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McDade v. Siazon

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 2, 2009

MICHAEL MCDADE AND PAMELA MCDADE, PLAINTIFFS-RESPONDENTS,
v.
RODOLOFO SIAZON, AURORO SIAZON, COUNTY OF ATLANTIC, DEFENDANTS, AND EGG HARBOR TOWNSHIP MUNICIPAL UTILITY AUTHORITY, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, L-109-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 3, 2009

Before Judges Winkelstein and Chambers.

This is a personal injury action arising from an accident that occurred when plaintiff Michael McDade tripped over a sewer clean out pipe protruding from the sidewalk in Egg Harbor Township. Defendant Egg Harbor Township Municipal Utility Authority moved for summary judgment seeking to dismiss the complaint on the basis that plaintiff had not complied with the notice of claim provisions of the New Jersey Tort Claims Act, N.J.S.A. 59:8-8 and -9. The trial judge denied the motion by order dated April 25, 2008, setting forth his reasons in a written decision of that same date.

Although the trial court's order was interlocutory, defendant filed this appeal without obtaining leave of court to do so as required by Rule 2:2-3(b). An application for leave to appeal must be made in accordance with the procedures set forth in Rule 2:5-6 and will be granted only "in extraordinary cases and in the interest of justice." R. 2:2-3(b). These procedures were not followed here. We note that:

Piecemeal reviews, ordinarily, are anathema to our practice, as expressed in the rules which require the final disposition of all issues at one hearing on the trial level followed by orderly appellate review. The interruption of the litigation at the trial level, by the taking, as here, of an unsanctioned "appeal", disrupts the entire process and is wasteful of judicial resources.

[Frantzen v. Howard, 132 N.J. Super. 226, 227-28 (App. Div. 1975).] While a trial court's ruling on a motion to extend time to file a notice of tort claim pursuant to N.J.S.A. 59:8-9 is considered a final judgment for purposes of appeal, Rule 2:2-3(a)(3), a motion under that statute was not made in this case; this appeal involves the denial of a summary judgment motion, which is an interlocutory ruling.

The appeal is dismissed without prejudice to the issues in the appeal papers being raised in a proper appeal.

20090302

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