EFRAHIM YILMAZ et al. v. YU JIE CONSTRUCTION CO. and JIANGUO LI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6336-04T16336-04T1

EFRAHIM YILMAZ and

ADEM YUKSEL,

Plaintiffs-Appellants,

v.

YU JIE CONSTRUCTION CO. and

JIANGUO LI,

Defendants-Respondents,

and

COUNTRY-WIDE INSURANCE

COMPANY,

Defendant.

__________________________________________________

 

Argued May 24, 2006 - Decided June 29, 2006

Before Judges Stern and Parker.

On appeal from the Superior Court of New

Jersey, Law Division, Bergen County,

Docket No. L-10557-04.

Aram Ingilian argued the cause for appellants

(Bakmazian & Associates, attorneys; Mr. Ingilian,

on the brief).

Randi S. Greenberg argued the cause for respondents

(Guberman & Stern, attorneys; Barry Guberman,

of counsel; Ms. Greenberg, on the brief).

PER CURIAM

Plaintiffs appeal from an order of June 29, 2005, dismissing their complaint, "with prejudice," for failure to file "a motion to vacate the previous dismissal order" with an attestation "to plaintiffs' compliance with discovery" or a showing of "special circumstances." Plaintiffs argue that "the lower court abused its discretion when it . . . failed to relax or dispense with R. 4:23-5(a)(2)" and dismissed the complaint. They argue dismissal was inappropriate "since plaintiffs served defendants with fully responsive answers and responses to their discovery requests before the return date[] of defendants' . . . motion to dismiss plaintiffs'[] complaint . . . pursuant to R. 4:23-5(a)(2), and before the entry of an order of dismissal

. . . with prejudice."

The motion to dismiss, based on plaintiffs' failure to provide discovery, was filed on January 11, 2005 and was carried from the February 4 return date to February 18, 2005, at which time the motion to dismiss was granted "without prejudice." On June 3, 2005, defendants filed their motion to dismiss with prejudice. It was made returnable on Friday, June 24, 2005. It is undisputed that on Thursday, June 23, 2005, plaintiffs' counsel faxed the following letter to the motion judge and defendants' attorney:

We represent Plaintiffs in the above-referenced suit. Defendants have filed a Notice of Motion, returnable tomorrow, to be heard by Your Honor. Although our office has not filed an Opposition to said Motion, please accept this correspondence as Plaintiffs'[] request that Your Honor deny the same.

Defendants'[] Motion seeks to dismiss Plaintiffs'[] Complaint with Prejudice for failure to provide discovery. I am faxing Plaintiffs'[] responses to said discovery. Plaintiffs respectfully request that, in the interest of justice, and since they have provided responses to Defendants'[] discovery requests, Your Honor deny Defendants'[] Motion, thereby allowing Plaintiffs'[] case to proceed. Plaintiffs will file a Motion to reinstate their case.

The matter was not carried, and the motion to dismiss with prejudice was granted on June 29, 2005, without an appearance by either party. Plaintiffs neither moved to vacate the dismissal, nor certified that the discovery was fully provided, or that there were other "exceptional circumstances" warranting denial of the dismissal. See R. 4:23-5(a)(2). However, in the period between June 23 and entry of the order six days later, defendants filed nothing to dispute the claim that all discovery was provided, and the court did not find otherwise; nor did it respond to or deny the request for adjournment to permit compliance with the Rule. Under the circumstances, we conclude that the dismissal "with prejudice" must be reconsidered after the court determines whether the discovery was, in fact, fully provided. Plaintiffs shall be granted ten days from the filing of this order to fully comply with the requirements of R. 4:23-5(a)(2). Cf. Abtrax Pharmaceuticals v. Elkins-Sinn, Inc., 139 N.J. 499, 513-14 (1995). See also Gonzalez v. Safe & Sound Sec. Corp., 185 N.J. 100, 115-16 (2005).

The order dismissing the complaint "with prejudice" is reversed, and the matter is remanded with further proceedings consistent with this opinion. No costs.

 

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A-6336-04T1

June 29, 2006