NOT FOR PUBLICATION WITHOUT THE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-2426-15T4
IN THE MATTER OF
VALENTINA ASTAFUROVA, Deceased.
____________________________________
Submitted April 25, 2017 – Decided December 5, 2017
Before Judges Fisher and Leone.
On appeal from Superior Court of New Jersey,
Chancery Division, Bergen County, Docket No.
P-000035-15.
Yury Astafurov, appellant pro se.
Respondents Igor Solonkovich and Nikolay
Astafurov have not filed a brief.
The opinion of the court was delivered by
LEONE, J.A.D.
Appellant Yury Astafurov appeals the January 13, 2016
dismissal of his complaint without prejudice.
I.
On December 15, 2014, the Bergen County Surrogate's Court
issued an order certifying decedent Valentina Astafurova's will,
and letters testamentary to the executors, respondents Igor
Solonkovich and Nikolay Astafurov. On January 30, 2015, appellant,
the son of Valentina and Nikolay, filed a complaint in the Chancery
Division to challenge the validity of the will.
Appellant alleges that a hearing was scheduled on June 19,
2015, but he was unable to obtain a U.S. visa to come to the United
States for the hearing, and the hearing was postponed to August
14, 2015, September 11, 2015, October 22, 2015, and finally January
25, 2016.
The trial court filed a letter order on January 13, 2016.
The order related that appellant's January 11, 2016 fax stated he
would be unable to participate in the trial scheduled for January
25, "owing to his continuing inability to secure a US visa to come
to the United States for the trial, or to prepare for a trial."
The court ruled simply: "Accordingly, the trial is cancelled and
the Complaint of Mr. Yury Astafurov is dismissed, without prejudice
and without costs."
Appellant filed a timely appeal. Respondents have not filed
a brief. The issue before us is "whether the trial court abused
its discretion in selecting that [dismissal] sanction." See
Gonzalez v. Safe & Sound Sec. Corp., 185 N.J. 100, 115 (2005). We
must hew to that standard of review.
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II.
It is unclear what rule the trial court relied upon to dismiss
appellant's complaint. The rule applicable to "Failure to Appear"
at trial is Rule 1:2-4(a), which states:
If without just excuse or because of failure
to give reasonable attention to the matter,
no appearance is made on behalf of a party
. . . on the day of trial, or if an application
is made for an adjournment, the court may
order any one or more of the following: (a)
the payment . . . of costs . . . ; (b) the
payment . . . of reasonable expenses,
including attorney's fees . . . ; (c) the
dismissal of the complaint . . .; or (d) such
other action as it deems appropriate.
"Generally, such dismissals are without prejudice unless the
court for good cause orders otherwise." Connors v. Sexton Studios,
Inc., 270 N.J. Super. 390, 393 (App. Div. 1994). "[T]he dismissal
remedy, especially . . . a dismissal with prejudice, should not
be invoked except in the case of egregious conduct on the part of
a plaintiff, and should generally not be employed where a lesser
sanction will suffice." Ibid. "[N]ot only are procedural
dismissals with prejudice generally unwarranted in situations
[where a plaintiff fails to appear for trial], but procedural
dismissals themselves are not favored." Id. at 395.
The trial court's order appeared to accept appellant's
assertion that he tried and failed to get the necessary visa to
appear for trial. The court did not find appellant's failure was
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"without just excuse of because of failure to give reasonable
attention to the matter." R. 1:2-4(a). Even if such a finding
were warranted, "[o]rdinarily, one or more of the lesser sanctions
of the rule would apply, namely, the payment of defendant's costs,
attorney's fees and/or out-of-pocket costs for the first
appearance." Ibid. Without such a finding, no sanction could be
imposed under Rule 1:2-4. Connors, supra, 270 N.J. Super. at 393.
Moreover, it does not appear such a finding would be
warranted. It is undisputed that appellant cannot legally enter
the United States without a visa, that he timely applied for a
visa, and that the United States government denied a visa.
Faced with that situation, the trial court should not have
immediately dismissed the complaint. In Brunson v. Affinity Fed.
Credit Union, 199 N.J. 381 (2009), the plaintiff, a necessary
witness subpoenaed to appear at trial, could not appear for trial
because he was in federal prison in Oklahoma and he could not
compel the United States to allow him to attend trial. Id. at
404-05. The Supreme Court reversed the trial court's "'dismissal
of the case,'" holding that "when confronted with a plaintiff who
fails to appear as a witness, trial courts first must explore less
drastic remedies before invoking the ultimate sanction of
dismissal." Id. at 385, 404.
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There are reasoned, intermediate steps
between the outright dismissal of the
complaint and allowing plaintiff's claims to
go forward in his absence that should have
been explored. For example, the rules
governing pre-trial depositions could have
been invoked to take plaintiff's deposition
de bene esse, that is, "in anticipation of a
future need[.]" Even outside the confines of
a pending case, procedures exist to preserve
testimony when needed. See R. 4:11-3
(providing that Rules "do not limit the
court's power to entertain an action to
perpetuate testimony or to enter an order in
any pending action for the taking of a
deposition to perpetuate testimony").
[Id. at 405-06 (other citations omitted).]
Here, the trial court similarly failed to explore the Rules'
"reasonable alternatives that should be explored when a party is
unable" to attend trial. Id. at 406. "Until courts have exhausted
means of performing their shepherding function which do not
terminate or deeply affect the outcome of a case, they ought not
to bar a litigant's way to the courtroom." Connors, supra, 270
N.J. Super. at 395 (quoting Audobon Volunteer Fire Co. No. 1 v.
Church Constr. Co., Inc., 206 N.J. Super. 405, 406-407 (App. Div.
1986)). Accordingly, we reverse the dismissal of the complaint
and remand for further proceedings.
Appellant requests other relief. However, such relief is not
properly before us.
Reversed and remanded. We do not retain jurisdiction.
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