EDWIN LORENZO v. JOHN CLEARY, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1355-05T21355-05T2

EDWIN LORENZO,

Plaintiff-Appellant,

v.

JOHN CLEARY,

Defendant-Respondent,

and

RUSSELL ANDERSON, MICHAEL H.

BURNS, JAMES NOVAK, and

VIVIAN CONSENTINO,

Defendants.

________________________________________________________________

 

Submitted July 5, 2006 - Decided July 26, 2006

Before Judges Lefelt and Axelrad.

On appeal from the Superior Court of

New Jersey, Law Division, Middlesex

County, Docket No. L-6065-03.

Appellant, Edwin Lorenzo, submitted

a pro se brief.

Chamlin, Rosen, Uliano & Witherington,

attorneys for respondent, and Gene J.

Anthony, attorney for respondent (John

T. Bazzuro and Gene Anthony, on the

briefs).

PER CURIAM

Plaintiff, Edwin Lorenzo, incarcerated at East Jersey State Prison for second-degree burglary, terroristic threats, and other offenses, sued for false arrest an Eatontown police officer, John Cleary; several Sayreville police officers, including Michael Burns, Russell Anderson, and James Novak; and a mother and daughter, respectively Vivian and Katherine Cosentino. The false arrest allegations, which plaintiff advances pro se, grew out of a domestic violence dispute between plaintiff and Katherine Cosentino. Plaintiff appeals from a motion judge's dismissal of the complaint, with prejudice, for plaintiff's failure to appear on the scheduled trial date.

The trial had originally been scheduled for March 28, 2005. When plaintiff failed to appear, the case was conferenced and adjourned until May 23, 2005, to allow plaintiff to arrange for his transportation to court. On April 14, 2005, upon defendant John Cleary's application, the matter was further adjourned until July 11, 2005.

Several months before the scheduled trial date, in accordance with instructions he had previously received from the court, plaintiff applied for an order requiring his production for trial. On May 13, 2005, a Superior Court judge issued the requested order, directing that plaintiff be produced on July 11, 2005.

However, on July 5, 2005, upon defendant Cleary's application noting that he had a previously scheduled vacation on the trial date, the court adjourned the trial until August 8, 2005. Plaintiff did not prepare another motion seeking his production for the rescheduled August date and no new production order was forwarded to the prison. Consequently, plaintiff was unable to appear on the trial date. The trial judge dismissed plaintiff's case with prejudice and denied plaintiff's subsequent motion for reconsideration. This appeal followed.

Rule 1:2-4(a) permits the dismissal of a complaint for failing to appear, but only when the failure is "without just excuse or because of failure to give reasonable attention to the matter." Even if plaintiff had a paralegal assisting him, it was reasonable to assume that plaintiff's motion to produce, which had yielded one order to produce, would be extended in the event of an adjournment. This is especially so because adjournment of the trial was granted to accommodate one of the defendants, officer Cleary. In such a case, the court could have, on its own motion, issued a new order to produce or tasked defendant Cleary's attorney with preparing a new draft order.

"[T]he dismissal remedy, especially, as here, a dismissal with prejudice, should not be invoked except in the case of egregious conduct on the part of a plaintiff, and should generally not be employed where a lesser sanction will suffice." Connors v. Sexton Studios, Inc., 270 N.J. Super. 390, 393 (App. Div. 1994). We do not find sufficient justification warranting dismissal of this matter with prejudice, and we reverse and remand for further proceedings. Obviously, given the procedural posture of this appeal, we take no position on the merits of plaintiff's complaint.

Reversed and remanded.

 

(continued)

(continued)

4

A-1355-05T2

July 26, 2006