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Gilkin v. Board of Chosen Freeholders for Gloucester County

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 9, 2008

SHERRY GILKIN, PLAINTIFF-APPELLANT,
v.
BOARD OF CHOSEN FREEHOLDERS FOR GLOUCESTER COUNTY, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, L-2016-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 1, 2008

Before Judges Coburn and Chambers.

Plaintiff appeals from an order of March 23, 2007, designated "Final Order and Judgment." That order was issued after plaintiff agreed to withdraw her Law Against Discrimination ("LAD") claim in exchange for defendant's agreement to waive the statute of limitations if plaintiff filed the action again. In other words, if we affirm the trial court's March 2, 2007, order denying reconsideration of a January 24, 2007, motion granting partial summary judgment to defendant, the plaintiff could file a "new [LAD claim] under a new docket number."

Pursuant to Rule 2:2-3(a)(1), "an appeal as of right may be taken to the Appellate Division only from a 'final judgment.' 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) (quotation and citation omitted). Likewise, under Rule 2:2-3(a)(1) certain "limited categories of orders . . . do not dispose of all claims against all parties as 'final judgments.'" Id. at 550. One such order is under Rule 4:42-2, which provides that an order can be certified as final "only if it satisfies two preconditions: first, it must fall within one of the three numbered subparts of the rule, and second, it must be 'subject to process to enforce a judgment pursuant to R. 4:59 if it were final[.]'" Ibid. (citing R. 4:42-2).

As the purpose of Rule 4:42-2 is "to permit execution on a partial summary judgment fully adjudicating a separable claim for affirmative relief . . .," ibid. (quotation and citation omitted), "a party may not seek a finality certification to bypass this court's exclusive authority to determine whether to grant leave to appeal an interlocutory order," id. at 551 (citation omitted). The consequence of improperly using a finality certification is that this court will vacate the certifications if not in incompliance with Rule 4:42-2, which is, in part, because of this court's "repeated[] disapprov[al] of litigants' attempts to use Rule 4:42-2 as a device to secure appellate review of an interlocutory order without moving for leave to appeal." Ibid. (citation omitted).

As the lower court's determination of the issues did not constitute one of the three subparts of Rule 4:42-2(1), namely that there was not "a complete adjudication of a separate claim," R. 4:42-2(1), "a complete adjudication of all rights and liabilities asserted . . . asserted as to any party," R. 4:42-2(2), or "a partial summary judgment or other order for payment of part of a claim . . .," R. 4:42-2(3), the order did not satisfy the first precondition of certification of a final judgment. See Janicky, supra, 396 N.J. Super. at 552.

For these reasons, we dismiss plaintiff's appeal as interlocutory.

20080409

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