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Mierzwa v. Safe and Secure Self Storage


June 26, 2008


On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Bergen County, Docket No. DC-001335-07.

Per curiam.


Submitted: April 7, 2008

Before Judges C.S. Fisher and C.L. Miniman.

Plaintiff Edward J. Mierzwa appeals from the dismissal of his complaint without prejudice under Rule 4:23-5(a)(1) for failure to provide discovery. Because such an order is not a final order appealable as of right, we dismiss this appeal as improvidently filed.

Plaintiff filed his complaint against defendants Safe and Secure Self Storage (Storage) and Greenwich Insurance Company (Greenwich) in the Special Civil Part on or about January 17, 2007.*fn1 On February 21, 2007, counsel for Greenwich served plaintiff with interrogatories and a request for a production of documents, alerting him that responses were due by April 21, 2007.

On March 5, 2007, plaintiff filed a motion seeking entry of default against Storage; adjournment of the trial date from Tuesday, March 20, 2007, to a date in the future; and leave to proceed with discovery. Although it had not been served with the complaint, this motion prompted Storage on March 7, 2007, to file an appearance, oppose the entry of default, and cross-move to vacate default and extend the time to answer.*fn2 On March 20, 2007, plaintiff opposed the storage company's cross-motion. The cross-motion was apparently granted and the trial was adjourned to May 21, 2007.

On April 24, 2007, counsel for Greenwich wrote to plaintiff reminding him that his answers to interrogatories and responses to document requests were outstanding. Counsel advised that, if responses were not received immediately, Greenwich would file a discovery motion on May 9, 2007, seeking dismissal of the case for failing to provide discovery. Responses were not forthcoming and Greenwich moved to dismiss on May 8, 2007. Storage then served a demand for interrogatories on plaintiff on May 18, 2007. On May 21, 2007, Greenwich's motion was granted and plaintiff's complaint was dismissed without prejudice pursuant to Rule 4:23-5(a)(1). A second order to the same effect was entered on May 25, 2007.

On June 18, 2007, plaintiff wrote to the attorneys for both defendants and provided them with a list of items that had been stored. In the concluding paragraph plaintiff stated: "In the absence of an onsite inspection and opinion by a qualified professional, it is futile to complete the Interrogatory Request(s); however I can assure you that marine (waterproof) grade plywood is not used in any of the furniture pieces."

That same day plaintiff moved to vacate the order of dismissal and reinstate the case. On June 26, 2007, Storage filed opposition to restoration of the complaint, pointing out that plaintiff had readily admitted he had not provided full discovery and had indicated that he did not intend to do so. On June 28, 2007, Greenwich also opposed the reinstatement of the case, arguing that plaintiff had failed to provide any discovery as of that date. Apparently despite the opposition, the judge vacated the order of dismissal and reinstated the complaint to the active trial calendar on July 3, 2007.

That order precipitated a motion for reconsideration which was filed by Greenwich on July 16, 2007. The next day plaintiff filed a motion for summary judgment. Greenwich opposed plaintiff's summary judgment motion on July 20, 2007, and cross-moved for similar relief. Plaintiff promptly filed opposition to the cross-motion on July 26, 2007.

The motions were resolved by two orders, each entered on August 3, 2007. First, the judge denied the motion for summary judgment filed by plaintiff. Second, he granted the motion for reconsideration and vacated the reinstatement of plaintiff's complaint, thus leaving it dismissed without prejudice as specifically provided by the order of August 3, 2007.

Plaintiff appealed from the orders of August 3, 2007, by notice of appeal filed on August 28, 2007. The motion judge then filed a statement of reasons with this court pursuant to Rule 2:5-1(b) on September 19, 2007. He explained that he initially granted the order vacating the dismissal and reinstating the complaint under a belief that there was no opposition filed. As a consequence, the judge reconsidered that order in light of the opposition and the failure of plaintiff to provide discovery and he reentered the dismissal.

Rule 2:2-3(a)(1) clearly provides that an appeal as of right, as opposed to an appeal from an interlocutory order on leave granted by us, lies only from a final judgment of the trial court. The August 3, 2007, order was not final. It dismissed plaintiff's complaint without prejudice under Rule 4:23-5(a)(1) for failure to provide discovery. That rule specifically provides, "The delinquent party may move on notice for vacation of the dismissal or suppression order at any time before the entry of an order of dismissal or suppression with prejudice." R. 4:23-5(a)(1) (emphasis added). The caveat to such relief is that the delinquent party must fully and responsibly respond to all discovery requests in order to move to vacate the dismissal. Ibid. There has been no order of dismissal with prejudice under R. 4:23-5(a)(2), which is a final order appealable as of right.

We have previously held that an order of dismissal without prejudice under Rule 4:23-5(a)(1) is not appealable. Scalza v. Shop Rite Supermarkets, 304 N.J. Super. 636, 638 (App. Div. 1997); see also Finderne Heights Condo. v. Rabinowitz, 390 N.J. Super. 154, 160 (App. Div. 2007); Kwiatkowski v. Gruber, 390 N.J. Super. 235, 237 (App. Div. 2007). "[T]here is a strong policy against piecemeal review and interruption of the orderly processing of cases to disposition in the trial courts." Vitanza v. James, 397 N.J. Super. 516, 518 (App. Div. 2008). Counsel for defendants here should have moved to dismiss the appeal in order to vindicate this policy and relieve the Appellate Division of the burden of conducting plenary review of cases that are not ripe for appeal. Parker v. City of Trenton, 382 N.J. Super. 454, 458 (App. Div. 2006). Although, as in Parker, this matter has been fully briefed, we will not consider the merits of this appeal because they do not "genuinely warrant pretrial review." Ibid.

Appeal dismissed.

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