SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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RIDGEFIELD PARK PBA LOCAL 86 , Plaintiff

- Appellant,

v. VILLAGE OF RIDGEFIELD PARK , Defendant

- Respondent.

__________________________

Submitted June 6, 2022

– Decided July 5, 2022 Before Judges Rothstadt and Mayer.
On a ppeal from t he Superior Court of New Jersey, Law Division, Bergen County, Docket No. L

- 5647

- 21. Limsky Mitolo, attorneys for appellant (Merick H. Limsky, on the brief)

. Boggia Boggia Betesh & Voytus, LLC, attorneys for respondent (Philip N. Boggia and Joseph W. Voytus, on the brief)

. PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court

. " A lthough 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

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Plaintiff Ridge field Park PBA Local 86 appeals from an August 26, 2021 order denying its order to show cause (OTSC) to proceed summarily and dismissing its verified complaint to vacate or modify a Public Employ ment Relations Commi ssion (PERC) arbitration award. We rever se and remand. Because we reverse on procedural grounds, we forego a recitation of the facts giving rise to plaintiff's employment grievance action against defendant Village of Ridgefield Park under a collective negotiations agreement

. After a PERC arb itrator ruled in favor of defendant in the employment grievance action, on August 24, 2021, plaintiff filed an OTSC and verified complaint pursuant to N.J.S.A. 2A:24

- 7 and Rule 4:67

- 1. Two days later, b efore plaintiff served the OTSC and verified complain t upon defendant, the judge denied the OTSC, finding plaintiff failed to establish "a reasonable probability of success on the merits of the claim or the law on which [plaintiff] bas e s [its] claim is unsettled." The judge concluded plaintiff "ha[d] not me t the necessary standards to vacate the arbitration [award] entered in favor of the [d]efendant. The [p]laintiff has not shown that the arbitrator committed such serious error in that it would not be able to even arguably construe the contract in favor of the [d]efendant." After denying the OTSC to proceed in a summary manner, the judge sua sponte dismissed plaintiff's complaint

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On appeal, plaintiff argues the judge erred in denying the OTSC and dismissing its action. We agree the judge failed to comp ort with Rule 4: 67 governing procedures for summary actions and therefore reverse and remand the matter to the trial court. Additionally, plaintiff requests we exercise original jurisdiction , decide the matter on the merits, and vacate the arbitrator's awa rd. We decline to do so because the issue was not fully briefed by the parties in the trial court proceeding . The judge reviewed only the allegations in the verified complaint
in dismissing plaintiff's action sua sponte. In reviewing a n application under Rule 4:67, we consider whether there is substantial credible evidence supporting the trial judge's disposition of a party's request to proceed summarily

. See O'Connell v. N.J. Mfrs. In s . Co. , 306 N.J. Super. 166, 173 (App. Div. 1997) , app. dism'd , 157 N.J. 537 (1998). We review a trial court's determination based on an interpretation of the c ourt r ule s de novo. Occhifinto v. Olivo Constr. Co., LLC , 221 N.J. 443, 453 (2015).

" A party to [ an ] arbitration proceeding may . . . commenc e a summary action in the court . . . for the confirmation of the award or for its vacation, modification or correction. " N.J.S.A. 2A:24

- 7. B ecause the matter involved an4 A

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arbitration award, plaintiff had the option to proceed in a summary manner under
Ru le 4:67

- 1(a). Rule 4:67

- 2(a) provides:

[i]f the action is brought in a summary matter pursuant to R

. 4:67

- 1(a), the complaint, verified by affidavit made pursuant to R. 1:6

- 6, may be presented to the court ex parte and service shall be made pursuant to R. 4:52

- 1(b) . . . . The proceeding shall be recorded verbatim provided that the application is made at a time and place w h ere a reporter or sound recording device is available. The court, if satisfied with the suff iciency of the application, shall order the defendant to show cause why final judgment should not be rendered for the relief sought.

" Rule 4:67

- 1 is designed 'to accomplish the salutary purpose of swiftly and effectively disposing of matters which len d themselves to summary treatment while at the same time giving the defendant an opportunity to be heard at the time plaintiff makes his [or her] application on the question of whether or not summary disposition is appropriate.'" Grabowsky v. T w p. of Mont clair , 221 N.J. 536, 549 (2015) ( quoting Pressler & Verniero, Current N.J. Court Rules , cmt. 1 on R. 4

- 67

- 1 (2015)). In Grabowsky , our Supreme Court held the trial court's summary disposition dismissing the plaintiff's complaint was procedurally improper under Rule 4:67

- 1. I bid

. In that case, the Court noted
t he procedural requirements of Rule 4:67

- 1 "serve important objectives: to permit the presentation of a factual record and legal arguments to the court, and5 A

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to ensure that the parties anticipate and address the standard for summary disposition before the court decides whether to grant that relief." Id. at 550. Here, the judge denied plaintiff's OTSC to proceed summarily without development of a complete factual record and without the benefit of defe ndant's arguments. Thus, the record lacks substantial credible evidence supporting the denial of plaintiff's motion to proceed in a summary manner. Nor was the proceeding recorded consis tent with Rule 4:67

- 1. Moreover, plaintiff had no

n otice the complaint would be dismissed in its entirety upon the denial of its
OTSC to proceed summarily

. At the time the judge denied plaintiff's OTSC, t here was no pending motion to dismiss plaintiff's complaint as d efendant had yet to be served with plaintif f's pleadings. After denying the OTSC to proceed in a summary manner, the judge should have notified plaintiff of his intent to sua sponte c onsider the merits of plaintiff's application to vacate or modify the arbitration award

. By dismissing the complai nt on his own, the judge failed to provide plaintiff with "notice and an opportunity to be heard . . . at a meaningful time and in a meaningful manner." Klier v. Sordoni Skanska Constr. Co

. , 337 N.J. Super. 76, 84 (App. Div. 2001).6 A

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Additionally, the ju dge reviewed plaintiff's OTSC as a request for injunctive relief despite plaintiff never requesting such relief. P laintiff file d a verified complaint to vacate or modify the arbitration award and sought adjudication of that issue by way of a summary proce eding under Rule 4:67. Defendant did not file op position to plaintiff's OTSC to proceed summarily or address the merits of the relief sought in the verified complaint because the judge dismissed the litigation prior to plaintiff having the opportunity to serve its
p leadings on defendant. Even presuming the judge's denial of the OTSC to proceed summarily comported with the requirements of Rule 4:67, p laintiff should have been given an opportunity to address why its verified complaint should not be dismissed

. B ased solely on the allegations in the verified complaint , and without notice to plaintiff, the judge determined plaintiff could not prevail as a matter of law in vacating or modifying the arbitrator's award

. On remand, consistent with due process requirements, the judge should provide notice to plaintiff of a ny court

- initiated motion to dismiss the verified complaint . Plaintiff should have an opportuni ty to present arguments why such dismissal would be inappropriate , particularly in the absence of responsive
papers from defendant. We take no position on the outcome of the trial court's7 A

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initiation of its own motion to dismiss plaintiff's complaint if th e judge elects to proceed in such a manner. We leave it to the trial court's discretion how to proceed with a future court

- initiated motion to dismiss and whether defendant's position on such a sua sponte motion s hould be considered to develop a complete record. Reversed and remanded. We do not retain jurisdiction.