On appeal from the Superior Court of New Jersey, Law Division, Camden County, L-1810-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 1, 2008
Before Judges Lisa and Reisner.
Plaintiff Henry Marter appeals from a January 18, 2008 order dismissing his complaint against defendants Gloucester City and its Mayor and Council, on summary judgment "without prejudice." For the reasons that follow, we dismiss the appeal as interlocutory.
Plaintiff filed a verified complaint contending that the City intended to perform some street widening work on what he claimed was his property by virtue of the City's having abandoned a right of way. He also contended that the work would interfere with his use of a car dealership on his property. Plaintiff asserted, among other claims, violations of the Tort Claims Act, N.J.S.A. 59:1-1 to 59:12-3. Through an order to show cause (OCS), he also initially sought injunctive relief to prevent the road work from going forward. In response to the OSC, the City claimed that it owned the property and was entitled to dig up the pavement and proceed with the road work.
At a hearing on the OSC on April 27, 2007, the trial court denied preliminary injunctive relief, concluding that money damages would be an adequate remedy if the court ultimately ruled that plaintiff owned the property. Thereafter, plaintiff filed an amended complaint, reiterating his TCA claims. On defendant's motion, the court dismissed the TCA claims without prejudice on June 8, 2007, because plaintiff had failed to wait the statutorily-required six months after filing a notice of tort claim, before filing suit. See N.J.S.A. 59:8-3, -8.
Defendant also filed a motion to dismiss or in the alternative for summary judgment seeking dismissal of the remainder of the complaint. The motion was not supported by a statement of material facts, as required by Rule 4:46-2, or by affidavits establishing evidentiary facts. See Celino v. Gen. Accident Ins., 211 N.J. Super. 538, 544 (App. Div. 1986). At oral argument of the motion on January 18, 2008, plaintiff's counsel contended that she had not yet obtained discovery of the City's maps to enable her to possibly establish that her client owned the disputed land or that the City had abandoned its right of way.
However, in response to the court's suggestion, plaintiff's counsel agreed that the complaint could be dismissed without prejudice, and she observed that the dismissal would give her time to review the City's maps to ensure that she had a good faith basis to claim that her client owned the land. She also noted that the six-month waiting period to re-file the TCA claim had only recently expired. See N.J.S.A. 59:8-8. Defense counsel agreed that the complaint could be dismissed without prejudice. Apparently based on this agreement between counsel, the trial judge entered the January 18, 2008 order granting "summary judgment" dismissal without prejudice.
After reviewing the record and considering the unusual procedural posture of the case, we conclude that the January 18, 2008 order was interlocutory rather than final. By the parties' agreement, it did not preclude plaintiff from re-filing his entire complaint, including his TCA claims once they ripened. Consequently, because there is no order finally dismissing plaintiff's complaint on the merits, we dismiss this appeal as interlocutory.
In so ruling, however, we note that summary judgment cannot be granted without prejudice Auster v. Kinoian, 153 N.J. Super. 52, 56-57 (App. Div. 1977); hence, rather than characterizing the January 18 order as "summary judgment," the court should simply have characterized the order as approving a voluntary dismissal of plaintiff's complaint without prejudice. We so construe the order. In the event plaintiff re-files his complaint, he should have an opportunity to take discovery before defendant files a summary judgment motion, and any such motion should be properly supported by legally competent evidence and a statement of material facts. See R. 4:46-2.
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