If You Don’t List It in Your Notice of Appeal, It’s Not on Appeal

Onuigbo v. American Export Lines, 2011 WL 13762 (App. Div. Nov. 1, 2010).  A lawyer would not, or should not, have had happen what occurred here, since appellate lawyers know that only issues listed in the notice of appeal are considered to be under appeal.  But the plaintiff in this appeal was pro se.  His notice of appeal designated only the denial of a motion for reconsideration, not the underlying motion to vacate the dismissal of the case and reinstate the complaint.  The Appellate Division affirmed the denial of reconsideration.

It is not clear whether the overall outcome would have been different had the original denial been listed in the notice of appeal.  But this decision is a warning for appellants, who must be sure that any allegedly wrongful action by the trial court is included in the notice of appeal.  Otherwise, the appellant loses the chance to appeal that wrongful action.