On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-3539-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 9, 2011
Before Judges Cuff and Sapp-Peterson.
Plaintiff appeals the dismissal, without prejudice, of his complaint in which he asserts both common law and civil rights claims against defendants, The City of Atlantic City, the Atlantic City Police Department (ACPD), and three individually named defendants, all of whom were members of the ACPD at the time plaintiff claims he was wrongfully evicted from his apartment by his landlord with the assistance of defendants. Defendants propounded interrogatories upon plaintiff, which they claim plaintiff failed to responsively answer. As a result, defendants filed a motion, pursuant to Rule 4:23-5(a)(1), seeking dismissal of plaintiff's complaint for failure to provide discovery. Plaintiff filed no opposition and the court granted the motion, dismissing plaintiff's complaint without prejudice. The present appeal followed.
On appeal plaintiff contends he provided discovery to defendants every time discovery was sought, he was never deposed nor allowed to interact with the trial judge. Additionally, he contends he never received any communication from the court and the judge's decision dismissing his complaint was "partial, equivocal, bias, unjustly with collusion favorable to the defendants, and illegal just like everything else, that has been adjudicated by the defendants in this case."
The May 25, 2010 order dismissing plaintiff's complaint without prejudice pursuant to Rule 4:23-5 is not a final order. Kwiatkowski v. Gruber, 390 N.J. Super. 235, 236 (App. Div. 2007). Appeals to the Appellate Division are from final judgments unless leave to appeal has been granted. R. 2:2-3(a)(1) and R. 2:5-6. Because the order was not a final disposition of the case and leave to appeal was never sought, we dismiss the appeal without prejudice. If, as plaintiff contends, he has provided the requisite discovery to defendants, he may file a motion seeking reinstatement of his complaint. R. 4:23-5(a)(1). Otherwise, defendants may seek dismissal of plaintiff's complaint with prejudice pursuant to Rule 4:23-5(a)(2).