Kizima v. Bartone, 2010 WL 4721201 (App. Div. Nov. 23, 2010). This brief decision recounts that the plaintiffs had failed to respond to discovery, and the trial court dismissed their case without prejudice as a result. The plaintiffs then sought to vacate the dismissal even though they still had not provided the requested discovery. Acting without oral argument, the court denied that motion and dismissed the case with prejudice. The Appellate Division reversed because R. 4:23-5(a)(2) requires that counsel for the party against whom dismissal with prejudice is sought must be present before that relief can be granted.
The defendants had argued that plaintiffs’ counsel’s absence was immaterial because plaintiffs and their counsel knew of the motion and still had not provided the required discovery. The defendants recited “a long litany of instances in which plaintiffs or their counsel were uncooperative or had needlessly caused delay.” Despite all that, the court reversed the dismissal with prejudice. The Court Rules are the Court Rules, no matter how unappealing a party’s conduct is.