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Tucci v. Northeast Hospitality Properties

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 13, 2008

PETER A. TUCCI, SR., PLAINTIFF-RESPONDENT,
v.
NORTHEAST HOSPITALITY PROPERTIES AND NORTHEAST HOSPITALITY PROPERTIES, LLC, DEFENDANTS-APPELLANTS.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-2378-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 30, 2008

Before Judges Cuff and Lisa.

In 1958, plaintiff as landlord and defendants as tenants entered into a ninety-nine year commercial lease of property in Burlington County, which defendants operated as a Howard Johnson's Motel. Plaintiff brought a summary dispossess action in the Special Civil Part, which resulted in a judgment for possession entered in plaintiff's favor on July 21, 2006. Although defendants filed an appeal from that judgment, the appeal was dismissed for lack of prosecution. On August 17, 2006, plaintiff filed his complaint in this litigation seeking monetary damages on various grounds, including for waste and unpaid rent. On January 9, 2007, defendants filed an answer and three-count counterclaim, seeking damages for unlawful dispossession, trespass, and tortious interference with their contractual relations under a management agreement with a third party.

Plaintiff moved to dismiss the counterclaim pursuant to Rules 4:6-2 and 4:46-2. Oral argument was conducted on March 2, 2007, and on June 5, 2007, the trial court issued an order granting plaintiff's motion and dismissing in its entirety and with prejudice defendants' counterclaim. The order provided: "The dismissal of all counterclaims is hereby certified as final within the meaning of and pursuant to R. 4:42-2." The action on plaintiff's complaint remains pending in the Law Division.

On July 18, 2007, defendants filed a notice of appeal from the judgment certified by the trial court to be final pursuant to Rule 4:42-2. See R. 2:2-3(a)(1). The certification of finality rule creates an exception to the general rule that in order to constitute a final judgment a trial court order must "dispose of all claims against all parties." See S.N. Golden Estates, Inc. v. Cont'l Cas. Co., 317 N.J. Super. 82, 87 (App. Div. 1998). In the absence of a final judgment, a litigant has no right to appeal, and we will review an interlocutory order only by leave granted. See R. 2:2-4.

The finality certification rule requires, among other things, that the "order would be subject to process to enforce a judgment pursuant to R. 4:59 if it were final." R. 4:42-2. The order before us did not award defendants monetary or other affirmative relief, and, of course, is not an order that would entitle a party to execution pursuant Rule 4:59. This is a classic interlocutory order. It does not fit within the framework of Rule 4:42-2. Certification of finality was improvidently ordered by the trial court.

We decline to treat defendants' notice of appeal as a motion for leave to appeal and to grant the motion nunc pro tunc. Piecemeal review of trial court orders is contrary to the overriding judicial policy favoring uninterrupted proceedings in the trial court with a single and complete review upon a full record. State v. Reldan, 100 N.J. 187, 205 (1985). Leave to appeal interlocutory orders is only sparingly granted in the interest of justice. Ibid.; R. 2:2-4. We perceive no basis upon which that standard is met here.

The appeal is dismissed as interlocutory.

20080513

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