JEFFREY A. WICHOT v. SHERIFF RICHARD BERDNIK

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-0559-15T2

JEFFREY A. WICHOT, an
Adjudged Incapacitated Person,
by BARBARA A. WICHOT and
GREGORY P. WICHOT, Court
Appointed Co-Guardians of
the Person and Property for
JEFFREY A. WICHOT,

        Plaintiff-Appellant/
        Cross-Respondent,

v.

SHERIFF RICHARD BERDNIK,
and WILLIAM MAER,

        Defendants-Respondents,

and

CAPTAIN ROBERT WESTON,

        Defendant-Respondent/
        Cross-Appellant,
and

TOWNSHIP OF WAYNE,1

     Defendant.
_____________________________________



1
  The claims against the Township of Wayne were dismissed on
                                           April 19, 2
018 January 4, 2015, by stipulation of the parties.
          Argued March 14, 2018 – Decided April 19, 2018

          Before Judges Fuentes, Koblitz and Manahan.

          On appeal from Superior Court of New Jersey,
          Law Division, Passaic County, Docket No. L-
          3848-12.

          Shelley L. Stangler argued the cause        for
          appellant/cross-respondent (Shelly           L.
          Stangler and Judith L. Rosenthal, on        the
          briefs).

          Rajiv D. Parikh argued the cause for
          respondent/cross-appellant and respondents
          (Genova Burns, LLC, attorneys (Kathleen
          Barnett Einhorn and Rajiv D. Parikh, of
          counsel and on the briefs; Maria R. Fruci, on
          the briefs).

PER CURIAM

     Plaintiff appeals from numerous interlocutory orders entered

on various dates including: an order granting a summary judgment

motion; an order denying a motion to amend the complaint; an order

denying an extension of discovery; and an order awarding counsel

fees and costs to defendants.        Plaintiff also appeals from an

order dated August 21, 2015, denying a motion for reconsideration

of a June 30, 2015 order dismissing the complaint without prejudice

based upon failure to provide discovery and denying plaintiff's

motion to reinstate the complaint.       The August 21, 2015 order




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provided    that   the   complaint   was   dismissed   with   prejudice.2

Defendant Robert Weston cross-appeals from orders denying his

motion for summary judgment.         Having considered the record in

light of controlling substantive and procedural law, we dismiss

the appeal and the cross-appeal.

     The August 21, 2015 order dismissing the complaint with

prejudice, deemed to be a final judgment for purpose of appellate

review, was entered without authority.        The June 30, 2015 order

under reconsideration was entered pursuant to Rule 4:23-5(a)(1)

for plaintiff's failure to provide discovery.           As we recently

noted in Thabo v. Z. Transp., "Rule 4:23-5 codified a two-step

procedural paradigm that must be strictly adhered to" prior to the

sanction of dismissal of the complaint with prejudice. 
452 N.J.

Super. 359, 369 (App. Div. 2017) (citation omitted).           We added,

"These procedural requirements must be scrupulously followed and

technically complied with." Ibid. (citation omitted).

     Here, it is without dispute that the two-step process did not

occur.     In fact, defendants never moved to convert the dismissal


2
   During oral argument, counsel for defendants stated that the
June 30, 2015 order contained a technical error by its reference
to Rule 4:23-5, and that the relief sought was pursuant to another
rule. Counsel acknowledged that no motion was filed to correct
the "error." Counsel also acknowledged that no motion was filed
on behalf of defendants seeking to dismiss the complaint with
prejudice prior to the August 21, 2015 order. As such, the judge,
sua sponte, dismissed the complaint with prejudice.

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of the complaint from "without prejudice" to "with prejudice."         R.

4:23-5(a)(2).   That plaintiff moved for reconsideration did not

provide the basis for dismissal of the complaint with prejudice

nor justify the failure by defendants or the judge to comport with

the strict procedural requirements of Rule 4:23-5.

     The order of the Law Division dated August 21, 2015 dismissing

plaintiff's   complaint   with   prejudice   is   vacated.   Since   the

remaining orders under review are interlocutory, without leave to

appeal granted per Rule 2:2-3(b), the appeal and cross-appeal are

dismissed and the case is remanded to the Law Division.

     Dismissed and remanded.     We do not retain jurisdiction.




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