Conforti v. Kantorowski, 2011 WL 1433764 (App. Div. April 15, 2011). The Appellate Division often expresses displeasure, or worse, with stratagems designed to obtain immediate appellate review of a decision that is in fact interlocutory and therefore not immediately reviewable except on leave to appeal. See, e.g., Grow Co. v. Chokshi, 403 N.J. Super. 443 (App. Div. 2008). The per curiam opinion in Conforti, by a panel consisting of Judges Rodriguez and Miniman, is another example.
On January 9, 2009, the Law Division, Somerset County, granted summary judgment in favor of defendant New Jersey Department of Transportation (“DOT”) and against plaintiffs. Plaintiffs wanted to appeal that decision immediately. But there was another defendant, Kantorowski, who was still in the case. Accordingly, plaintiffs procured an order in 2010 that dismissed plaintiffs’ claims against Kantorowski. That order recited, however, that plaintiffs intended to appeal the 2009 summary judgment in favor of DOT and, if that order were reversed and remanded, “the Judgment of No Cause of Action against … Kantorowski[ ] will be vacated and the complaint reinstated so that the matter will proceed to trial against both [the DOT and Kantorowski].”
The Appellate Division saw right through this transparent tactic. Citing Grow and other cases, the panel stated that “[w]here a dismissal without prejudice of a party contemplates further action and is entered for the purpose of rendering an otherwise interlocutory order appealable, such a dismissal precludes finality and hence the appealability of an earlier order.”
The Appellate Division criticized virtually everyone involved in what had occurred. “[P]laintiffs had no right to appeal the 2009 order, and the judge ought not to have entered the order submitted by them. Lest the DOT avoid criticism, we note that we have commented that motions to dismiss improvidently filed appeals should be made by a respondent prior to the filing of a responding brief.”
Nonetheless, the Appellate Division decided to grant leave to appeal nunc pro tunc and to decide the case on its merits. The panel then affirmed the decision in favor of DOT.
Counsel and clients should learn that they cannot pass off an interlocutory decision as final. The Appellate Division is very vigilant about this, and properly so. This opinion also reminds respondents of their duty to move to dismiss an appeal where there is no final judgment.