, the record shows that he did not adhere to the trial court's discovery order. In defiance of several directives of the court, including an order of dismissal without prejudice, plaintiff never produced a sworn list of his medical providers for the prior ten years, along with the corresponding signed HIPAA releases. Plaintiff also failed to allow defense counsel to deliver the original HIPAA releases to the medical providers, with the responsive medical records going directly to the court instead of plaintiff's counsel.

Plaintiff's piecemeal and incomplete compliance is an unacceptable response to a trial court's discovery orders. Plaintiff was given ample opportunity to comply, and was repeatedly warned by the court "that failure to provide fully responsive discovery would result in the dismissal with prejudice of his complaint."

Plaintiff's reliance upon Abtrax is misplaced. That case involved the court's application of Rule 4:23-2(b)(3), which under just circumstances authorizes the court to dismiss an action for failure to comply with a court's discovery order. In this case, the court relied upon Rule 4:23-5(a)(2) to dismiss plaintiff's complaint with prejudice after he had failed to timely vacate an earlier order that dismissed his complaint without prejudice.

Under these circumstances, we conclude that the trial court's order of dismissal with prejudice was in conformity with Rule 4:23-5(a)(2), and not an abuse of discretion.

Affirmed.