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Chen v. Castro


October 24, 2008


On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5833-03.

Per curiam.


Submitted September 23, 2008

Before Judges Collester and Graves.

In this automobile negligence action, plaintiff Hui Chen appeals from an order dated November 3, 2006, which was entered after three days of jury trial. The order granted defendant's motion for a mistrial and ordered plaintiff's attorney, Feng Li, to pay defendant's litigation costs and counsel fees in the total amount of $7375. The order states that no retrial shall occur until such time as the sum is paid, and it provides that plaintiff's attorney "shall not obtain reimbursement from plaintiff." Because the order does not dispose of all claims between the parties, and we have not granted leave to appeal pursuant to Rule 2:2-4, we dismiss the appeal as interlocutory.

"Under 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 (App. Div. 2007) (quoting S.N. Golden Estates, Inc. v. Cont'l Cas. Co., 317 N.J. Super. 82, 87 (App. Div. 1998)). In the present matter, the order granting a mistrial and awarding counsel fees and costs is not appealable as of right because it "does not finally determine [plaintiff's] cause of action." Moon v. Warren Haven Nursing Home, 182 N.J. 507, 512 (2005); see D'Oliviera v. Micol, 321 N.J. Super. 637, 640 (App. Div. 1999) ("There is no question but that an order granting a new trial as to one or more parties is interlocutory since it does not dispose of all issues as to all parties.").

Ordinarily, there is no right to appeal from interlocutory orders. R. 2:2-3(a). Appeals respecting interlocutory orders are generally governed by Rule 2:2-4, which provides that "the Appellate Division may grant leave to appeal, in the interest of justice, from an interlocutory order of a court." In order to secure leave to appeal, a litigant must comply with Rule 2:5-6(a), which requires the filing of a notice of motion for leave to appeal within twenty days of the service of the order.

It is well established that "[t]he grant of interlocutory review is'highly discretionary' and'customarily exercised only sparingly.'" Vitanza v. James, 397 N.J. Super. 516, 517 (App. Div. 2008) (quoting State v. Reldan, 100 N.J. 187, 205 (1985)). Furthermore, "[i]t is the exclusive prerogative of this court to determine whether extraordinary circumstances are present warranting a piecemeal appeal." Edwards v. McBreen, 369 N.J. Super. 415, 420 (App. Div. 2004).

In this case, the order entered on November 3, 2006, is not appealable as of right because it does not adjudicate plaintiff's cause of action. Moreover, leave to appeal, which was neither sought nor obtained, is not warranted. See Parker v. City of Trenton, 382 N.J. Super. 454, 458 (App. Div. 2006) ("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 warrant pretrial review."). Consequently, any further review must await the entry of a final determination disposing of all issues between the parties, and the timely filing of a proper notice of appeal from that final order or judgment.

The appeal is dismissed.


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