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Navigating New Jersey Court Rule 4:67 and Order to Show Cause Procedural Requirements

January 31, 2024 Eric Flaim

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In the complex legal realm, the rules governing the Courts of New Jersey play a pivotal role in ensuring the fair and orderly administration of justice. However, these rules are often complex and prone to misinterpretation. R. 4:67, which governs summary actions in New Jersey, is no exception to this complexity. Complying with the procedural requirements of R. 4:67 can play a pivotal role in properly bringing your action and setting up the legal framework for success.

The following information seeks to demystify the requirements under R. 4:67 and shed light on some of the procedural intricacies of an Order to Show Cause.

When Does R. 4:67 Apply?

Under R. 4:67-1:

This rule is applicable to (a) all actions in which the court is permitted by rule or by statute to proceed in a summary manner, other than actions for the recovery of penalties which shall be brought pursuant to R. 4:70; and (b) to all other actions in the Superior Court other than matrimonial actions and actions which unliquidated monetary damages are sought, provided it appears to the court, on motion made pursuant to R. 1:6-3 and on notice to the other parties to the action not in default, that it is likely that the matter may be completely disposed of in a summary
manner.

R. 4:67-1. While the actual language of the rule may be helpful to some in determining the proper procedure, a detailed analysis of the nuances of R. 4:67-1 is often needed to understand whether a summary action is proper.

R. 4:67-1 procedural requirements are designed, “‘to accomplish the salutary purpose of swiftly and effectively disposing of matters which lend themselves to summary treatment while at the same time giving the defendant an opportunity to be heard at the time plaintiff makes his application on the question of whether or not summary disposition is appropriate.’” Grabowskyv. Township of Montclair, 221 N.J. 536, 549 (2015). Complying with R. 4:67-1 provides the court with the opportunity to review the facts at hand and allow both parties to present their argument prior to deciding whether summary disposition of the matter is even proper.

R. 4:67-1(a)

In determining which subsection of R. 4:67-1 to bring your summary action under it is helpful to first determine if there is a rule or statute authorizing you to bring a summary action. R. 4:67-1(a) provides that summary actions are proper if, “permitted by rule or by statute . . . other than actions for the recovery of penalties which shall be brought pursuant to R. 4:70.” R.4:67-1(a). In the absence of a explicit authorization, you must then look towards R. 4:67-1(b).

R. 4:67-1(b)

R. 4:67-1(b) provides that all actions, other than matrimonial actions and actions seeking unliquidated monetary damages, may be brought as a summary action, upon motion to the court,
“and notice to the other parties to the action not in default, that it is likely that the matter may be
completely disposed of in a summary manner.” R. 4:67-1(b). Under this subsection of R. 4:67, a party must accompany their Order to Show Cause with a motion pursuant to R. 1:6-3 showing that summary adjudication is proper. This motion may be served upon the defendant at the same time as the summons and complaint, but the motion, “shall not be returnable until after the expiration of the time within which the defendant is required to answer the complaint.” R. 4:67- 2(b). Additionally, if application for a summary proceeding is made pursuant to R. 4:67-1(b), the motion must be supported by affidavits made pursuant to R. 1:6-6. The party seeking to move in a summary manner must file a motion, accompanied by a verified complaint and/or supporting affidavits, why summary adjudication is proper. In response, if the defendant opposes summary adjudication, under R. 4:67-4, the defendant must demand a trial by jury. Upon determination by the court whether a genuine issue of material fact exists, the court shall order the action to proceed in a plenary manner under R. 4:67-5.

The applicability of R. 4:67-1 hinges on the presence of specific conditions. If there is no explicit statute or rule, no court ruling following the filing of a motion discussed above, or if both parties do not unequivocally consent to a summary proceeding, then R. 4:67-1 is not applicable.

When Summary Disposition under R. 4:67 is Inappropriate

In the event that the action falls under either R. 4:67-1(a) or (b), summary disposition may still be improper. One such example is if the resolution of the matter involves the resolution of a subjective element, such as intent. Historically, New Jersey precedent has held that cases involving the determination of subjective elements, such as intent, are generally unsuitable for summary adjudication. See Shanley &amp; Fisher, P.C. v. Sisselman, 215 N.J. Super. 200, 212 (App. Div. 1987). In such cases, justice is better served through a plenary trial hearing the merits of the case, rather than summary adjudication. See Ruvolo v. American Casualty Co., 39 N.J. 490, 500 (1963).

However, even if the issue involves a subjective element that is more proper for a plenary trial, the court may still move to proceed summarily. Pursuant to R. 4:67-2(b): [i]f the court is satisfied that the matter may be completely disposed of on the record (which may be supplemented by interrogatories, depositions and demands for admissions) or on minimal testimony in open court, it shall, by order, fix a short date for the trial of the action, which shall proceed in accordance with R.
4:67-5, insofar as applicable.

R. 4:67-2(b). The court may fix an expedited timeline for discovery to be conducted and other
rules culminating in an accelerated trial date.

What to do if you are Involved in a Summary Action

In summary actions brought pursuant to R. 4:67, compliance with the court rules is paramount. If you are defending against a summary proceeding it is helpful to analyze the rules and methods under which the action is brought to potentially dismiss it for non-compliance with R. 4:67. On the other hand, if you are initiating a summary action, strict adherence to the rules is crucial to avoid unnecessary delays and expenses.

Summary actions are often complex proceedings requiring diligent attention to detail
from a lawyer knowledgeable in this area. If you find yourself in the position of needing advice
regarding the procedural requirements call the New Jersey law firm Scura, Wigfield, Heyer,
Stevens &amp; Cammarota, LLP, for a free consultation.

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