New Jersey Court Rule 2:2-3 provides that parties may appeal as of right to the Appellate Division from final judgments that dispose of all claims against all parties.  Rule 2:2-3(a) also identifies certain types of orders, e.g., material witness orders, that, although technically interlocutory, are considered final judgments for appellate purposes.  All other orders are not final judgments and the Appellate Division will only consider such interlocutory orders upon leave granted pursuant to Rule 2:5-6.  Those basic appellate principles were recently re-affirmed in Nurse v. The City of Atlantic City Government, No. A-4551-09 (App. Div. July 19, 2011).

In his complaint, the plaintiff asserted various common law and civil rights claims against the defendants, alleging that they assisted in wrongfully evicting him from his apartment.  The defendants served interrogatories on the plaintiff, and they claim he did not respond to them.  Thus, pursuant to Rule 4:23-5(a), the defendants filed a motion to dismiss his complaint without prejudice.  The plaintiff did not oppose the motion and the court granted it, thereby dismissing the complaint without prejudice.

The plaintiff appealed that dismissal and argued that he provided discovery responses.  He further challenged the dismissal of his complaint on other grounds.  However, the Appellate Division did not address the merits of the plaintiff’s appeal but instead dismissed it on jurisdictional grounds.

The Appellate Division explained that the order dismissing the plaintiff’s complaint without prejudice was not a final order.  Moreover, the court pointed out that “[a]ppeals to the Appellate Division are from final judgments unless leave to appeal has been granted.  …  Because the order was not a final disposition of the case and leave to appeal was never sought, we dismiss the appeal without prejudice.”  In addition, the Appellate Division observed that if the plaintiff had in fact provided the disputed discovery to the defendants, he could file a motion to reinstate his complaint; if he had not done so, however, the defendants could then move to dismiss the plaintiff’s complaint with prejudice pursuant to Rule 4:23-5(a)(2).