10-08-08
A-6025-06T1
We held that plaintiffs were not required to establish
"good cause" for reinstatement of their complaint, which was
dismissed without prejudice for failure to permit defendants to
inspect their residence. Rule 4:23-5(a)(1) expressly permits a
party whose complaint has been dismissed without prejudice to
move, on notice, to vacate the dismissal at any time before the
entry of an order dismissing the complaint with prejudice. Because defendants never moved to dismiss the complaint with prejudice under Rule 4:23-5(a)(2), plaintiffs' complaint remained dismissed without prejudice. Consequently, when
plaintiffs moved to reinstate their complaint nearly one year
later, the court's inquiry was limited to determining whether
(1) the discovery violation resulting in the dismissal had been
cured, (2) the restoration fee had been paid, and (3) what, if
any, sanctions, counsel fees and costs, or both, should be
imposed as a condition of restoration.
