CLAUDE TOWNSEND v. ALLEN HILLY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

CLAUDE TOWNSEND,

Plaintiff-Appellant,

v.

ALLEN HILLY,

Defendant-Respondent.

_____________________________________

March 6, 2014

Submitted December 11, 2013 Decided

Before Judges Waugh and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1616-10.

Claude Townsend, appellant pro se.

Law Offices of Stephen E. Gertler, attorneys for respondent (Kristin J. Vizzone and Dorine C. Sirota, on the brief).

PER CURIAM

Plaintiff Claude Townsend appeals from a final order dismissing with prejudice his personal injury complaint against defendant Alan Hilly for failure to comply with discovery pursuant to Rule 4:23-5(a)(2). Because the record reveals no attempt by defendant's counsel to comply with the procedural requirements mandated by the rule, we reverse. A & M Farm & Garden Ctr. v. Am. Sprinkler Mech., L.L.C., 423 N.J. Super. 528, 535, 539 (App. Div. 2012).

Plaintiff has represented himself in this case. When he objected to a medical examination by defendant's expert because he had already submitted to one in an earlier action between these same parties, defendant obtained an order pursuant to Rule 4:19 compelling his attendance. When plaintiff failed to appear for the examination as ordered, defendant moved to dismiss his complaint without prejudice pursuant to Rule 4:23-5(a). The judge denied that motion, but extended discovery and set a new date by which the defense examination was to be completed. Plaintiff signed the certified mail receipt accepting a copy of that order and a letter establishing a new date for the examination.

When plaintiff failed to appear for the rescheduled examination, defendant made a motion to dismiss the complaint without prejudice, which was granted. When plaintiff allowed sixty days to pass without moving to reinstate the action, defendant moved for dismissal with prejudice pursuant to Rule 4:23-5(a)(2).

Defense counsel, however, did not certify that she served plaintiff with the notices in the forms prescribed by Appendices II-A and B to the rules, advising him that the grant of the motion could forever preclude restoration of the complaint. At defendant's request, the motion was listed for oral argument. Plaintiff neither opposed the motion nor appeared for oral argument. Defendant's counsel appeared, but the judge apparently made no inquiry as to counsel's failure to file the certification mandated by Rule 4:23-5(a)(2), that she had served plaintiff with the required notices. The judge thereafter entered the order dismissing plaintiff's complaint with prejudice. This appeal followed.

A plaintiff's failure to submit to a medical examination pursuant to Rule 4:19, subjects his complaint to dismissal under the two-step procedure of Rule 4:23-5. Kwiatkowski v. Gruber, 390 N.J. Super. 235, 236 (App. Div. 2007). The judge's order dismissing plaintiff's complaint without prejudice when he failed to appear for the rescheduled examination was thus appropriate under the rules. But a defendant obtaining an order dismissing a self-represented plaintiff's complaint without prejudice is required to serve the plaintiff with a copy of the order along with the notice prescribed in Appendix II-A of the rules. R. 4:23-5(a)(1). In order to convert the dismissal to one with prejudice, Rule 4:23-5(a)(2) requires that the defendant shall "file and serve an affidavit reciting that the [plaintiff] was previously served as required by subparagraph (a)(1) and has been served with an additional notification, in the form prescribed by Appendix II-B, of the pendency of the motion to dismiss . . . with prejudice." Ibid.; see also Pressler, Current N.J. Court Rules, comment 1.3 on R. 4:23-5(a)(2) (2014).

In A & M Farm & Garden Center, we held that when a court considers a motion to dismiss a complaint with prejudice, and there is nothing to show that the plaintiff has received notice of its exposure to the ultimate sanction, the court must take some action to obtain compliance with the requirements of the rule before entering an order of dismissal with prejudice. 423 N.J. Super. at 539. The rule's two-step procedure is designed to compel the discovery rather than to dismiss the complaint. Adedoyin v. Arc of Morris Cnty. Chapter, Inc., 325 N.J. Super. 173, 180 (App. Div. 1999).

"[A]chievement of the salutary scheme of the . . . rule requires meticulous attention to its critical prescriptions, and particularly to those provisions which are intended to afford a measure of protection to the party who is faced with the ultimate litigation disaster of termination of his cause." Zimmerman v. United Servs. Auto. Ass'n, 260 N.J. Super. 368, 376-77 (App. Div. 1992); accord Adedoyin, supra, 325 N.J. Super. at 180 ("[A]chievement of the rule's goals requires meticulous attention to its prescriptions."). Because defendant provided no proof to the court that he had provided the notices to plaintiff required by the rule, the court was without any basis on which to make "an informed decision as to whether the rights of the litigant have been adequately protected." A & M Farm & Garden Ctr., supra, 423 N.J. Super. at 539. Accordingly, we reverse the order dismissing the complaint with prejudice and remand for further proceedings.

The matter remains dismissed without prejudice. Defendant's counsel is to provide plaintiff with a copy of this opinion and the notice required by Rule 4:23-5(a)(1). The notice must advise plaintiff that the complaint remains dismissed without prejudice, that he must contact defendant's counsel to schedule another medical examination and the consequences for failure to act. Defense counsel is to cooperate in rescheduling the examination in a reasonable manner. After the examination has been promptly conducted, plaintiff may then move for reinstatement. See Kwiatkowski, supra, 390 N.J. Super. at 237. Should plaintiff fail to act or not attend the rescheduled examination, defendant may move for dismissal with prejudice in accordance with Rule 4:23-5(a)(2).

Reversed and remanded for further proceedings in accordance with this opinion. We do not retain jurisdiction.