MARIA WAHL v. ROBERTA SCHOEN KESSLER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1917-08T21917-08T2

MARIA WAHL,

Plaintiff-Appellant,

v.

ROBERTA SCHOEN KESSLER as

the Trustee for FREDERIC S.

KESSLER, and/or FOOT ACTION,

and/or FREDERIC KESSLER,

Defendants-Respondents.

________________________________

 

Argued November 10, 2009 - Decided

Before Judges Fuentes, Gilroy and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4229-07.

Kathleen M. Cehelsky argued the cause for appellant (Druckman & Hernandez, P.C., attorneys; Martin P. Convery, on the brief).

Arthur J. Timins argued the cause for respondents (Shiriak & Timins, attorneys; Mr. Timins, on the brief).

PER CURIAM

Plaintiff Maria Wahl appeals from the November 7, 2008 order dismissing her complaint without prejudice for her failure to comply with a prior order that directed her to provide certain discovery. We dismiss the appeal.

In this personal injury action, plaintiff alleges that she suffered an injury to her lower back on August 5, 2006, when she slipped and fell on a sidewalk negligently maintained and controlled by defendants. During the course of discovery, plaintiff denied receiving medical treatment to her back prior to the alleged accident. On July 27, 2008, defendants obtained a copy of a triage record from the Robert Wood Johnson University Hospital-Rahway (formerly Rahway Hospital) indicating that plaintiff had been treated at the Rahway Hospital on April 5, 2002, for lower back pain radiating down both legs. In the medical history section of the report, hospital staff had written "sciatica 5 months ago [-] treated by chiropractor."

On July 30, 2008, defendants filed a motion seeking an order compelling plaintiff to disclose the name and address of the chiropractor who had treated her in or about 2001-2002, and to provide an authorization for release of her medical records from that chiropractor. On August 15, 2008, the trial court entered an order granting the motion. On September 5, 2008, because plaintiff had failed to comply with the August 15, 2008 order, defendants filed a motion seeking an order dismissing plaintiff's complaint for her failure to comply with that prior discovery order.

Plaintiff opposed the motion, contending that "[d]espite what [the] hospital records from six years ago show, she does not recall treating with a chiropractor." After the court had determined that plaintiff's opposing certification was silent as to her due diligence in attempting to comply with the August 15, 2008 order, the court carried the motion to provide plaintiff additional time to make appropriate inquiries of her medical providers and medical insurance companies to ascertain whether she had, in fact, been previously treated by a chiropractor and, if so, to provide the name of that chiropractor.

On November 7, 2008, the trial court, determining that plaintiff had not made a good faith effort to comply with the August 15, 2008 order, dismissed plaintiff's complaint without prejudice, subject to her doing all that "is necessary to get this information and then make an application to the [c]ourt at some future time" to reinstate the action. A confirming order was entered that date. It is from this order that plaintiff filed her notice of appeal.

On appeal, plaintiff argues that the trial court improperly dismissed her complaint because her "inability to identify the chiropractor [had] not constitute[d] a refusal to comply with the discovery order"; and the court improperly made credibility findings concerning plaintiff's inability to comply with the discovery order without conducting a plenary hearing.

A party can only appeal as a right to the Appellate Division from a final judgment of the trial court, R. 2:2-3(a); Janicky v. Pt. Bay Fuel, Inc., 396 N.J. Super. 545, 549 (App. Div. 2007). For an order to qualify as a final order for purpose of appeal, the order must "dispose of all claims against all parties." Ibid. (quoting S.N. Golden Estates, Inc. v. Cont'l Cas. Co., 317 N.J. Super. 82, 87 (App. Div. 1998)). Consequently, an order under which the trial court retains jurisdiction is not a final judgment appealable as of right. See House of Fire Christian Church v. Zoning Bd. of Adjustment of Clifton, 379 N.J. Super. 526, 531 (App. Div. 2005). "If an order is not a final judgment, a party must be granted leave to appeal by the Appellate Division." Janicky, supra, 396 N.J. Super. at 550. Here, leave to appeal was neither sought, nor obtained. R. 2:5-6.

We conclude that the appeal was improvidently taken from an interlocutory order, the trial court having expressly provided that plaintiff could file a motion to restore the complaint to the active trial list after making a good faith effort to obtain the information required by the August 15, 2008 discovery order. Accordingly, we dismiss the appeal.

 
Dismissed.

Six weeks prior to oral argument, plaintiff filed a motion to supplement the record to include copies of medical records she had obtained from Health Net of the Northeast, Inc., her health insurance provider. By separate order, we denied that motion, determining that plaintiff should present those records in the first instance to the trial court in support of her motion to reinstate the complaint to the active trial list.

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A-1917-08T2

December 9, 2009