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Fleischer v. Colon

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 13, 2009

BARBARA H. FLEISCHER AND MICHAEL GINN, CUST. EDEN GINN, UNIF. TRAN. MIN. ACT PA, PLAINTIFFS-RESPONDENTS,
v.
ROSE E. COLON A/K/A ROSE COLON, AND THE STATE OF NEW JERSEY, DEFENDANTS, AND KIM-AHN NGUYEN, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Monmouth County, Docket No. F-3115-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 3, 2009

Before Judges Winkelstein, Gilroy and Chambers.

On February 1, 2007, plaintiffs Barbara H. Fleischer and Michael Ginn, as custodians of Eden Ginn, Uniform Transfer to Minor Act of Pennsylvania, filed a complaint seeking to foreclose on a mortgage dated April 26, 2004, executed by defendant Rose E. Colon a/k/a Rose Colon, affecting property known and designated as Lot 3, Block 151, Marlboro Township, New Jersey. The complaint named Kim-Ahn Nguyen a defendant in the action as the holder of two mortgages, a judgment lien, and two UCC financing statements, all affecting the mortgaged property. On May 24, 2007, Nguyen filed an answer to the complaint and counterclaimed asserting that plaintiffs' mortgage was null and void.

In October 2007, plaintiffs filed a motion for summary judgment seeking to strike Nguyen's answer and counterclaim. On February 21, 2008, the trial court entered an order granting the motion. On March 12, 2008, Nguyen filed a motion for reconsideration of the February 21, 2008 order. On May 23, 2008, the court entered an order denying the motion for reconsideration. On July 7, 2008, Nguyen filed a notice of appeal from the May 23, 2008 order. We dismiss the appeal.

A party can only appeal as a right to the Appellate Division from a final judgment of the trial court. R. 2:2-3(a); Janicky v. Pt. Bay Fuel, Inc., 396 N.J. Super. 545, 549 (App. Div. 2007). For an order to qualify as a final order for purpose of appeal, the order must "dispose of all claims against all parties." Id. at 549-50 (quoting S.N. Golden Estates, Inc. v. Cont'l Cas. Co., 317 N.J. Super. 82, 87 (App. Div. 1998)). Because the May 23, 2008 order did not dispose of all claims as to all parties, the order is interlocutory.*fn1

Absent certain exceptions not applicable here, see R. 2:2-3(a)(3), interlocutory adjudications are appealable only on leave granted pursuant to Rule 2:5-6. Granting leave to appeal from an interlocutory order is within our exclusive authority as an exercise of our discretion "in the interest of justice . . . ." R. 2:2-4. Because judicial policy favors "a single and complete trial with a single and complete review," Grow Co. v. Chokshi, 403 N.J. Super. 443, 457 (App. Div. 2008) (quoting Trecartin v. Mahoney-Troast Constr. Co., 21 N.J. 1, 6 (1956)), the grant of interlocutory review is 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)).

In this matter, leave to appeal was neither sought, nor obtained. Although the parties have filed briefs on the merits of the appeal and plaintiff did not move to dismiss the appeal, we do not determine any "extraordinary circumstances" justifying the grant of leave to appeal nunc pro tunc. Caggiano v. Fontoura, 354 N.J. Super. 111, 122 (App. Div. 2002). "[I]f we treat every interlocutory appeal on the merits just because it is fully briefed, there will be no adherence to the Rules, and parties will not feel there is a need to seek leave to appeal from interlocutory orders." Parker v. City of Trenton, 382 N.J. Super. 454, 458 (App. Div. 2006).

Appeal dismissed.


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