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Breza v. Peter Giancola & Sons, Inc.

Superior Court of New Jersey, Appellate Division

May 29, 2013

PAUL BREZA AND JOANNE BREZA, Plaintiffs-Appellants,
v.
PETER GIANCOLA & SONS, INC., GREG COSTA and VINCE COSTA, Defendants, and BRIARWOOD HOMEOWNERS ASSOCIATION, Defendant-Respondent.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 5, 2013

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-0167-09.

Evan J. Lide argued the cause for appellant Paul Breza (Stark & Stark, attorneys; Lara R. Lovett and J. Robert Bratman, of counsel and on the brief).

David B. Wright argued the cause for respondent (Amy F. Loperfido & Associates, attorneys; Mr. Wright, on the brief).

Before Judges Ostrer and Kennedy.

PER CURIAM

Plaintiffs appeal from the denial of their motion to reconsider the Law Division's grant of summary judgment in favor of defendant Briarwood Homeowners Association (BHA) dismissing their complaint seeking damages for personal injuries suffered by plaintiff Paul Breza.[1] Plaintiff argues that BHA "created the dangerous condition" that caused plaintiff's injury and that the motion court erred in determining that BHA had no notice of the condition.

I.

Before discussing the merits of plaintiff's legal arguments, we clarify what is cognizable on appeal and what is not. Plaintiff only appealed from the denial of the motion for reconsideration and has specifically argued that, "[t]he trial court erred when it denied plaintiff's motion for reconsideration of the February 22, 2011 order granting summary judgment in defendant's favor." Consequently, our review is limited solely to that order.

Rule 2:5-1(f)(3)(A) provides that "[i]n civil actions the notice of appeal . . . shall designate the judgment, decision, action or rule, or part thereof appealed from . . . ." "[I]t is clear that it is only the judgments or orders or parts thereof designated in the notice of appeal which are subject to the appeal process and review." Pressler & Verniero, Current N.J. Court Rules, comment 6.1 on R. 2:5-1 (2013). See, e.g., 30 River Court East Urban Renewal Co. v. Capograsso, 383 N.J.Super. 470, 473-74 (App. Div. 2006) (refusing to review orders dismissing the defendant's affirmative claims because they were not included in the notice of appeal); Campagna ex rel. Greco v. Am. Cyanamid Co., 337 N.J.Super. 530, 550 (App. Div.) (refusing to consider an order not listed in the notice of appeal), certif. denied, 168 N.J. 294 (2001).

"Consequently, if the notice [of appeal] designates only the order entered on a motion for reconsideration, it is only that proceeding and not the order that generated the reconsideration motion that may be reviewed." Pressler & Verniero, supra, comment 6.1 on R. 2:5-1. We have so held in a number of cases. See, e.g., W.H. Industries, Inc. v. Fundicao Balancins, Ltd., 397 N.J.Super. 455, 458 (App. Div. 2008) (considering only the order denying reconsideration because it was the only order designated in the notice of appeal); Fusco v. Bd. of Educ. of City of Newark, 349 N.J.Super. 455, 461-62 (App. Div.) (reviewing only denial of the plaintiff's motion for reconsideration and refusing to review the original grant of summary judgment because that order was not designated in the notice of appeal), certif. denied, 174 N.J. 544 (2002).

The denial of a motion for reconsideration rests within the sound discretion of the trial judge. Fusco, 349 N.J.Super. at 462. "Motions for reconsideration are granted only under very narrow circumstances." Ibid. We have long recognized that:

Reconsideration should be used only for those cases which fall into that narrow corridor in which either (l) the Court has expressed its decision based upon a palpably incorrect or irrational basis, or (2) it is obvious that the Court either did not consider, or ...

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