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Kizima v. Bartone


November 23, 2010


On appeal from the Superior Court of New Jersey, Chancery Division, General Equity Part, Union County, Docket No. C-0122-08.

Per curiam.


Argued November 3, 2010

Before Judges Wefing and Baxter.

Plaintiffs Russell Kizima and Kimberly Imperiale appeal from an August 14, 2009 Chancery Division order that dismissed their complaint with prejudice pursuant to Rule 4:23-5(a)(2) for failure to supply discovery. We need not address plaintiffs' assertion that the judge erred in reaching that conclusion, because we agree with plaintiffs' alternative argument that Rule 4:23-5(a)(2) does not permit the motion judge to dismiss a complaint with prejudice unless the attorney for the delinquent party is present in court for the motion hearing; and their attorney was not. We agree with plaintiffs' argument that because the judge made his ruling based only on the affidavits, without their attorney being present, Rule 4:23-5(a)(2) was violated and the order under review must be reversed.

Plaintiffs leased a single family home from defendants Phillip and Lorraine Bartone. The lease contained a provision affording plaintiffs the option to purchase the premises, with defendants being obliged to provide the financing for the entire purchase price at an interest rate of six percent. Although plaintiffs exercised their option to purchase the property, defendants refused to proceed with a closing. Consequently, plaintiffs filed a complaint in the Chancery Division, General Equity Part on August 13, 2008 seeking judgment compelling defendants to comply with the terms of the lease-purchase agreement.

Defendants responded by propounding two sets of interrogatories, one for each plaintiff, and a request for production of documents, see R. 4:18-1(a). When plaintiffs responded to defendants' discovery requests by providing one set of interrogatories, signed by both plaintiffs jointly, rather than a separate set of interrogatory answers from each plaintiff, defendants contacted plaintiffs' counsel to resolve the problem. When defense counsel was unsuccessful in that effort, he filed a motion pursuant to Rule 4:23-5(a)(1) seeking the dismissal of plaintiffs' complaint without prejudice. The court granted the motion by order of April 3, 2009.

On July 1, 2009, defendants moved pursuant to Rule 4:23-5(a)(2) for dismissal of plaintiffs' complaint, this time with prejudice, because plaintiffs still had not provided separate answers to the separate sets of interrogatories that defendants had propounded, and still had not supplied the requested documents. On July 31, 2009, the judge denied defendants' motion, noting that defendants could resubmit the motion in fourteen days if plaintiffs still had failed to comply.

Plaintiffs filed a cross-motion to reinstate the complaint and to vacate the earlier order of dismissal without prejudice. On August 14, 2009, the judge denied plaintiffs' motion for reinstatement and granted defendants' motion to dismiss the complaint with prejudice pursuant to Rule 4:23-5(a)(2). Notably, counsel for plaintiffs was not present as the motion was decided solely on the basis of the motion papers and affidavits that had been submitted.

On appeal, plaintiffs continue to insist that the answers they supplied were fully responsive to defendants' discovery requests. In addition, they maintain that because Rule 4:23-5(a)(2) prohibits a judge from granting a motion for dismissal with prejudice, unless the attorney for the delinquent party is present, which their attorney was not, the judge lacked authority to grant defendants' motion.

At appellate oral argument, we asked counsel for defendants to explain how defendants were entitled to an affirmance of the August 14, 2009 order in light of the express requirement in the Rule that counsel for the delinquent party be present when a motion to dismiss with prejudice is under consideration. Rule 4:23-5(a)(2) provides:

If an order of dismissal or suppression without prejudice has been entered pursuant to paragraph (a)(1) of this rule and not thereafter vacated, the party entitled to the discovery may, after the expiration of 60 days from the date of the order, move on notice for an order of dismissal or suppression with prejudice. . . . Appearance on the return date of the motion shall be mandatory for the attorney for the delinquent party or the delinquent pro se party. The moving party need not appear but may be required to do so by the court.

Counsel for defendants asserted that we should not reverse on the ground that plaintiffs' counsel was not present on the return date of the motion because plaintiffs and their attorney were well aware of defendants' motion for dismissal with prejudice and had not provided the interrogatories and documents despite defendants' many requests and despite the judge's prior order. Counsel for defendants proceeded to recite a long litany of instances in which plaintiffs or their counsel were either uncooperative or had needlessly caused delay. We will not burden the record with a description of those circumstances.

Suffice it to say, we are satisfied that, in light of the unambiguous and unconditional requirement of Rule 4:23-5(a)(2), the motion judge lacked authority to grant defendants' motion for dismissal with prejudice without plaintiffs' counsel being present. The requirement of such presence has a salutary purpose, as it affords the attorney for an allegedly delinquent party the opportunity to persuade the judge that his or her clients' answers are -- despite the adversary's arguments to the contrary -- fully responsive. Thus, because the judge decided the motion for dismissal with prejudice on the papers, and did not afford plaintiffs' attorney the opportunity to appear in person and respond, the granting of defendants' motion violated the express provisions of Rule 4:23-5(a)(2) and constitutes reversible error.

Reversed and remanded.


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