October 1, 2008
ELMWOOD TERRACE, INC., PLAINTIFF-RESPONDENT,
BRIAN KOCHMAN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Bergen County, LT-6547-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 11, 2008
Before Judges Gilroy and Chambers.
Defendant Brian Kochman, a tenant of plaintiff Elmwood Terrace, Inc., appeals from the Judgment of Possession entered against him under N.J.S.A. 2A:18-61.1(b) for being so disorderly as to disturb the peace and quiet of the other tenants. In this appeal, defendant alleges numerous procedural, evidentiary, and substantive errors on the part of the trial judge. Plaintiff disputes these contentions and also maintains that the appeal is untimely and must be dismissed. Our review of the record indicates that, indeed, this appeal was filed out of time. Accordingly, the appeal is dismissed.
We will first examine the rules governing the timeliness of an appeal of a final judgment. An appeal of a final judgment must be filed within forty-five days of the entry of the final judgment. R. 2:4-1(a). This time period may be extended upon motion only for a period of thirty days upon "a showing of good cause and the absence of prejudice." R. 2:4-4(a). Thus, the maximum period in which a party has to take an appeal from a final judgment, assuming an extension is granted, is seventy-five days.
The running of the time to appeal is tolled, however, by the filing of a motion for reconsideration or a motion for a new trial. R. 2:4-3(e). However, running of the time is tolled only if the motion is timely made. Ibid. Further, the period in which the time to appeal is tolled begins when the motion is timely filed and served and ends when the order is entered disposing of the motion. Ibid. A motion for a new trial must be served not later than twenty days after the court's decision is announced in a non-jury case. R. 4:49-1(b). A motion for reconsideration must be served not later than twenty days after service of the judgment or order being reconsidered. R. 4:49-2. These time periods in which to bring motions for a new trial or for reconsideration may not be enlarged. R. 1:3-4(c). Nor is the time to appeal tolled by motions brought for relief from a judgment or order under Rule 4:50-1. See R. 2:4-3(e) (rule does not list Rule 4:50-1 motions as among those tolling the time to appeal).
We will now briefly review the chronology of events relevant to the timeliness of the appeal and application of the tolling provisions under these rules. The final judgment of possession was entered on September 5, 2006. Thus, defendant's time to appeal began to run from this point. Defendant maintains that he was told by the Special Civil Part clerk's office that he could not file a motion until the warrant for possession had been processed and that the warrant for possession was not processed until September 27, 2006.
Defendant filed an order to show cause on September 28, 2006, seeking "relief from [the] Judgment based upon estoppel," contending that the landlord had accepted rent and was estopped from evicting him. In his cover letter to the court, defendant indicated that if this relief was denied, he "requests to move to vacate the judgment based upon, mistake, inadvertence, surprise, excusable neglect and newly discovered evidence, as well as fraud, misrepresentation and misconduct of the adverse party" and indicated that he was working on the motion. On October 4, 2006, the trial court rejected defendant's estoppel argument but granted a hardship stay.
On October 19, 2006, defendant filed a motion to vacate the judgment or, in the alternative, for a new trial. An order was entered on November 13, 2006, denying defendant's application to vacate the judgment or for a new trial. A motion for reconsideration of the motion to vacate the judgment was filed on January 19, 2007. That motion was denied on February 15, 2007. This appeal was filed on March 7, 2007.*fn1
Plaintiff argues that the time to appeal began to run on September 5, 2006, and because defendant never made any application to extend the time to appeal under Rule 2:4-4(a), he had the forty-five days allowed under Rule 2:4-1(a) to file an appeal. Thus, his time to appeal expired on October 20, 2006. To toll the running of the time to appeal, a motion for reconsideration or for a new trial should have been filed by September 25, 2006. Defendant filed his first application on September 28, 2006, which was too late. As a result, plaintiff maintains that the running of the time to appeal was not tolled by that motion. We agree.
However, even if we were to find that defendant's first application for reconsideration and a new trial was timely filed, the application was denied by order of November 13, 2006, and any tolling period would have ended on that date. Further, even if we were somehow to begin counting the forty-five days to appeal under Rule 2:4-1(a), from the date of the November 13, 2006 order and tack on an additional thirty day extension under Rule 2:4-4(a), despite the absence of an application, the total of seventy-five days still ran before this appeal was filed on March 7, 2007. The motion filed on January 19, 2007, to reconsider the motion to vacate, which is in essence a second motion for reconsideration, would not toll the time to file an appeal, since it was filed more than twenty days after the judgment of possession contrary to the requirements of Rule 4:49-2. Accordingly, this appeal must be dismissed as untimely.
We note that plaintiff's motion to dismiss this appeal as out of time was previously denied, and arguably that decision is the law of the case. However, the law of the case is a discretionary doctrine and not a rule of law. Franklin Med. Assocs. v. Newark Pub. Sch., 362 N.J. Super. 494, 512 (App. Div. 2003) (quoting Brown v. Twp. of Old Bridge, 319 N.J. Super. 476, 494 (App. Div.), certif. denied, 162 N.J. 131 (1999)). Upon review of the complete record, because the timeliness of the appeal goes to our jurisdiction, we are constrained to dismiss this appeal as it is out of time. See In re Hill, 241 N.J. Super. 367, 372 (App. Div. 1990) (citing Alberti v. Civil Serv. Comm'n, 41 N.J. 147, 154 (1963)).