                     NOT FOR PUBLICATION WITHOUT THE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.




                                      SUPERIOR COURT OF NEW JERSEY
                                      APPELLATE DIVISION
                                      DOCKET NO. A-2426-15T4

IN THE MATTER OF
VALENTINA ASTAFUROVA, Deceased.

____________________________________

           Submitted April 25, 2017 – Decided December 5, 2017

           Before Judges Fisher and Leone.

           On appeal from Superior Court of New Jersey,
           Chancery Division, Bergen County, Docket No.
           P-000035-15.

           Yury Astafurov, appellant pro se.

           Respondents Igor Solonkovich and                Nikolay
           Astafurov have not filed a brief.

      The opinion of the court was delivered by

LEONE, J.A.D.

      Appellant    Yury   Astafurov     appeals    the    January    13,   2016

dismissal of his complaint without prejudice.

                                       I.

      On December 15, 2014, the Bergen County Surrogate's Court

issued an order certifying decedent Valentina Astafurova's will,

and   letters   testamentary     to    the   executors,    respondents     Igor

Solonkovich and Nikolay Astafurov. On January 30, 2015, appellant,
the son of Valentina and Nikolay, filed a complaint in the Chancery

Division to challenge the validity of the will.

     Appellant alleges that a hearing was scheduled on June 19,

2015, but he was unable to obtain a U.S. visa to come to the United

States for the hearing, and the hearing was postponed to August

14, 2015, September 11, 2015, October 22, 2015, and finally January

25, 2016.

     The trial court filed a letter order on January 13, 2016.

The order related that appellant's January 11, 2016 fax stated he

would be unable to participate in the trial scheduled for January

25, "owing to his continuing inability to secure a US visa to come

to the United States for the trial, or to prepare for a trial."

The court ruled simply: "Accordingly, the trial is cancelled and

the Complaint of Mr. Yury Astafurov is dismissed, without prejudice

and without costs."

     Appellant filed a timely appeal.   Respondents have not filed

a brief. The issue before us is "whether the trial court abused

its discretion in selecting that [dismissal] sanction."          See

Gonzalez v. Safe & Sound Sec. Corp., 185 N.J. 100, 115 (2005).     We

must hew to that standard of review.




                                2                           A-2426-15T4
                                       II.

     It is unclear what rule the trial court relied upon to dismiss

appellant's complaint.     The rule applicable to "Failure to Appear"

at trial is Rule 1:2-4(a), which states:

           If without just excuse or because of failure
           to give reasonable attention to the matter,
           no appearance is made on behalf of a party
           . . . on the day of trial, or if an application
           is made for an adjournment, the court may
           order any one or more of the following: (a)
           the payment . . . of costs . . . ; (b) the
           payment . . . of reasonable expenses,
           including attorney's fees . . . ; (c) the
           dismissal of the complaint . . .; or (d) such
           other action as it deems appropriate.

     "Generally, such dismissals are without prejudice unless the

court for good cause orders otherwise." Connors v. Sexton Studios,

Inc., 270 N.J. Super. 390, 393 (App. Div. 1994).                "[T]he dismissal

remedy, especially . . . a dismissal with prejudice, should not

be invoked except in the case of egregious conduct on the part of

a plaintiff, and should generally not be employed where a lesser

sanction   will    suffice."     Ibid.       "[N]ot      only    are    procedural

dismissals with prejudice generally unwarranted in situations

[where a plaintiff fails to appear for trial], but procedural

dismissals themselves are not favored."            Id. at 395.

     The   trial    court's    order    appeared    to    accept       appellant's

assertion that he tried and failed to get the necessary visa to

appear for trial.     The court did not find appellant's failure was

                                        3                                  A-2426-15T4
"without just excuse of because of failure to give reasonable

attention to the matter."          R. 1:2-4(a).       Even if such a finding

were warranted, "[o]rdinarily, one or more of the lesser sanctions

of the rule would apply, namely, the payment of defendant's costs,

attorney's     fees    and/or     out-of-pocket       costs   for     the     first

appearance."    Ibid.    Without such a finding, no sanction could be

imposed under Rule 1:2-4.        Connors, supra, 270 N.J. Super. at 393.

     Moreover,    it    does     not   appear   such    a   finding    would       be

warranted.     It is undisputed that appellant cannot legally enter

the United States without a visa, that he timely applied for a

visa, and that the United States government denied a visa.

     Faced with that situation, the trial court should not have

immediately dismissed the complaint.            In Brunson v. Affinity Fed.

Credit Union, 199 N.J. 381 (2009), the plaintiff, a necessary

witness subpoenaed to appear at trial, could not appear for trial

because he was in federal prison in Oklahoma and he could not

compel the United States to allow him to attend trial.                      Id. at

404-05.   The Supreme Court reversed the trial court's "'dismissal

of the case,'" holding that "when confronted with a plaintiff who

fails to appear as a witness, trial courts first must explore less

drastic   remedies      before    invoking      the    ultimate     sanction       of

dismissal."    Id. at 385, 404.



                                        4                                   A-2426-15T4
                  There are reasoned, intermediate steps
             between   the  outright   dismissal   of the
             complaint and allowing plaintiff's claims to
             go forward in his absence that should have
             been explored.     For example, the rules
             governing pre-trial depositions could have
             been invoked to take plaintiff's deposition
             de bene esse, that is, "in anticipation of a
             future need[.]" Even outside the confines of
             a pending case, procedures exist to preserve
             testimony when needed.        See R. 4:11-3
             (providing that Rules "do not limit the
             court's power to entertain an action to
             perpetuate testimony or to enter an order in
             any pending action for the taking of a
             deposition to perpetuate testimony").

             [Id. at 405-06 (other citations omitted).]

     Here, the trial court similarly failed to explore the Rules'

"reasonable alternatives that should be explored when a party is

unable" to attend trial. Id. at 406. "Until courts have exhausted

means   of    performing   their   shepherding   function   which   do   not

terminate or deeply affect the outcome of a case, they ought not

to bar a litigant's way to the courtroom."          Connors, supra, 270

N.J. Super. at 395 (quoting Audobon Volunteer Fire Co. No. 1 v.

Church Constr. Co., Inc., 206 N.J. Super. 405, 406-407 (App. Div.

1986)).      Accordingly, we reverse the dismissal of the complaint

and remand for further proceedings.

     Appellant requests other relief.       However, such relief is not

properly before us.

     Reversed and remanded.        We do not retain jurisdiction.


                                      5                             A-2426-15T4
