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Michael West and Saa Hetep Obi,*Fn1 v. Orbit Development Partners-51

June 3, 2011

MICHAEL WEST AND SAA HETEP OBI,*FN1 PLAINTIFFS-APPELLANTS,
v.
ORBIT DEVELOPMENT PARTNERS-51, L.L.C. AND COGSWELL REALTY GROUP, L.L.C., DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, Docket No. DC-041888-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 11, 2011

Before Judges Cuff and Sapp-Peterson.

Plaintiffs appeal the dismissal of their Special Civil Part cause of action which the court dismissed for discovery violations pursuant to Rule 4:23-5(a)(1) and (2). We affirm.

The complaint, filed August 12, 2009, alleges that defendants' action caused flooding in plaintiffs' basement. Defendants propounded interrogatories upon plaintiffs on May 18, 2010. Plaintiffs failed to respond to the discovery request, resulting in defendants' motion to dismiss the complaint for failure to provide discovery. By order dated July 23, 2010, the court dismissed plaintiffs' complaint for failure to provide discovery pursuant to Rule 4:23-5(a)(1). Thereafter, plaintiffs moved for reconsideration, contending the interrogatories served upon them had not been received until July 25, 2010. The court denied reconsideration but ordered plaintiffs to produce to defense counsel, within twenty days, proof of postal issues that plaintiffs were allegedly experiencing with the post office, and to also provide an address to which the defense could forward correspondence within five days of the date of the order. Defendants served plaintiffs with a copy of the order by certified and regular mail. The certified mail was returned as undelivered. The order sent by regular mail was not returned.

Sixty days following the entry of the court's July 23 order, plaintiffs had not yet provided the outstanding discovery. On September 23, defendants moved to dismiss the complaint with prejudice pursuant to Rule 4:23-5(a)(2). In support of the motion, defense counsel submitted a certification in which he indicated that plaintiffs had not yet provided the outstanding discovery and had failed to provide a different address to defendants in accordance with the August 27 order. The motion was made returnable October 15. On October 14, defendants received plaintiffs' responses to the interrogatories.

Plaintiffs filed opposition to the motion. Although the opposition papers are dated October 12, the papers were stamped as being filed with the court as of October 15 at 2:54 p.m. The court entered its decision dismissing plaintiffs' complaint with prejudice for failure to provide discovery at 12:53 p.m. There was no request for oral argument and neither party appeared. It is unclear whether the court had received a separate copy of the opposition papers because there is no reference to plaintiffs' opposition in the court's decision. The order dismissing the complaint, however, indicates the motion was opposed. The present appeal followed.

Plaintiffs raise the following points for our consideration:

POINT I

THE TRIAL COURT'S ORDER SHOULD BE REVERSED BECAUSE THE TRIAL COURT WAS NOT MADE AWARE OF REL[E]VANT FACTS THAT WERE KNOWN TO . . . DEFENDANT-RESPONDENT[S'] ATTORNEYS AND WHICH SHOULD HAVE BEEN DISCLOSED TO PERMIT THE TRIAL COURT TO MAKE AN INFORMED DECISION. POINT II

THE TRIAL COURT'S ORDER SHOULD BE REVERSED BECAUSE THE TRIAL COURT COMMIT[T]ED A HARMFUL ERROR DUE TO ERRORS IN FACTFINDING BECAUSE THE TRIAL COURT FAILED TO EXAMINE THE EVIDENCE PRESENTED IN . . . PLAINTIFF[S'] OBJECTION TO THE MOTION TO DISMISS, . . . PLAINTIFFS' DISCOVERY AND . . . PLAINTIFFS' INTERROGATORIES DESPITE THE FACT THAT THEY WERE IN THE TRIAL COURT'S POSSESSION AND . . . DEFENDANT-RESPOND[E]NTS' ATTORNEYS['] POSSESSION BEFORE THE DATE AND TIME THE ORDER WAS ISSUED BY THE TRIAL COURT.

POINT III

THE TRIAL COURT'S ORDER SHOULD BE REVERSED BECAUSE THE TRIAL COURT COMMIT[T]ED A HARMFUL ERROR BY ISSUING AN ORDER THAT WAS NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE PRESENTED IN . . . PLAINTIFFS' OBJECTION TO THE MOTION TO DISMISS, . . . PLAINTIFFS' DISCOVERY MATERIALS AND . . . ...


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