Opinion
DOCKET NO. A-0584-13T1
02-19-2015
ANTHONY MASTROFILIPPO and DIANE MASTROFILIPPO,Plaintiffs-Appellants, v. BOROUGH OF LITTLE FERRY, Defendant-Respondent, and ANGELA OROZCO,Defendant, and OFFICER JOHN CLARK, OFFICER SAMUEL AGUILAR, SERGEANT JAMES WALTERS, LIEUTENANT SCOTT CROWL, MICHAEL CAPABIANCO, GINO TEDESCO, CHIEF RALPH VERDI and DETECTIVE HARTLESS,Defendants-Respondents.
Louis A. Zayas argued the cause for appellants (Law Offices of Louis A. Zayas, L.L.C., attorneys; Mr. Zayas and Jason A. Rindosh, on the brief). Thomas B. Hanrahan argued the cause for respondents (Thomas B. Hanrahan & Associates, L.L.C., attorneys; Mr. Hanrahan and Kathy A. Kennedy, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti, Fasciale and Whipple. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-3552-12 . Louis A. Zayas argued the cause for appellants (Law Offices of Louis A. Zayas, L.L.C., attorneys; Mr. Zayas and Jason A. Rindosh, on the brief). Thomas B. Hanrahan argued the cause for respondents (Thomas B. Hanrahan & Associates, L.L.C., attorneys; Mr. Hanrahan and Kathy A. Kennedy, on the brief). PER CURIAM
Anthony and Diane Mastrofilippo ("plaintiffs") appeal an August 2, 2013 order (a) denying plaintiffs' motion to compel discovery, and (b) granting the Borough of Little Ferry (the "Borough"), Officer John Clark, Officer Samuel Aguilar, Sergeant James Walters, Lieutenant Scott Krai, Michael Capabianco, Gino Tedesco, Chief Ralph Verdi, and Detective Craig Hartless' (collectively referred to as the "Borough defendants") cross-motion for a protective order and dismissing Counts One, Two, Three, and Six of the complaint. Plaintiffs also appeal from an August 23, 2013 order (a) denying plaintiffs' motion to amend the complaint, and (b) granting the Borough defendants' cross-motion to dismiss the claims against them.
Because the orders under review resolved plaintiffs' claims against the Borough defendants only, and our review of the record indicates that the orders did not resolve Counts Four and Five of plaintiffs' complaint against defendant Angela Orozco, we dismiss the appeal as interlocutory.
Plaintiffs' counsel confirmed during oral argument that plaintiffs' claims against Orozco were not dismissed.
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The Rules that warrant dismissal of interlocutory appeals are clear. We consider appeals from final orders of a trial court and other orders expressly designated as final for purposes of appeal. R. 2:2-3(a)(1), (3). "To be a final judgment, an order generally must 'dispose of all claims against all parties.'" Janicky v. Point Bay Fuel, Inc., 396 N.J. Super. 545, 549-50 (App. Div. 2007) (quoting S.N. Golden Estates, Inc. v. Cont'l Cas. Co., 317 N.J. Super. 82, 87 (App. Div. 1998)). This "final judgment rule, reflects the view that piecemeal [appellate] reviews, ordinarily, are [an] anathema to our practice." Id. at 550 (alterations in original) (internal quotation marks and citations omitted).
If an order is not final, or among those orders expressly designated as final for purposes of appeal, a party must seek leave to appeal from the Appellate Division. R. 2:5-6(a). A grant of leave to appeal from an interlocutory order is left to the discretion of this court, and that discretion is exercised sparingly and "in the interest of justice." R. 2:2-3(b); R. 2:2-4; Janicky, supra, 396 N.J. Super. at 550. Here, plaintiffs did not seek leave to appeal from the orders.
It is clear that we will not decide an appeal from an interlocutory order merely because the appellant's notice of appeal mischaracterized the order, the respondent did not move to dismiss, or the appeal was "fully briefed." Vitanza v. James, 397 N.J. Super. 516, 519 (App. Div. 2008) (recognizing but declining to follow cases in which the court has granted leave to appeal nunc pro tunc even though the appeal was fully briefed on the ground that the practice invites disregard of the Rules).
We recognize that we may, in appropriate cases, grant leave to appeal nunc pro tunc. R. 2:4-4(b)(2); see, e.g., Yuhas v. Mudge, 129 N.J. Super. 207, 209 (App. Div. 1974) (granting leave to appeal nunc pro tunc "in the interest of prompt disposition of the matter[]"). However, such relief is not automatic and should not be presumed. In dismissing an appeal as interlocutory after it was fully briefed, we stated:
[I]f we treat every interlocutory appeal on the merits just because it is fully briefed, there will be no adherence to the Rules, and parties will not feel there is a need to seek leave to appeal from interlocutory orders. At a time when this court struggles to decide over 7,000 appeals a year in a timely manner, it should not be presented with piecemeal litigation and should be
reviewing interlocutory determinations only when they genuinely warrant pretrial review.A grant of leave to appeal nunc pro tunc "is most extraordinary relief . . . ." Frantzen v. Howard, 132 N.J. Super. 226, 227-28 (App. Div. 1975). This case does not warrant such relief.
[Parker v. City of Trenton, 382 N.J. Super. 454, 458 (App. Div. 2006).]
Appeal dismissed I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION