SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-001317-15T1

CITIBANK, NA,

 Plaintiff,

v.

SHERRY DEMETRO,

Defendant/Third-Party 

Plaintiff-Appellant,

v.

SLATER, TENAGLIA, FRITZ & HUNT, PA,

Third-Party DefendantRespondent.

_____________________________________

Argued September 12, 2017 — Decided

Before Judges Hoffman and Mayer.

On appeal from Superior Court of New Jersey,

Law Division, Special Civil Part, Cape May 

County, Docket No. DC-000268-15.

Christopher Bruschi argued the cause for 

appellant.

Robert B. Hille argued the cause for 

respondent (McElroy, Deutsch, Mulvaney & 

Carpenter, LLP, attorneys; Mr. Hille, of 

NOT FOR PUBLICATION WITHOUT THE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.

October 2, 2017
2 A-1317-15T1

counsel; John W. Kaveney and Brooks E. Doyne, 

on the brief).

PER CURIAM

Defendant/third-party plaintiff Sherry Demetro appeals from 

orders entered by the Special Civil Part judge on September 17, 

2015, and September 18, 2015, dismissing with prejudice her claims 

against respondent/third-party defendant the Law Firm of Slater, 

Tenaglia, Fritz & Hunt, P.A. (Slater Tenaglia). Demetro contends 

dismissal of her third-party complaint against Slater Tenaglia was 

erroneous for the following reasons: there were genuinely disputed 

material facts; Slater Tenaglia failed to provide discovery 

responses; the motion judge relied on matters outside the pleading;

and leave to amend her pleading should have been granted prior to 

dismissal. We agree and, therefore, reverse and remand this case 

to the trial court.

On March 3, 2015, Citibank, N.A. filed a debt collection case

against Demetro in the Special Civil Part.

1 Demetro filed a thirdparty complaint against Slater Tenaglia alleging it failed to 

cease collection efforts in violation of the Fair Debt Collection 

Practices Act, 15 U.S.C.A. § 1692 (FDCPA). 

On December 29, 2014, Slater Tenaglia sent a debt collection 

letter to Demetro on behalf of Citibank, N.A. On January 12, 

 

1 Demetro resolved the collection matter with Citibank, N.A.
3 A-1317-15T1

2015, Demetro contested the debt, demanded verification of the 

debt and instructed Slater Tenaglia to cease collection efforts 

until it mailed the debt verification in accordance with 15 

U.S.C.A. § 1692(g). On January 20, 2015, Slater Tenaglia received 

documents purporting to verify Demetro's debt.2 However, Slater 

Tenaglia did not mail the debt verification to Demetro until March 

3, 2015, or later. Slater Tenaglia electronically filed the 

collection complaint against Demetro at 4:26 p.m. on March 3, 

2015. 

Demetro alleges that the collection complaint was drafted by 

an employee of Slater Tenaglia on February 27, 2015. She argues 

that preparation of the draft complaint by Slater Tenaglia 

constituted continuing efforts to collect the debt in violation 

of the FDCPA. Demetro also disputes the mailing date of the 

verification. 

Demetro sought discovery to prove her allegation that Slater 

Tenaglia filed the collection action prior to mailing the debt 

verification in violation of the FDCPA. Through discovery 

 

2 Counsel for Slater Tenaglia provided this information at oral 

argument in response to a question from the panel.
4 A-1317-15T1

requests, Demetro sought Slater Tenaglia's collection file.3 

Slater Tenaglia did not respond to Demetro's discovery requests.

The parties disputed the date that Slater Tenaglia mailed the 

debt verification to Demetro. Slater Tenaglia claimed it mailed 

the debt verification to Demetro on March 2, 2015. Slater 

Tenaglia's answer to the third-party complaint stated the debt 

verification was mailed on March 2, 2015. However, Jasmine Garcia, 

a legal assistant with Slater Tenaglia, submitted a certification 

dated June 15, 2015, stating March 3, 2015 as the date Slater 

Tenaglia mailed the debt verification to Demetro. Garcia's 

certification explained the procedure for handling outgoing mail 

at Slater Tenaglia and indicated that she deposited the envelope,

with postage, in the firm's mail room on March 3, 2015. According 

to Garcia, outgoing mail from Slater Tenaglia "is collected in 

bins located in the office mail room. A staff member transports 

the mail once or twice a day to a mail drop box located in the 

Mack Cali Centre Complex." Garcia never confirmed her deposit 

of the envelope into a United States Post Office mail receptacle 

prior to 4:26 p.m. on March 3 (the time/date the collection 

 

3 We recognize that discovery is limited in Special Civil Part 

actions due to the expedited nature of the cases. See R. 6:4. 

However, Rule 6:4-3 permits service of interrogatories, admissions 

and requests for production of documents in Special Civil Part 

actions. Depositions in the Special Civil Part are allowed but

require a court order. See R. 6:4-4. 
5 A-1317-15T1

complaint was electronically filed with the Special Civil Part). 

Nor did any other Slater Tenaglia employee personally certify that 

the debt verification was deposited into a United States Post 

Office mailbox prior to the filing of the collection action.

Demetro contends that the factual dispute as to the mailing of the 

debt verification was central to her claim against Slater Tenaglia,

and therefore, dismissal of the third-party complaint prior to the 

exchange of discovery was improper. 

We apply a de novo standard of review to a trial court's 

order dismissing a complaint under Rule 4:6-2(e). See Stop & Shop 

Supermarket Co. v. County of Bergen, 450 N.J. Super. 286, 290 

(App. Div. 2017). Under the rule, we owe no deference to the

motion judge's conclusions. Rezem Family Assocs., LP v. Borough

of Millstone, 423 N.J. Super. 103, 114 (App. Div.), certif. denied, 

208 N.J. 368 (2011). "[O]ur inquiry is limited to examining the 

legal sufficiency of the facts alleged on the face of the 

complaint." Printing Mart-Morristown v. Sharp Elecs. Corp., 116 

N.J. 739, 746 (1989). "A pleading should be dismissed if it states 

no basis for relief and discovery would not provide one." Rezem 

Family Assocs., LP, supra, 423 N.J. Super. at 113 (citing Camden 

Cty. Energy Recovery Assoc., L.P. v. N.J. Dep't of Envtl. Prot., 

320 N.J. Super. 59, 64 (App. Div. 1999)). 
6 A-1317-15T1

The standard "requires an assumption that the allegations of 

the pleading are true and affords the pleader all reasonable 

factual inferences." Seidenberg v. Summit Bank, 348 N.J. Super.

243, 249-50 (App. Div. 2002). The court must search the pleading 

"in depth and with liberality to determine whether a cause of 

action can be gleaned even from an obscure statement." Id. at 

250. To avoid a dismissal for failure to state a claim, a plaintiff 

is not required "to prove the case but only to make allegations, 

which, if proven, would constitute a valid cause of action." 

Sickles v. Cabot Corp., 379 N.J. Super. 100, 106 (App. Div.) 

(quoting Leon v. Rite Aid Corp., 340 N.J. Super. 462, 472 (App. 

Div. 2001)), certif. denied, 185 N.J. 297 (2005). Ordinarily, 

dismissal for failure to state a claim is without prejudice, and 

the court has discretion to permit a party to amend the pleading 

to allege additional facts in an effort to state a claim. See

Hoffman v. Hampshire Labs, Inc., 405 N.J. Super. 105, 116 (App. 

Div. 2009). 

In this case, Demetro was deprived of discovery responsive

to her inquiry as to the date that Slater Tenaglia mailed the debt 

verification. Demetro specifically requested information 

concerning debt verification mailing procedures at Slater 

Tenaglia. Demetro correctly noted that Garcia's certification 

raised more questions than provided answers and lacked the 
7 A-1317-15T1

requisite personal knowledge, in accordance with Rule 1:6-6, as 

to the actual mailing of the verification in this case. Absent 

production of Slater Tenaglia's collection file, Demetro had no 

way to refute the mailing date. If she had discovery responses, 

Demetro argues she would substantiate her claim that the debt 

verification was mailed after the filing of the collection 

complaint in violation of the FDCPA. Giving Demetro every 

favorable inference, discovery should have been completed prior 

to the judge's dismissal with prejudice of the third-party 

complaint. 

Demetro also filed a motion to amend her third-party complaint 

based upon Slater Tenaglia's inconsistent positions identifying 

the date it purportedly mailed the verification. While Demetro's

motion seeking leave to file an amended pleading was pending before 

the court, Slater Tenaglia moved for dismissal of the third-party 

complaint. The motion judge granted Slater Tenaglia's dismissal 

motion and denied as moot Demetro's motion to amend. 

Rule 4:9-1 requires that motions for leave to amend to be 

granted liberally and without consideration of the ultimate merits 

of the amendment. See Notte v. Merchants Mut. Ins. Co., 185 N.J.

490, 500-01 (2006). An opposed motion to amend a pleading to add 

a new cause of action should be determined under the same standard 

applicable to a motion to dismiss under Rule 4:6-2(e). See Maxim 
8 A-1317-15T1

Sewerage Corp. v. Monmouth Ridings, 273 N.J. Super. 84, 90 (Law 

Div. 1993). Because we find that the motion judge erred in 

dismissing Demetro's third-party complaint pursuant to Rule 4:6-

2(e), the motion judge erred in denying as moot Demetro's motion 

for leave to amend her pleading to include a claim based upon 

Slater Tenaglia's inconsistencies regarding the date it mailed the 

debt verification. 

Lastly, Demetro contends that the motion judge improperly 

relied on matters outside the pleadings in dismissing her thirdparty complaint. Demetro's pleading did not reference Garcia's 

certification.

4 Yet, the motion judge relied on the certification 

to conclude that Slater Tenaglia mailed the verification prior to 

filing the complaint. Because the Garcia certification was not 

referenced in Demetro's third-party complaint, the trial court was 

required to treat the motion as one for summary judgment, and 

Demetro should have been accorded an "opportunity to present all 

material pertinent to such a motion." R. 4:6-2; see also Wang v. 

Allstate Ins. Co., 125 N.J. 2, 9 (1991) (trial court properly 

converted motion pursuant to Rule 4:6-2(e) into a motion for 

summary judgment due to submission of documents outside the 

pleadings).

 

4 Demetro's third-party complaint was filed in April 2015. 

Garcia's certification was filed two months later.
9 A-1317-15T1

Reversed as to the dismissal for failure to state a claim and 

remanded as to leave to amend. We do not retain jurisdiction.