Cole Schotz Prevails Before The Appellate Division

January 29, 2016Attorneys: Joseph Barbiere and Jason R. Melzer

On January 29, 2016, the Appellate Division issued a published decision, In the Matter of the Adoption of a Child by M.E.B. and K.N., Docket No. A-3486-14T4, reaffirming the procedural due process to which all litigants are entitled before a trial court may appropriately dismiss their claims with prejudice. Writing for the Court, the Honorable Marie E. Lihotz, P.J.A.D. opened by stating: “We conclude plaintiffs’ fundamental due process rights were trammeled as they were denied an opportunity to be heard prior to the dismissal of their complaint, with prejudice.”

On February 20, 2015, plaintiffs M.E.B. and K. N. filed a verified complaint for adoption of their grandchild, naming the child’s parents, S.D.G. and R.C.N.-B., as defendants. An order for preliminary hearing was entered on March 6, 2015, placing the child in plaintiffs’ temporary custody, and scheduling a hearing for April 17, 2015. Upon receipt of the March 6 order, S.D.G. filed an ex parte order to show cause accompanied by certifications refuting the allegations in the complaint. The Trial Court held an ex parte proceeding on March 19, 2015, during which the judge heard testimony from both defendants and determined their testimony was credible. Based solely on that testimony, the Trial Court dismissed the complaint with prejudice, finding that plaintiffs’ complaint contained misrepresentations and was legally insufficient.

Plaintiffs appealed, arguing they were denied their fundamental right to due process, guaranteed by the Fourteenth Amendment to the United States Constitution, and that plaintiffs should have been afforded notice and an opportunity to cross-examine defendants before the Trial Court dismissed their complaint, ex parte, with prejudice. The Appellate Division agreed with plaintiffs, stating: “. . . we cannot conceive of a circumstance permitting the ex parte review and dismissal of an adverse party’s pleading without notice to that party or allowing the party to appear and defend his or her position.” The Court concluded that litigants must be afforded an opportunity to be heard regarding the sufficiency of their claims before they can be dismissed and that the Trial Court’s dismissal of the complaint could not be upheld “because it was premised upon defendants’ unchallenged testimony, offered in an ex parte hearing.”

Attorneys Joseph Barbiere, Esq. Jason R. Melzer, Esq., and Nicole G. McDonough, Esq. of Cole Schotz represented plaintiffs M.E.B. and K.N. before the Appellate Division together with counsel who filed the initial complaint, Debra E. Guston, Esq. of Guston & Guston LLP.


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