HUNY & BH Associates v. Silberberg, ___ N.J. Super. ___ (App. Div. 2016). This 2-1 decision of the Appellate Division, issued today, is a rare published opinion on a motion to dismiss an appeal. Defendant Silberberg filed a motion to intervene in a multi-party lawsuit on behalf of himself doing business as “Right Time,” a New York sole proprietorship. The Law Division denied that motion, and Silberberg filed an appeal as of right. Other parties moved to dismiss the appeal, asserting that denial of a motion to intervene is not immediately appealable as of right. Writing for himself and Judge Leone, Judge Ostrer agreed and dismissed the appeal. Judge Fisher dissented, though he agreed that Silbergberg had no right to appeal. He would have entertained the appeal on an interlocutory basis.
Judge Ostrer observed that prior Appellate Division cases had gone both ways on this issue. Grober v. Kahn, 88 N.J. Super. 343, 360 (App. Div. 1965), rev’d on other grounds, 47 N.J. 135 (1966), stated that “an order denying intervention has been deemed to be final.” In contrast, Gov’t Sec. Co. v. Waire, 94 N.J. Super. 586, 588-89 (App. Div. 1967), labeled as interlocutory an appeal from a denial of intervention where there was an “absolute right to intervene.” Waire did not make reference to Grober.
Complicating the picture was Savage v. Weissman, 355 N.J. Super. 429, 435 (App. Div. 2002), which noted both Grober and Waire and ruled, in a case involving permissive intervention under a different Court Rule, that the denial of permissive intervention is interlocutory. Judge Ostrer found this troubling, and concluded that it was “far more sensible” to treat appeals from both types of intervention motions as interlocutory.
Judge Ostrer noted federal cases that had found appeals from the denial of intervention as of right to be immediately appealable. He did not find those cases persuasive. The federal view, he observed, is “based on a concern that, if a proposed intervenor cannot immediately appeal the denial of a motion to intervene as of right, then he or she would be forever precluded from securing review at the close of the case as he would lack status as a party.” But a denied intervenor would not be precluded under New Jersey practice, given Rule 2:2-3, any more than a party who is “dismissed at some point during the course of the litigation” would be precluded.
Moreover, in federal court, an appeal from a denial of intervention does not necessarily halt the progress of the overall case. In contrast, under New Jersey’s Rule 2:9-1, an appeal as of right strips the trial court of jurisdiction, thus stopping the case in its tracks. That is not a favored result.
Finally, Judge Ostrer noted that even the federal approach provides that where a party is already involved in a case, and would thus have standing to appeal regardless of the denial of intervention, the denial of intervention is not immediately appealable. Here, Silberberg was already a party and could appeal as of right at the end of the case. The denial of intervention as of right was therefore not immediately appealable.
The legal issue here remains unsettled, but the opinions in today’s case are persuasive. That is especially so in light of New Jersey’s strong policy against interlocutory appeals except in unusual circumstances.