COLONIAL SPECIALTY FOODS, INC., VS COUNTY OF CAPE MAY, ET AL

(NOTE: This decision was approved by the court for publication.)
This case can also be found at 317 N.J. Super. 207.

NOT FOR PUBLICATION WITHOUT THE
 
APPROVAL OF THE APPELLATE DIVISION
 

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-5901-97T1

COLONIAL SPECIALTY FOODS, INC., a
Corporation of New Jersey, d/b/a
Haverford Food Corp.,

Plaintiff-Respondent,

v.

COUNTY OF CAPE MAY,

Defendant/Third-Party
Plaintiff-Appellant,

v.

AULFFO PAINTING, INC. and
CIGNA PROPERTY AND CASUALTY COMPANIES,

Third-Party Defendants-
Respondents,

and

ATLANTIC FIDELITY & SURETY
COMPANY, STAR BRITE CONSTRUCTION
COMPANY, INC., AMERICAN BANKERS
INSURANCE COMPANY OF FLORIDA,
B & M CONSTRUCTION AND RESTORATION, INC.,
NATIONAL UNION FIRE INSURANCE COMPANY,
and NORTH RIVER INSURANCE COMPANY,

Third-Party Defendants,

and

AULFFO PAINTING, INC. and
ATLANTIC FIDELITY & SURETY COMPANY,

Third-Party Defendants/
Fourth-Party Plaintiffs,
 
v.

TRIPLE G. COATINGS, INC.,
 
Fourth-Party Defendant-
Respondent,

and

STAR BRITE CONSTRUCTION COMPANY, INC.,
and AMERICAN BANKERS INSURANCE COMPANY OF
FLORIDA,

Third-Party Defendants/
Fifth-Party Plaintiffs,

v.

B & M CONSTRUCTION AND RESTORATION, INC.,

Fifth-Party Defendant.

_____________________________________________

Argued: December 8, 1998 Decided: January 8, 1999

Before Judges Long, Wefing and Carchman.

On appeal from the Superior Court of New Jersey, Law Division, Cape May County.

Robert S. Sandman argued the cause for appellant County of Cape May (Hankin, Sandson, Sandman, Bradley & Palladino, attorneys; Mr. Sandman, on the brief).

James A. Waldron argued the cause for respondent Colonial Specialty Foods, Inc. (Mr. Waldron, attorney; Mr. Waldron and Michael J. Donohue, on the brief).

James T. Dugan appeared on behalf of respondent Aulffo Painting, Inc. (Mr. Dugan and Joseph D. O'Neill, attorneys; Mr. Dugan, on the brief).

William C. Mills, IV, appeared on behalf of respondent CIGNA Property & Casualty Companies (Cooper, Perskie, April, Niedelman, Wagenheim & Levenson, attorneys; Mr. Mills, on the brief).

Nicholas Kierniesky appeared on behalf of respondent Triple G. Coatings, Inc. (Jay H. Greenblatt & Assoicates, attorneys).

The opinion of the court was delivered by

WEFING, J.A.D.

County of Cape May (Cape May) appeals, pursuant to leave granted, from an order entered by the trial court denying its motion to dismiss plaintiff's complaint with prejudice under R. 4:23-5(a)(2). We affirm.
Because of the narrow issue before us, it is unnecessary to set forth at length the nature of the underlying disputes between the parties. We note merely that plaintiff Colonial Specialty Foods, Inc. (Colonial) leased from Cape May a building that it intended to use for its food processing business. Colonial contended that the building was unfit for this use and that the building's condition led to the loss of its business. When plaintiff ceased paying rent, Cape May instituted a summary dispossess proceeding that was transferred from the Special Civil Part to the Law Division under N.J.S.A. 2A:18-60.
Additional parties were joined and the matter was assigned to case management. It is clear that the discovery process has been a difficult one, with each side attributing fault to the other. It is immaterial to our analysis of the matter which version is correct.
The trial court has entered six case management orders, from June 1, 1994 through June 30, 1997. This last order directed plaintiff to answer certain interrogatories concerning its experts and to respond to Cape May's request for document production by July 13, 1997. When plaintiff did not comply with these deadlines, Cape May filed a motion to dismiss the complaint. On September 12, 1997, the trial court granted Cape May's motion but modified Cape May's proposed order. The trial court struck the "with prejudice" portion of the order and added the provision that the dismissal was for "plaintiff's failure to comply with the Court's Case Management Order." Under R. 4:37-2(a), that dismissal was without prejudice.
Approximately three months later, Cape May filed another motion in which it sought to convert the September 12, 1997 dismissal into a dismissal with prejudice. Plaintiff opposed the motion and sought to reinstate its complaint. Plaintiff's counsel submitted a certification in which he noted various problems he had experienced that had contributed to the delay in discovery. These included serious health problems suffered by both his wife and himself, and the disruption to his practice attendant to the unavoidable relocation of his law office. The trial court denied Cape May's motion and restored plaintiff's complaint. This appeal followed.
We are satisfied that the trial court correctly interpreted R. 4:23-5(a)(2). One party cannot obtain a dismissal with prejudice under that rule unless an earlier dismissal without prejudice was entered under R. 4:23-5(a)(1). Cape May argues that, because R. 4:23-5(a)(2) does not specifically refer to R. 4:23-5(a)(1), a trial court may dismiss a matter with prejudice under R. 4:23-5(a)(2) when there has been an earlier dismissal without prejudice for failure to supply discovery. Furthermore, Cape May stresses that the earlier dismissal was for failure to answer interrogatories and therefore contends that the order of September 12, 1997 should be treated as the functional equivalent of an order entered under R. 4:23-5. We are entirely unpersuaded by this argument. Adopting Cape May's argument would deprive a party of the procedural safeguards incorporated throughout R. 4:23-5, and overlooks the rule's integrated structure and purpose. Subsection (a)(2) of the rule exists in the context of a rule that provides for dismissal for failure to answer interrogatories; it does not exist independently to allow a litigant to convert a dismissal without prejudice, obtained under a rule other than R. 4:23-5, into a dismissal with prejudice.
The underpinnings of the rule support the trial court's conclusion. The "main objective [of the rule] is to compel the answers [to interrogatories] rather than to dismiss the case . . . ." Pressler, Current N.J. Court Rules, comment of R. 4:23-5 (quoting 1990 Report of the Committee on Civil Practice, 125 N.J.L.J. Index page 421). In Zimmerman v. United States Automobile Assoc., 260 N.J. Super. 368, 376 (App. Div. 1992), Judge Pressler wrote that "achievement of the salutary scheme of the revised rule requires meticulous attention to its critical prescriptions, and particularly to those provisions [that] are intended to afford a measure of protection to the party who is faced with the ultimate litigation disaster of termination of his cause." The approach advocated by Cape May would lessen the need for such "meticulous attention."
Because we are satisfied that Cape May was not entitled to relief under R. 4:23-5(a)(2), there is no basis for its further argument that plaintiff was required to establish the existence of extraordinary circumstances before its complaint could be restored.
Affirmed.

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