NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3618-15T3
DOROTHY GONZALEZ,
Plaintiff-Appellant,
v.
MARK MICHALSKI and LAURA
MICHALSKI,
Defendants-Respondents.
______________________________
Submitted May 15, 2017 – Decided June 7, 2017
Before Judges Nugent and Geiger.
On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Docket No. L-
872-14.
Michael A. Mark, attorney for appellant.
Leonard S. Miller, attorney for respondents.
PER CURIAM
Plaintiff Dorothy Gonzalez appeals from a December 2, 2015
order denying her motion to amend her complaint, and a March 31,
2016 order dismissing her complaint with prejudice. We reverse.
Plaintiff and defendants, Mark Michalski and Laura Michalski
were formerly next-door neighbors. The complaint alleges that
defendant committed numerous petty disorderly persons acts of
harassment in violation of N.J.S.A. 2C:33-4 by: (1) shining a
strong spotlight into her window; (2) erecting a fence on her
property in violation of local law; (3) placing dog feces on their
common property line; (4) telling plaintiff, "I'll burn your house
down" after she installed video surveillance cameras on her house;
and (5) several other acts. Based on this alleged conduct,
plaintiff sought compensatory damages, punitive damages, and
attorneys' fees for defendants' harassment.
On the morning of the trial date, defendants hand-served a
motion "in limine" to dismiss plaintiff's complaint with prejudice
for failure to state a claim upon which relief may be granted.
After hearing oral argument, the trial judge issued a written
opinion granting the motion and dismissing the complaint with
prejudice.
The trial court should not have entertained defendant's
dispositive motion on the day of trial. Seoung Ouk Cho v. Trinitas
Reg'l Med. Ctr., 443 N.J. Super. 461, 472 (App. Div. 2015), certif.
denied, 224 N.J. 529 (2016). In fact, this was the sixth trial
date. In Cho, we held that, "absent extraordinary circumstances
or the opposing party's consent, the consideration of an untimely
summary judgment motion at trial and resulting dismissal of a
complaint deprives a plaintiff of due process of law." Id. at
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475. The same analysis applies to an untimely motion under Rule
4:6-2(e).
Defendants contend that we should affirm the dismissal of the
complaint because plaintiff's claims lack merit. "[W]e utterly
reject the argument that the dismissal should be affirmed, despite
the violation of [court] rules, because plaintiffs suffered no
prejudice in the dismissal of claims that lack merit. The right
to due process is not limited to worthy causes." Id. at 474-75.
We reverse the dismissal of plaintiff's complaint and remand
the matter for trial. The trial judge can address the sufficiency
of plaintiff's proofs at the close of plaintiff's case.
Plaintiff's complaint alleges a cause of action for
harassment. Eight months after filing the complaint, plaintiff
sought leave to amend to add a claim for intentional infliction
of emotional distress. The motion record demonstrates that no new
facts were alleged, and no new parties were added in the proposed
amended complaint. Plaintiff's motion was unopposed. The trial
court denied the motion because there had been at least one prior
trial date, and granting leave to amend "would unduly delay
resolution of this matter." The record demonstrates that there
were numerous unrelated trial delays after the motion was denied.
Nothing in the record indicates the amendment would have
created the need for additional discovery. Consequently, the
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trial court's conclusion that permitting the amendment would have
delayed the trial appears unfounded. Moreover, defendants did not
contend that they would prejudiced by the amendment.
"Rule 4:9-1 requires that motions for leave to amend be
granted liberally." Kernan v. One Wash. Park Urban Renewal
Assocs., 154 N.J. 437, 456 (1998). Motions for leave to amend
"should generally be granted even if the ultimate merits of the
amendment are uncertain." G & W, Inc. v. Borough of E. Rutherford,
280 N.J. Super. 507, 516 (App. Div. 1995); see also Interchange
State Bank v. Rinaldi, 303 N.J. Super. 239, 256 (App. Div. 1997)
(motions for leave to amend should be liberally granted without
consideration of the ultimate merits of the amendment). The "broad
power of amendment should be liberally exercised at any stage of
the proceedings, including on remand after appeal, unless undue
prejudice would result." Pressler & Verniero, Current N.J. Court
Rules, comment 2.1 on R. 4:9-1 (2017).
Nevertheless, "the granting of a motion to file an amended
complaint always rests in the court's sound discretion." Kernan,
supra, 154 N.J. at 457. While trial courts are free to deny leave
to amend when the newly asserted claim is not sustainable as a
matter of law, Interchange State Bank, supra, 303 N.J. Super. at
256-57, the trial court here did not engage in that analysis when
it denied leave to amend.
4 A-3618-15T3
The trial court abused its discretion by denying plaintiff's
unopposed motion to amend the complaint. On remand, plaintiff
shall be permitted to amend her complaint to add the claim for
intentional infliction for emotional distress.
Reversed and remanded. We do not retain jurisdiction.
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