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Morris Imaging Associates, PA v. Rieck

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 12, 2007

MORRIS IMAGING ASSOCIATES, PA, PLAINTIFF-RESPONDENT,
v.
CYRUS RIECK, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division-Special Civil Part, Morris County, Docket No. DC-2159-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: November 15, 2007

Before Judges Cuff and Lisa.

Plaintiff Morris Imaging Associates, PA, filed a complaint in the Special Civil Part to recover the balance due for medical imaging services provided to defendant Cyrus Rieck. Defendant appeals from an order granting summary judgment in favor of plaintiff.

It is uncontested that defendant knew that plaintiff intended to file a motion for summary judgment. It is also uncontested that defendant did not receive the motion. Accordingly, defendant filed no opposition to the motion.

It is fundamental that a party is entitled to notice of any motion, including a dispositive motion. See Pressler, Current N.J. Court Rules, comment 2 on R. 1:6-2 (2008) ("It is virtually axiomatic that . . . all motions must be on notice to the adverse party."); R. 1:6-3; Seire v. Police & Fire Pension Comm'n, 4 N.J. Super. 230, 236 (1949) (finding that cross-motion for summary judgment could not be considered by the court because notice of the motion was not provided to adverse party), aff'd, 6 N.J. 586 (1951). When, as here, defendant did not receive the motion papers, the judgment must be vacated and the matter must be remanded.

We appreciate that plaintiff may feel some frustration with this disposition because it sent the motion papers to the address supplied to it by defendant. Nevertheless, defendant did not receive the papers. In fact, it appears that the address he provided is a combination of the addresses of the places at which defendant resided in the last two years. If the court concludes that the address provided by defendant was a ruse to delay the disposition of this matter, rather than an honest mistake, the motion judge has the authority to impose appropriate sanctions. See R. 4:1-8(a)(1), (b) (stating that by signing, filing or advocating a pleading, written motion, or other paper, a party represents that the paper is not presented for improper purposes, such as delay, and sanctions are available for violation of this rule); see also R. 4:25-7(b) (noting that failure to exchange required pretrial information may result in sanctions).

Reversed and remanded.

20071212

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