Ott v. Guardian Protective Services, Inc.., 2011 WL 2297783 (App. Div. May 24, 2011). Final orders are immediately appealable, while interlocutory orders, which do not conclusively resolve all issues as to all parties, are interlocutory and not appealable without leave. In this case, a per curiam decision by Judges Sabatino and Alvarez, the panel found that an appeal from an order dismissing a case without prejudice for failure to provide discovery was interlocutory and, thus not immediately appealable. Both counsel in the case apparently conceded that at oral argument.
The order itself stated that the dismissal was without prejudice, with the judge below having stricken language that made the dismissal “with prejudice.” The panel stated that “[c]ase law has established that an order dismissing a complaint without prejudice under Rule 4:23-5(a) for failure to supply discovery is an interlocutory order.” Moreover, if there were any doubt, the special client notification procedures that are a prerequisite for dismissal with prejudice under Rule 4:23-5(a) had not been followed, thereby confirming the recognition that the dismissal was without prejudice and interlocutory.
The panel declined to grant leave to appeal nunc pro tunc on a plenary basis. Instead, leave was granted for the limited purpose of remanding with directions that the parties either resolve the discovery dispute or proceed in accordance with the Court Rules for an order of dismissal with prejudice.
Two final notes. First, the Appellate Division Clerk’s Office is usually very vigilant in identifying purported appeals as of right that are in fact interlocutory. That did not happen here. Since the order appealed from stated on its face that it was without prejudice, the Clerk’s Office’s oversight is a bit surprising. No one is perfect.
Second, Judges Sabatino and Alvarez produced this opinion a mere eight days after oral argument. Would that all opinions could be generated so promptly!