                 NOT FOR PUBLICATION WITHOUT THE
                APPROVAL OF THE APPELLATE DIVISION

                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-5923-13T2

SEOUNG OUK CHO, deceased,
by his administrator,
YUNJIN JO, YUNJIN JO,                    APPROVED FOR PUBLICATION
YOUNG HO JO, and HANNAH CUI,
                                            December 30, 2015
      Plaintiffs-Appellants,
                                           APPELLATE DIVISION
v.

TRINITAS REGIONAL MEDICAL
CENTER and NJ HEART,

      Defendants,

and

JOHN HAN SHAO, M.D., GARDEN
STATE CARDIOVASCULAR SPECIALISTS,
EDWARD G. WILLIAMS, M.D., and
HYEUN PARK, M.D.,

     Defendants-Respondents.
________________________________________________________________

          Argued November 17, 2015 – Decided December 30, 2015

          Before    Judges     Fisher,     Espinosa      and
          Rothstadt.

          On appeal from Superior Court of New Jersey,
          Law Division, Union County, Docket No. L-
          104-11.

          Michael S. Kimm argued the cause for
          appellants (Kimm Law Firm, attorneys; Mr. Kimm
          and Sung H. Jang, on the briefs).

          Jason M. Altschul argued the cause for
          respondents John Han Shao, M.D. and Garden
            State Cardiovascular Specialists (Krompier &
            Tamn, L.L.C., attorneys; Richard J. Tamn, of
            counsel and on the brief; Mr. Altschul, on
            the brief).

            Brion D. McGlinn argued the cause for
            respondent Edward G. Williams, M.D. (Ruprecht
            Hart Weeks & Ricciardulli, LLP, attorneys;
            David Parker Weeks, of counsel and on the
            brief; Mr. McGlinn, on the brief).

            Gary L. Riveles argued the cause for
            respondent Hyeun Park, M.D. (Dughi, Hewit &
            Domalewski, attorneys; Mr. Riveles, on the
            brief).

    The opinion of the court was delivered by

ESPINOSA, J.A.D.

    In    Klier   v.    Sordoni      Skanska        Construction     Co.,   337    N.J.

Super. 76 (App. Div. 2001), we held the plaintiffs were denied

due process of law when a trial court sua sponte conducted a

summary   procedure      on    the   day       of    trial   and   dismissed      their

complaint.        This        medical      malpractice        case    presents       an

unfortunately more common variation of the scenario in which a

litigant's case is dismissed on the day of trial.                           Although

labeled a "motion in limine," the motions filed by defendant

Hyeun Park, M.D., on the day before jury selection sought the

dismissal    of   the    complaint         in       its   entirety,    an   admitted

violation of the rule governing summary judgment motions.                            We

now hold that the trial court's consideration of these motions




                                           2                                 A-5923-13T2
and dismissal of the complaint against Park deprived plaintiffs

of their right to due process of law.

                                        I.

    Defendant Park was decedent Seoung Ouk Cho's primary care

cardiologist.     On April 23, 2009, he examined Cho at NJ Heart

and admitted him to Trinitas Regional Medical Center because Cho

complained of chest pain and had an abnormal electrocardiogram

(EKG).    Defendant      John     H.     Shao,   M.D.,        of    Garden      State

Cardiovascular    Specialists,     performed     a    heart        catheterization

and an angioplasty (stent).        On June 25, 2009, Shao performed a

second stenting procedure at Trinitas.                On July 16, 2009, Cho

complained to Park that he "was feeling a little bit worse."

Park performed an EKG, which was normal, and referred Cho for a

thallium stress test at Trinitas.

    On   July    21,   2009,    defendant     Edward     G.    Williams,        M.D.,

administered a stress test to Cho at Trinitas.                 Williams was not

involved in scheduling the test, had never met Cho before and

did not have any prior knowledge of Cho's medical history or

current condition.      Williams terminated the stress test after

approximately    six   minutes,        when   Cho's    EKG     changed       and    he

indicated he was experiencing chest pain.               Williams immediately

administered nitroglycerin spray; Cho's chest pain dissipated.




                                        3                                    A-5923-13T2
       Williams reached out for Shao.           He explained the results of

the stress test to a covering physician, who admitted Cho to

Trinitas, approximately one hour after Williams terminated the

stress test.     Williams did not have any further interaction with

Cho.    On July 23, 2009, while waiting for a scheduled cardiac

catheterization, Cho suffered a fatal cardiac arrest.

       Plaintiffs      are   Cho's    siblings,      Yunjin       Jo     (Yunjin),1

individually and in her capacity as administrator of his estate,

and Young Ho Jo, and Cho's fiancée, Hannah Cui. Their complaint

alleged    wrongful      death,    medical     negligence        and   breach     of

contract for medical services.                As for the injury suffered,

plaintiffs alleged they "lost their loved one; have suffered

loss of society and consortium; and have lost other rights in

relation to plaintiff Cho."               Their answers to interrogatories

identified plaintiffs' claim for economic damages as follows:

"Plaintiff-decedent has lost at least $50,000.00 per year for at

least 32 years as plaintiff-decent [sic] would have owned and

operated   his   own    business     at    least   until   age    70."     In    her

deposition, Yunjin testified she incurred approximately $10,000

in funeral expenses for Cho.              No documentation was provided to

corroborate this expense or plaintiffs' claims that Cho had his


1
   To avoid confusion, we refer to Cho's sister by her first
name.



                                          4                                A-5923-13T2
own    business,      earned      any    amount          of    income    or    provided      any

financial support to any of the plaintiffs.

       Over    the    course      of    approximately            two    years,    defendants

filed summary judgment motions that resulted in the dismissal of

all of plaintiffs' complaint2 except for the claims against Park.

       In     November     2011,        the     claims         against        Trinitas      were

dismissed on the ground that plaintiffs failed to comply with

the Affidavit of Merit statute, N.J.S.A. 2A:53A-27 to -29.

       In March 2012, defendants Park, Garden State and Shao were

granted partial summary judgment, dismissing Cui's claims with

prejudice      on    the   ground       that,       as   Cho's    fiancée       she   was    not

entitled to any recovery under the Wrongful Death Act, N.J.S.A.

2A:31-1 to -6.        The trial court also granted summary judgment to

Shao and Garden State based upon plaintiffs' failure to produce

an    expert    report     that    identified            how    Shao    and    Garden    State

deviated from the accepted standard of care.




2
  In Points II, III, IV and V of their appeal, plaintiffs argue
that the trial court erred in dismissing the claims against the
other defendants, barring Frankenfeld's testimony, dismissing
Cui's claims, and further argue that the trial court erred in
failing to require defendants to produce records of payments
they received from Cho for medical services.    After reviewing
these arguments in light of the record and applicable legal
principles, we conclude they lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).



                                                5                                     A-5923-13T2
       In July 2012, the claims against Williams were dismissed on

the ground that plaintiffs failed to show his alleged negligence

proximately caused Cho's death.

       In August 2013, the trial court granted Park's motion to

exclude     the    testimony      of    plaintiffs'       economic    expert     on    the

ground that his opinion constituted a net opinion.                            Plaintiffs

filed a motion for leave to appeal this order, which was denied

by this court.           Thereafter, plaintiffs filed a motion for leave

to appeal with the Supreme Court, which denied the motion on

December 18, 2013.

       In   sum,    as    of     August   2013,      summary      judgment     had    been

granted dismissing the complaint against all defendants other

than   Park.       All    claims       asserted     by    Cho's   fiancée     under    the

Wrongful Death Act had been dismissed with prejudice.                                 As a

result      of    the    order      barring       Frankenfeld's      expert     opinion,

plaintiffs lacked expert testimony to support their claims that

they suffered the loss of economic support from Cho.                                 As of

December     18,    2013,      no      requests     for    appellate    review        were

pending.

                                           II.

       The matter was listed for trial on Monday, March 31, 2014.

This was the second trial date, coming four weeks after the

first trial call before the presiding judge.                          Addressing the




                                              6                                 A-5923-13T2
parties,    the   trial    judge    noted     neither    the    plaintiffs       nor

defendant Park wanted to pick a jury that day and stated she

understood the parties had "in limine motions" to be heard.                      She

announced   a     jury    would   be   selected    "first       thing   Wednesday

morning," followed by opening statements on Wednesday afternoon.

She   directed    plaintiffs'      counsel    to   bring    all    exhibits      for

marking before 9:00 a.m.            Park's counsel confirmed he had no

issue with any of the exhibits.             The court reviewed the order of

witnesses   and    that    the    defense    expert     would    testify    before

plaintiffs' expert.

      When the trial judge turned to address defendant Park's

motions, defense counsel was not prepared to argue any in limine

motions.    He stated,

                 Judge, I, I did point out in chambers
            that I may have a motion on Wednesday, and
            that is to dismiss.   I'm still mulling it
            over, because I don't know what damages are
            left in this case.

                 As I said, the Complaint does not
            reference   a  survival   cause   of action.
            [N.J.S.A.] 2A:15-3 is not pled even remotely
            in the Complaint.     And as it relates to
            income loss, that's gone.     So, all that's
            left is companionship advice and Counsel.
            And that was not referenced [in] the Answers
            to Interrogatories. So, I have an Associate
            working on that for me right now.

            [(Emphasis added).]




                                        7                                  A-5923-13T2
         After further discussion, the trial judge stated she would

like to "have some time to reflect on [the motion]" and asked to

have      the    motion       filed    and     served       by     the     following         day.

Plaintiffs'        counsel      was    not     asked       for   his     consent    to       this

procedure        and    did    not    pose     an    objection.           The    court       then

proceeded to address plaintiffs' in limine motions.

         Park's motion papers were filed on the following day, April

1, 2013.        In a sixteen-page brief, Park argued that plaintiffs'

wrongful death claim should be dismissed with prejudice because

their proofs of economic loss were "too speculative to present

to   a    jury,"       that   the     claim    for    punitive         damages    should      be

dismissed with prejudice, and that plaintiffs should be barred

from     presenting       any   evidence        of    pain       and   suffering        by    Cho

because     no    survival      claim     had       been    pleaded.           Finally,      Park

argued that if the requested relief were granted, no viable

claim remained and the complaint should be dismissed in its

entirety with prejudice.

         With    exhibits,      Park's        submission         was     260    pages     long.

Although there were some citations to the record included in the

brief, the moving papers did not include a statement of material

facts or otherwise conform to the requirements of Rule 4:46-

2(a).




                                               8                                     A-5923-13T2
    Plaintiffs' five-page opposition was filed and served by

email    on    the   same     day,     within    hours    of     Park's   filing.

Plaintiffs cited N.J.S.A. 2A:31-5, which authorizes the jury to

award

              such damages as they shall deem fair and
              just   with   reference   to the   pecuniary
              injuries resulting from such death, together
              with the hospital, medical and funeral
              expenses incurred for the deceased, to the
              persons entitled to any intestate personal
              property of the decedent.

              [(Emphasis added).]

    Plaintiffs noted that in addition to her contention that

she anticipated financial support from Cho, Yunjin testified she

paid approximately $10,000 in funeral expenses.                     They argued

further that the complaint could be fairly read to allege a

survival action because Cho's sister, brother and fiancée were

named as individual parties.

    On    the     following     day,    the     trial    judge    expressed     her

reluctance to consider the motion:

              I received an email yesterday; I would say
              mid to late morning . . . a purported motion
              in limine seeking to dismiss plaintiff's
              [sic] claim for punitive damages, wrongful
              death and preclude any reference to pain and
              suffering as a survival claim, as they have
              not been pled.

                   Now, some Judges, and I've asked them,
              would not even consider your motion, because
              it's not a motion in limine.   I'm going to
              give you a chance to explain to me why I



                                         9                                A-5923-13T2
          should even consider this, since this is
          something that could have been made as a
          motion for summary judgment, as a motion to
          dismiss, at any time during the — how many
          years has this case been pending?

     After counsel responded that the matter had been pending

for three years, the court continued:

               Three? Any time during those three
          years?   Why am I getting it; as we have
          already come to trial, as — you know, if it
          hadn't   been   for  your . . .  engagement
          yesterday. . . . [w]e would be engaged in
          trial.   I mean [the presiding judge] was
          less than pleased that I wasn't pulling a
          jury on Monday.     So, why, why should I
          consider this now? It's not really a motion
          in limine.

     When Park's counsel insisted "it is absolutely a motion in

limine," the judge responded, "it's a motion in limine only

because you brought it on the eve of trial."            The explanation

Park's counsel gave for the delay in filing the motion was that

there were several appeals to the Appellate Division and the

Supreme Court, which deprived the trial court of jurisdiction.3

     After   hearing   oral   argument,   the   trial   judge   issued    a

decision on the record, granting the motion and dismissing all

claims with prejudice.    A motion for summary reconsideration was

denied and this appeal followed.

3
   As we have noted, the Supreme Court denied plaintiffs' motion
for leave to appeal from the order barring the testimony of
their economic expert in December 2013.      No other appellate
activity was identified.



                                  10                             A-5923-13T2
      In   oral   argument     before       this   court,   Park's    counsel

presented a different reason for the untimely filing of the

motion to dismiss.      He stated the motion was filed "at the last

minute" because the attorney who had filed Park's earlier motion

to bar the testimony of the economic expert had left the law

firm and trial counsel received the file to prepare for trial

just prior to the weekend before trial.               Although he admitted

that the filing of the motions violated the Rules of Court,

counsel maintained he was entitled to file a motion to dismiss

the   complaint   at   any   time,   even     at   trial.   Counsel    argued

further that the order dismissing the complaint against Park

should be affirmed because the complaint lacked merit.

                                     III.

      Our Rules of Court provide explicit requirements for the

timing of summary judgment motions, what must be presented in

support of and in opposition to such motions, and the standard

for deciding them.     R. 4:46-1, -2.        There are, however, no rules

that explicitly address motions in limine.

      The term "in limine" is taken from the Latin phrase, "at

the outset."      Black's Law Dictionary 791 (9th ed. 2009).                The

absence of any rule addressing what may properly be considered

as a preliminary matter before trial commences has permitted the

timing of the motion, rather than its subject matter, to pass




                                      11                              A-5923-13T2
for a definition.           However, whether a motion is correctly termed

a motion in limine is not dictated by the fact it is brought

literally on the threshold of trial.                       Black's defines a motion

in limine as "[a] pretrial request that certain inadmissible

evidence not be referred to or offered at trial."                             Id. at 1109.4

Thus, it is anticipated that, as a general rule, a motion in

limine will not have a dispositive impact on a litigant's entire

case.

       Even    when    a    limited        issue      is   presented,      "[o]ur     courts

generally      disfavor       in    limine      rulings     on      evidence   questions,"

because       the     trial        provides      a     superior       context      for    the

consideration of such issues.                   State v. Cordero, 438 N.J. Super.

472,    484-85      (App.     Div.    2014),         certif.     denied,    221    N.J.   287

(2015).       Although a trial judge "retains the discretion, in

appropriate cases, to rule on the admissibility of evidence pre-

trial," id. at 484, we have cautioned that "[r]equests for such

rulings    should      be     granted       only      sparingly."          Ibid.    (quoting

Bellardini v. Krikorian, 222 N.J. Super. 457, 464 (App. Div.

1988); see also Biunno, Weissbard & Zegas, Current N.J. Rules of

Evidence,      comment        1      on     N.J.R.E.       105      (2015).        This     is

particularly        true      when        the   "motion        in    limine"      seeks   the

4
   Arguably, defendant's motion to exclude evidence of Cho's pain
and suffering because no survival claim had been pleaded, would
fall within this description.



                                                12                                  A-5923-13T2
exclusion of an expert's testimony, an objective that has the

concomitant effect of rendering a plaintiff's claim futile.                            See

Bellardini, supra, 222 N.J. Super. at 463-64.

      The fact that this misuse of the motion in limine occurs

sufficiently       often    to    win   our    notice,      despite     our    repeated

cautions     against       such    practice,       leads     us    to   conclude       it

necessary to state clearly what a motion in limine is not.                             It

is not a summary judgment motion that happens to be filed on the

eve   of   trial.       When      granting     a   motion    will     result    in     the

dismissal     of    a   plaintiff's      case      or    the      suppression     of    a

defendant's defenses, the motion is subject to Rule 4:46, the

rule that governs summary judgment motions.

      Rule   4:46-1     states,      "[a]ll    motions      for    summary     judgment

shall be returnable no later than 30 days before the scheduled

trial date, unless the court otherwise orders for good cause

shown."      In our view, the "unless otherwise ordered" language

contemplates scheduling by the court, prior to trial, either sua

sponte or upon a showing of good cause by the movant.                          However,

even if the good-cause standard applies here,5 defendant failed




5
   Although we need not reach this issue on the facts before us,
it would not be unreasonable to infer that defendant's request
to have his untimely motion entertained at trial should be
subject to an "extraordinary circumstances" standard.        See
Klier, supra, 337 N.J. Super. at 85 (suggesting a summary
                                                     (continued)


                                          13                                   A-5923-13T2
to make a sufficient showing to justify consideration of his

untimely motion.

    Using    language     similar     to   Rule   4:46-1,      Rule    4:24-2

identifies   motions    that   must   be   made   returnable    before      the

expiration of the discovery period "unless on notice and motion,

for good cause shown, the court otherwise permits."               In Carbis

Sales, Inc. v. Eisenberg, 397 N.J. Super. 64, 80-82 (App. Div.

2007) (emphasis added), we found the trial court did not abuse

its discretion in denying a motion made at trial, and "grossly

out of time," to compel discovery of a document where the moving

party had knowledge of the document, failed to file a timely

motion and offered no explanation for such failure.

    Here, too, the documents relied upon by Park to support his

motions were available for review long before the time in which

to file a summary judgment motion expired.            Defendant's stated

reason that the court had lacked jurisdiction to entertain the

motion fails to establish good cause in light of the fact that

appellate proceedings concluded more than three months before

the trial date and did not preclude the filing of a timely

motion.   Similarly, the unexceptional departure of an associate

falls short of establishing good cause.


(continued)
dismissal at trial may be an appropriate exercise of discretion
when the situation is "truly emergent" or "extraordinary").



                                      14                              A-5923-13T2
       We also find no basis for the application of Rule 1:1-2,

which generally permits the relaxation of a rule "if adherence

to    it    would    result      in    an    injustice."          "Rule   1:1-2    is   the

exception, rather than the norm," Romagnola v. Gillespie, Inc.,

194 N.J. 596, 604 (2008) (quoting State v. Williams, 184 N.J.

432,       442     (2005)),      and    "should         be    sparingly   resorted      to,

particularly when a reasonable interpretation of the complex of

directly applicable rules meets the problem at hand."                             Pressler

and Verniero, Current N.J. Court Rules, comment 2 on R. 1:1-2

(2016); Romagnola, supra, 194 N.J. at 604; Bender v. Adelson,

187    N.J.       411,    431   (2006).           The    "problem   at    hand"    is   the

appropriate timing of dispositive motions.                        Rule 4:46 meets that

problem, recognizing the "obvious" desirability of deciding such

motions          prior    to    trial       and    establishing       requirements       to

accomplish that goal.             Pressler & Verniero, supra, comment on R.

4:46-1.

       It is, therefore, clear that the Rules of Court offer no

legitimate path for the consideration of defendant's motions on

the    day       before   jury    selection.             We   therefore   turn     to   the

question whether the dismissal of the complaint based upon these

motions deprived plaintiffs of due process of law.




                                              15                                  A-5923-13T2
                                      IV.

      "Fundamentally, due process requires an opportunity to be

heard at a meaningful time and in a meaningful manner."                          Doe v.

Poritz, 142 N.J. 1, 106 (1995); see Pelullo v. State, Comm'n of

Investigation,     294    N.J.   Super.        336,    345    (App.     Div.     1996),

certif. denied, 149 N.J. 35 (1997).                   "[W]hile the concepts of

'judicial     administration'       and    fairness      are      not    necessarily

incompatible, the desire to facilitate judicial administration

must take a back seat to our primary goal which is to adjudicate

cases fairly and impartially."            Klier, supra, 337 N.J. Super. at

83.   "Our rules of court must be 'construed to secure a just

determination,         simplicity         in     procedure,            fairness       in

administration and the elimination of unjustifiable expense and

delay.'"    Ibid. (quoting R. 1:1-2).

      The summary judgment rules have been amended over the years

to ensure those goals are realized.              Prior to the amendment that

became effective January 1986, the timing of summary judgment

motions was subject to Rule 1:6-3.               Pressler & Verniero, supra,

History    and   Analysis   of   Rule      Amendments        to   R.    4:46-1    (Gann

Online     Edition).      The    impetus       for    the     amendment     was      the

recognition it was "patently unfair to apply the time frames of

R. 1:6-3(a), which give the respondent only 8 days in which to

file and serve the response" when the movant was free from any




                                          16                                   A-5923-13T2
time constraints.        Pressler & Verniero, supra, comment on R.

4:46-1 (emphasis added).           To remedy this, the amendment afforded

the respondent "approximately three weeks for response."                      Ibid.

The    amendment     also    required         summary   judgment    motions        be

"returnable no later than 30 days before trial" to implement the

goal of resolving dispositive motions prior to trial.                         Ibid.

Trial judges were encouraged to decide summary judgment motions

on a more timely basis by providing that adjournment requests be

"liberally granted" if the "disposition is not [communicated] at

least 10 days prior to the scheduled trial date."                   Ibid.      This

change was made "[i]n recognition of counsel's need to know the

disposition of the summary judgment motion in sufficient time to

prepare for trial if the motion is denied or only partially

granted."    Ibid.

       "Due process is not a fixed concept . . . but a flexible

one that depends on the particular circumstances."                  Doe, supra,

142 N.J. at 106.         Therefore, we do not hold that the summary

judgment rules establish rigid requirements that must be met in

every case for due process demands to be satisfied.                     Still, the

time    requirements     for      the   filing    and   decision    of     summary

judgment    motions    provide      a   useful     background     for    assessing

whether     plaintiffs      had    an   opportunity     to   be    heard      at    a

meaningful time and in a meaningful manner.




                                         17                                A-5923-13T2
      In this case, the timing requirements of Rule 4:46-1 were

violated in every respect.            Notice of the motion came not thirty

days before the trial date, but after the second trial date.

Plaintiffs had less than one day to file their response.                           This

was not only substantially less than the three weeks afforded

them by Rule 4:46-1; it was even less than the "patently unfair"

eight-day    period       in   effect     prior    to    the    rule's      amendment.

Finally, the decision here was rendered the day before jury

selection, presumably after plaintiffs had expended some effort

and   expense      to   prepare     for   trial,   rather      than   the    ten   days

before trial anticipated by the rule.6

      In Klier, the trial court afforded plaintiffs' attorney two

days to produce his expert's report and argue against a motion

for dismissal.          337 N.J. Super. at 84.          Observing the "obvious"

purpose of the summary judgment rules was "to afford the party

against     whom    relief     is    sought     notice    of    the    application,

together with a meaningful opportunity to respond," we concluded

that two days was insufficient to cure the deficiencies in the




6
   The movant also failed to comply with the requirements of Rule
4:46-2(a), which are intended "to focus the parties' attention
on the areas of actual dispute" and "significantly facilitate
the court's review." Pressler and Verniero, supra, comment 1 on
R. 4:46-2. This failure put both the trial judge and plaintiffs
at an unnecessary disadvantage.



                                           18                                 A-5923-13T2
plaintiffs' opportunity to respond.                      Id. at 84-85.      Accordingly,

we held the plaintiffs had been deprived due process of law.

      We reach the same conclusion here.                          Further, we utterly

reject    the    argument      that    the     dismissal       should      be     affirmed,

despite    the    violation       of     summary          judgment       rules,     because

plaintiffs suffered no prejudice in the dismissal of claims that

lacked merit.      The right to due process of law is not limited to

worthy causes.         However, we note that, because we conclude that

these motions should not have been considered by the court, we

express no opinion as to the merits of the motions.

        We are not insensitive to the pressures upon the court and

litigants that may make it appear reasonable to disregard the

requirements      of    the    rules     and       sound    the    death       knell    to    a

litigant's case on the day of trial.                          Lawyers burdened with

heavy    caseloads      may    lack    the        heightened       focus    to     identify

dispositive      issues       earlier.         A    litigant       may    be    unable       or

unwilling to acknowledge weaknesses in his or her case.                                 Trial

judges may be sorely tempted to spare jurors the task of hearing

a cause that appears to lack merit and turn to the demands of an

unyielding      calendar.         Still,           our    commitment       to     the    fair

administration of justice demands that we protect a litigant's

right to proceed to trial when he or she has not been afforded

the     opportunity      to     respond      to      dispositive         motions        at    a




                                             19                                    A-5923-13T2
meaningful time and in a meaningful manner.                We therefore hold

that, absent extraordinary circumstances or the opposing party's

consent,    the   consideration   of      an    untimely   summary   judgment

motion at trial and resulting dismissal of a complaint deprives

a plaintiff of due process of law.

    The     order    dismissing      plaintiffs'       complaint     against

defendant    Park   is   reversed.         We    remand    the   matter    for

restoration to the trial calendar and leave further management

of the case to the discretion of the trial court.




                                     20                              A-5923-13T2
