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Ryan v. Long Beach Township

April 24, 2009


On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1510-08.

Per curiam.


Argued: April 1, 2009

Before Judges Fisher and C.L. Miniman.

On October 14, 2008, defendants Long Beach Township and Long Beach Township Beach Patrol appealed without our leave from a September 12, 2008, order denying their motion for summary judgment in lieu of an answer. Because we do not have appellate jurisdiction over the issues, the within appeal is dismissed.

Defendants' motion was predicated on the alleged failure of plaintiff Tice Ryan to file a timely notice of claim pursuant to the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3,*fn1 prior to filing his complaint alleging common law employment claims, including breach of an employment contract, the particulars of which are not relevant to our opinion. In the case information statement defendants filed on October 14, 2008, they answered "No" to the question, "Are there any claims against any party below, either in this or a consolidated action, which have not been [resolved]?" They certainly should have been aware that this answer was false because the complaint had not been dismissed. Furthermore, on October 17, 2008, defendants filed an answer to the complaint, and on October 21, 2008, they sought a stay from the trial court, which was denied on November 21, 2008. Nonetheless, they did not file an amended case information statement and correct their answer to this important jurisdictional question.

After plaintiff contended on appeal that jurisdiction was wanting, defendants urged that they could appeal as of right pursuant to Rule 2:2-3(a). That rule provides in pertinent part:

[A]ppeals may be taken to the Appellate Division as of right

(1) from final judgments of the Superior Court trial divisions . . . .

. . . . . . . An order granting or denying a motion to extend the time to file a notice of tort claim pursuant to N.J.S.A. 59:8-9, whether entered in the cause or by a separate action, shall also be deemed a final judgment of the court for appeal purposes. [Ibid.]

The rule was amended in September 2006 to include orders granting or denying motions to extend time under N.J.S.A. 59:8-9 within the definition of "final judgments" in response to Moon v. Warren Haven Nursing Home, 182 N.J. 507, 516-18 (2005) (referring the issue to the Civil Practice Committee for consideration of an amendment to Rule 2:2-3). See Pressler, Current N.J. Court Rules, comment 1.1 on R. 2:2-3 (2009) (noting that if the motion is made in a separate proceeding, the order would terminate that proceeding and be final for appeal purposes; but if it is made in the tort action, the order would be interlocu-tory; and so for public policy reasons, the Civil Practice Committee recommended that the order in either case be treated as a final judgment and the Supreme Court thereafter adopted the proposed amendment to the rule).

Of course, there was no motion made by plaintiffs for leave to file a late notice of tort claim. Plaintiff urges that Rule 2:2-3(a) has, thus, not been triggered with the denial of defendants' summary-judgment motion. Defendants respond that we should construe the order as though it was a denial of a motion for leave to file a late notice of tort claim because the judge considered the concepts of extraordinary circumstances and prejudice to the municipal defendants, both of which are factors to be considered by the court when it reviews such a motion. We decline to do so. The judge was very clear in his fact finding "that substantial compliance took place." He did not conclude that any of the circumstances were extraordinary and he did not conclude that defendants were not prejudiced. Appeals are taken from orders, not ruminations during oral argument. As a result, this appeal was filed improvidently; we do not have appellate jurisdiction and must dismiss.

We also decline to treat the notice of appeal as a motion for leave to appeal because it was filed more than twenty days after the entry of the order at issue, contrary to the requirements of Rule 2:5-6(a). See Vitanza v. James, 397 N.J. Super. 516, 518 (App. Div. 2008) ("The Rules are written to require uniformity as a means of providing equal justice. The time has come to enforce the Rules and not to decide an appeal merely because the respondent did not move to dismiss it and it was fully briefed."); Janicky v. Point Bay Fuel, Inc., 396 N.J. Super. 545, 549-50 (App. Div. 2007) ("Under R. 2:2-3(a)(1), an appeal as of right may be taken to the Appellate Division only from a final ...

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