SYLLABUS
(This syllabus is not part of the opinion of the Court. It has
been prepared by the Office of the Clerk for the convenience of the
reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not
have been summarized).
Argued November 8, 2004 -- Decided March 8, 2005
ZAZZALI, J., writing for a unanimous Court.
The Court considers whether an order granting a motion to file a late notice of claim under the New Jersey Tort Claims Act (TCA) is a final judgment from which a public entity may appeal as of right or an interlocutory judgment from which a party may appeal only in the discretion of the Appellate Division.
In December 2002, Roberta Smith fell from her bed and incurred a severe
subdural hematoma at the Warren Haven Nursing Home, which is owned and operated
by the County of Warren. Smith's daughter, Tammy Moon, and others (collectively, Moon)
claim that the nursing home's negligent failure to provide care and treatment and
its delay in transporting Smith to a hospital caused Smith's death. Pursuant to
N.J.S.A. 59:8-1 to –11, a plaintiff must file a notice of claim against
a public entity within ninety days of the accrual of the cause of
action. After the ninety-day period has expired, a plaintiff may seek leave from
the trial court to file a late notice of claim. This request must
be made within one year of the accrual of the claim and the
plaintiff must demonstrate extraordinary circumstances justifying the failure to timely file the notice.
In December 2003, Moon filed a notice of motion seeking leave to file
a late notice of claim, pursuant to N.J.S.A. 59:8-9. The trial court determined
that extraordinary circumstances existed and that the late filing was warranted in the
interest of justice. More specifically, the trial court found that Warran Haven either
intentionally or inadvertently delayed Moon's attempts to gain information concerning the circumstances surrounding
the death of her mother and may have misled her into thinking that
the State was conducting an investigation.
The County filed a notice of appeal, contending that the trial court's decision
was a final determination and therefore appealable as of right. Plaintiff filed a
motion to dismiss the appeal, arguing that the County could not appeal from
the interlocutory order because the Appellate Division had not granted the County leave
to do so. The Appellate Division agreed and dismissed the appeal. The panel
rejected the County's alternative argument that the Appellate Division should treat its appeal
as a motion for leave to appeal nunc pro tunc.
HELD : Because the trial court's order granting plaintiff's motion to file a late
notice of claim under the New Jersey Tort Claims Act resolves only the
first issue, and not all issues related to the cause of action, the
order is interlocutory and not final. It is, therefore, not appealable as of
right.
1. New Jersey's judicial system disfavors appellate review of issues relating to matters
still before the trial court. This policy of uninterrupted proceedings at the trial
level with a single and complete review has resulted in the requirement that
an appeal as of right will normally lie only from a judgment that
is final as to all issues and to all parties. Pursuant to Rule
2:2-3(a)(1), appeals may be taken to the Appellate Division as of right from
final judgments of the Superior Court trial divisions. Additionally, the Appellate Division may
grant leave to appeal, in the interest of justice, from an interlocutory order
of a court. R. 2:2-4. Here, the trial court's order does not dispose
of all issues as to all parties, but merely permits the litigation to
proceed. An order that does not finally determine a cause of action but
only decides some intervening matter pertaining to the cause, and which requires further
steps to enable the court to adjudicate the cause on the merits, is
interlocutory. (Pp. 5—7).
2. The Court adopts the holding in Murray v. Barnegat Lighthouse,
200 N.J.
Super. 534, 537 (App. Div. 1985) (order granting leave to file late notice
of claim under TCA is interlocutory because it did not dispose of all
the issues as to all the parties). The Court overrules Priore v. State,
190 N.J. Super. 127 (App. Div. 1983), which held that an order granting
leave to file a late notice of claim is final and appealable as
of right. The panel in Priori believed that such orders are final because
a claimant may or may not decide to institute suit after the required
six-month waiting period provided by N.J.S.A. 59:8-8. However, a late notice of claim,
followed by a six-month waiting period, is merely the first step a plaintiff
takes in pursuing its cause of action. A motion for leave to file
a late notice of claim is like any other pretrial motion that focuses
on a single issue; it is an intervening matter that does not resolve
the merits of the cause of action. When determining whether trial courts have
properly certified as final certain interlocutory orders relating to separable claims, our appellate
courts have not applied a strict definition of the term "claim" but instead
have focused on the legal right allegedly violated. Similarly, this Court will concentrate
on the legal right allegedly violated when determining whether a trial court has
resolved all issues as to all parties. Because the Court cannot conclude that
an order granting a plaintiff the opportunity to litigate its claims addresses the
legal right purportedly violated, the order is not a final adjudication of all
the issues as to all the parties. (Pp. 7—9).
3. Designating as interlocutory an order granting leave to file a late notice
of claim avoids piecemeal litigation. Appeals prior to and during trial waste the
time and resources of the court and the parties. A system allowing frequent
appeals before or during trial in many cases would result in the separate
adjudication of each issue by the trial court and the Appellate Division. The
more efficient approach is to continue to vest discretion in the Appellate Division
to decide when interlocutory review of non-final judgments is necessary. Not even defendant's
status as a protected public entity is sufficient to disregard that well-established policy
in this context. (Pp. 9—10).
4. The Court's holding also is consistent with the purposes of the notice
provision of the TCA, which include allowing the public entity at least six
months for administrative review with the opportunity to settle meritorious claims prior to
the bring of suit, providing the public entity with prompt notification of a
claim so that it can adequately investigate and prepare a defense, giving the
public entity a chance to correct the conditions that gave rise to the
claim, and informing the State in advance as to the liability it may
be expected to meet. By deeming these orders interlocutory, defendants are prohibited from
automatically appealing all orders granting motions that seek leave to file late notices
of claims. This fosters uninterrupted litigation and ensures that the judicial system will
not interfere with the administrative review and settlement process. To allow the State
to appeal as of right would have the opposite effect. (Pp. 10—11).
5. Finally, prolonged litigation is inimical to the public interest. Appellate review prior
to discovery would delay the advancement of the underlying tort claim indefinitely. The
postponement of discovery, motion practice and trial may allow witnesses' memories to fade
and evidence to be lost. Additionally, the taxpayers of New Jersey would bear
the increased financial burden that inevitably accompanies extended litigation. (Pp. 11—13).
6. Because there exist policy arguments in favor of treating orders granting the
filing of a late notice of claim as final for appeal purposes, the
Court refers this matter to its Civil Practice Committee for consideration. Until the
Committee acts and the Court approves its recommendation, the Court deems orders granting
leave to file late notices of claim under the TCA as interlocutory. (Pp.
13—17).
7. The Court affirms the Appellate Division's rejection of the County's alternative request
to treat its direct appeal as a timely motion for leave to appeal
nunc pro tunc. Such decisions rest within that court's sound discretion. (P. 17).
The judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE PORITZ and JUSTICES LaVECCHIA, ALBIN, WALLACE, and RIVERA-SOTO join in JUSTICE
ZAZZALI's opinion. JUSTICE LONG did not participate.
SUPREME COURT OF NEW JERSEY
TAMMY MOON, Individually and as Administratrix of the Estate of Roberta Smith,
Plaintiff-Respondent,
and
CHARLENE MICKALOWSKI and THOMAS HART,
Plaintiffs,
v.
WARREN HAVEN NURSING HOME and COUNTY OF WARREN,
Defendants-Appellants,
and
JOHN DOES/JANE DOES, fictitious Individuals/entities,
Defendants.
Argued November 8, 2004 – Decided March 8, 2005
On certification to the Superior Court, Appellate Division.
Nancy C. Gage, Assistant County Counsel, argued the cause for appellants (Joseph J.
Bell, Jr., Warren County Counsel, attorney).
Jeffrey M. Russo argued the cause for respondent.
Karen L. Jordan, Deputy Attorney General, argued the cause for amicus curiae, Attorney
General of New Jersey (Peter C. Harvey, Attorney General, attorney; Patrick DeAlmeida, Assistant
Attorney General, of counsel).
JUSTICE ZAZZALI delivered the opinion of the Court.
This appeal presents a procedural question concerning a public entity’s right to appeal
an order granting a motion to file a late notice of claim under
the New Jersey Tort Claims Act. We must determine whether such an order
is a final judgment from which a public entity may appeal as of
right or an interlocutory judgment from which a party may appeal only in
the discretion of the Appellate Division. For the reasons discussed below, we conclude
that the order in this matter is interlocutory.
The County of Warren owns and operates the Warren Haven Nursing Home. Tammy Moon and others (collectively the plaintiff) allege that in December 2002, Moon’s mother, Roberta Smith, fell from her bed at the nursing home and incurred a severe subdural hematoma. Plaintiff claims that the nursing home’s negligent failure to provide care and treatment, as well as its negligent delay in transporting Smith to the hospital, caused the death of plaintiff’s mother.
One year after Smith’s death, in December 2003, plaintiff filed a notice of motion seeking leave to file a late notice of claim, pursuant to N.J.S.A. 59:8-9, and a complaint against various defendants, including the nursing home and the County. To assert a claim against a public entity under the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:8-1 to -11, a plaintiff must file a notice of claim within ninety days of the accrual of the cause of action. N.J.S.A. 59:8-8. However, the TCA provides that, after the ninety day period has expired, plaintiffs may seek leave from the trial court to file a late notice of claim. N.J.S.A. 59:8-9. This request must be made within one year of the accrual of the claim, and plaintiff must demonstrate “reasons constituting extraordinary circumstances for his failure to file notice of claim within” the ninety-day period. Ibid.
At the conclusion of the hearing on plaintiff’s motion, the trial court determined that “extraordinary circumstances existed” and that the “interest of justice” warranted the late filing. More specifically, the trial court found that “Warren Haven, either intentionally or inadvertently, delayed the plaintiff’s attempts to gain information concerning the circumstances that surrounded the death of her mother . . . [and] may have misled the plaintiff[] in[to] thinking that the State was conducting an investigation.” The trial court then ordered that plaintiff be permitted to file a late notice of claim.
The County filed a notice of appeal from that order. In the notice, the County responded “yes” to the question: “Have all issues as to all parties been disposed of in this action in the trial court or agency?” In an accompanying civil case information statement, the County listed its primary proposed issue on appeal as the trial court’s abuse of discretion in granting plaintiff’s motion to file a late notice of claim.
The Clerk of the Appellate Division then wrote to the County and inquired “whether the determination being appealed [was] final.” The County replied that the order permitting the late notice of claim was a “final determination which is appealable as of right.” The County also requested, in the alternative, that the Appellate Division grant it leave to appeal nunc pro tunc. In reply, the Clerk of the Appellate Division informed the parties that it was “returning, unfiled, the [notice of appeal] as [the] computer docket [did] not show [that a] . . . final judgment, decision or action [had] yet been entered for which an appeal [could have been] filed.” However, the clerk also sent the parties a notice of docketing and a scheduling order that outlined a briefing schedule.
Plaintiff filed a motion to dismiss the docketed appeal, contending that the County could not appeal from the interlocutory order because the Appellate Division had not granted the County leave to do so. The Appellate Division agreed with plaintiff and, by order, dismissed the appeal. The court cited Murray v. Barnegat Lighthouse, 200 N.J. Super. 534, 537 (App. Div. 1985) (finding order granting leave to file late notice of claim under TCA interlocutory), in support of its determination that the appeal was interlocutory, not final. The panel also “reject[ed] the County’s alternative argument that [the Appellate Division] should treat its appeal as a motion for leave to appeal (R. 2:2-4; R. 2:5-6) nunc pro tunc.”
We then granted the County’s petition for certification. Moon v. County of Warren, 181 N.J. 286 (2004). The Attorney General of New Jersey, as amicus curiae, also filed a brief in support of the County’s argument that the order permitting the late filing of a notice of claim is final.
A half-century ago, Justice Brennan outlined the policy underlying restrained appellate review of issues relating to matters still before the trial court:
[O]ne of the fundamental underlying postulates of our present judicial system [is] that a judicial system better serves the public interest by uninterrupted trials than would be the case if final dispositions were suspended pending appellate review of intermediate action in the cause. We favor the . . . approach[] [that] “lays its stress upon the inconvenience and expense of piecemeal reviews and the strong public interest in favor of a single and complete trial with a single and complete review . . . .”
[Trecartin v. Mahony-Troast Constr. Co.,
21 N.J. 1, 5-6 (1956) (quoting In re
Appeal of Pa. R.R. Co.,
20 N.J. 398, 404 (1956)).]
Justice Brennan further cautioned that improvidently hearing appeals during the pendency of trial
court proceedings would “‘encourage an unseemly parade to the appellate courts and .
. . add to the time and expense of administration.’” Ibid. (quoting Dickinson
Indus. Site v. Cowan,
309 U.S. 382, 389,
60 S. Ct. 595, 599,
84 L. Ed. 819, 825 (1940)). More recently, Justice Clifford observed that, in
light of that policy, “[t]he emphasis in New Jersey upon an uninterrupted proceeding
at the trial level with a single and complete review has resulted in
the requirement that an appeal as of right will normally lie only from
a . . . judgment . . . that is final as to
all issues and to all parties.” Robert L. Clifford, Civil Interlocutory Appellate Review
in New Jersey, 47 Law & Contemp. Probs. 87, 88 (1984) (internal citations
omitted).
Although the remarks of Justices Brennan and Clifford arose in circumstances different from
those now before us, they provide context for our analysis.
Under our court rules, “appeals may be taken to the Appellate Division as of right . . . from final judgments of the Superior Court trial divisions.” R. 2:2-3(a)(1). Additionally, “the Appellate Division may grant leave to appeal, in the interest of justice, from an interlocutory order of a court . . . .” R. 2:2-4. In this matter, we hold that the trial court order granting a plaintiff’s motion to file a late notice of claim under the TCA is interlocutory and not final. It is, therefore, not appealable as of right. Several factors inform our conclusion.
First, and perhaps most fundamentally, this order does not dispose of all issues as to all parties, but merely permits the litigation to proceed. In Murray, supra, the Appellate Division explicitly held that an order granting leave to file a late notice of claim under the TCA was interlocutory because it did not dispose of all the issues as to all the parties. 200 N.J. Super. at 535; see also Escalante v. Tp. of Cinnaminson, 283 N.J. Super. 244, 247, n.1 (App. Div. 1995) (finding order granting leave to file late notice of claim interlocutory). By definition, an order that “does not finally determine a cause of action but only decides some intervening matter pertaining to the cause[,] and which requires further steps . . . to enable the court to adjudicate the cause on the merits[,]” is interlocutory. Black’s Law Dictionary 815 (6th ed. 1990).
The County relies on Priore v. State, 190 N.J. Super. 127, 129 (App. Div. 1983), for the proposition that the order is final and appealable as of right. There, the Appellate Division held that because “the claimant may or may not proceed with the institution of suit after the six month waiting period,” the order “granting leave to file a late notice of claim resolves the only issue in controversy.” Ibid. Because the motion presented a single issue for the trial court to review, upon resolution of that issue the trial court had disposed of all issues as to all parties.
Because the panel in Priore, supra, focused only on the effect of the trial court’s decision on the plaintiff’s motion rather than its relationship to the entire cause of action, we disagree with that holding. A late notice of claim, followed by a six-month waiting period, is merely the first step a plaintiff takes in pursuing its cause of action. Contrary to the panel’s characterization in Priore, a motion for leave to file a late notice of claim is like any other pretrial motion that focuses on a single issue; it is an intervening matter that does not resolve the merits of the cause of action. Although the motion pertains to the cause of action, it is not itself the cause of action by which plaintiffs seek redress for their injuries.
Moreover, when determining whether trial courts have properly certified as final certain interlocutory orders relating to separable claims, our appellate courts “have not applied a strict definition of the term ‘claim,’” but “[i]nstead . . . have focused on the legal right allegedly violated.” Clifford, supra, 47 Law & Contemp. Probs. at 89-90. Similarly, we will concentrate “on the legal right allegedly violated” when determining whether a trial court has resolved all issues as to all parties. Id. at 90. Because we cannot conclude that an order granting plaintiff the opportunity to litigate its claims addresses the legal right purportedly violated, the order is not a final adjudication of all the issues as to all the parties.
For the above reasons, we adopt the holding in Murray and overrule Priore to the extent that it contradicts our conclusion in this appeal.
Second, the conclusion that an order granting leave to file a late notice of claim is interlocutory avoids piecemeal litigation. We have stated before, and emphasize anew, that “we do not approve of piecemeal adjudication of controversies. Our rules . . . prohibit direct appeal unless final judgment has been entered disposing of all issues as to all parties.” Hudson v. Hudson, 36 N.J. 549, 552-53 (1962); see also Pressler, Current N.J. Court Rules, comment 2 to R. 2:2-3 (1999). Appellate courts avoid premature review of matters because “[t]he interruption of litigation at the trial level[,] by the taking of an unsanctioned appeal[,] disrupts the entire process and is wasteful of judicial resources.” CPC Int’l, Inc. v. Hartford Accident & Indem. Ins. Co., 316 N.J. Super. 351, 365 (App. Div. 1998), certif. denied, 158 N.J. 73 (1998). Additionally, appeals prior to and during trial waste the time and resources of the parties. A system allowing frequent appeals before or during trial in many cases would result in the separate adjudication of each issue by the trial court and the Appellate Division. The more efficient approach is to continue to vest discretion in the Appellate Division to decide when interlocutory review of non-final judgments is necessary. We find no special justification -- not even defendant’s status as a protected public entity -- sufficient to disregard that well-established policy in this context.
Third, our holding is consistent with the purposes of the notice provision of the TCA. In Beauchamp v. Amedio, we stated that the goals of the notice requirement are:
(1) to allow the public entity at least six months for administrative review with the opportunity to settle meritorious claims prior to the bringing of suit; (2) to provide the public entity with prompt notification of a claim in order to adequately investigate the facts and prepare a defense; (3) to afford the public entity a chance to correct the conditions or practices which gave rise to the claim; and (4) to inform the State in advance as to the indebtedness or liability that it may be expected to meet.
[
164 N.J. 111, 121-22 (2000) (internal quotation marks and citations omitted).]
Deeming the order interlocutory fosters uninterrupted litigation and ensures that the judicial system
will not interfere with the administrative review and settlement process. This is so
because it prohibits defendants from automatically appealing all orders granting motions that seek
leave to file late notices of claims. Allowing the State to appeal as
of right would have the opposite effect, and would thereby frustrate the first
goal of the TCA’s notice requirement.
Additionally, prolonged litigation is inimical to the public interest. Appellate review prior to
discovery would delay the advancement of the underlying tort claim indefinitely. The postponement
of discovery, motion practice, and trial may allow witnesses’ memories to fade and
evidence to be lost, compromising a fair adjudication on the merits. It would
also contravene our public policy disfavoring delay in a claimant’s ability to pursue
an action against a public entity. Moreover, the taxpayers of New Jersey would
bear the increased financial burden that inevitably accompanies extended litigation.
Finally, we note that because New Jersey modeled the TCA after the California
Tort Claims Act, California’s jurisprudence is instructive in this matter. See, e.g., Levin
v. County of Salem,
133 N.J. 35, 46 (1993). In Church v. County
of Humboldt,
57 Cal. Rptr. 79, 81 (1967), the California Court of Appeals
construed a provision similar to the one at issue here. It held:
[A] court ruling [a]llowing relief from the untimely filing of a claim[,] which
results in a requirement that an action on the claim be filed in
the same court within 30 days, is nothing more than a prelude to
further proceedings. It must therefore be regarded as interlocutory in nature, and not
appealable.
[Ibid.]
The California court explained that, for a judgment to be final, it must
“determine[] the merits of a controversy . . . and leave[] nothing for
future determination or consideration.” Ibid. Similarly, under New Jersey’s TCA, a plaintiff must
first file a notice of claim or receive permission to file a late
notice of claim. Then, plaintiff may file his or her suit “after the
expiration of six months from the date notice of claim is received,” but
not more than two years after the accrual of the claim. N.J.S.A. 59:8-8.
Like the California procedure, an order granting leave to file a late notice
of claim under the New Jersey TCA leaves something “for future determination or
consideration,” Church, supra, 57 Cal. Rptr. at 81, that is, the underlying claim.
Contrary to the County’s argument, it makes no difference that plaintiffs may or
may not file suit after the six-month period; a claim under the TCA
is like any other claim that may settle out-of-court and be voluntarily dismissed.
The order simply allows the litigation process to commence through informal discovery, pursuant
to the remaining guidelines set forth in the TCA. Because the trial court’s
decision resolves only the first issue, and not all issues related to the
cause of action, we conclude that the order granting leave to file a
late notice of claim is interlocutory and not final.
Although the above considerations lead us to conclude that the order granting the filing of a late notice of claim is interlocutory, we recognize that there exist other policy arguments in favor of treating such orders as final for appeal purposes. Because of those countervailing considerations, which we set forth below, we will refer this matter to our Civil Practice Committee for further consideration.
The County advances two policy arguments. First, the County maintains that allowing a public entity to appeal an order granting leave to file a late notice of claim would help reduce the financial burden of tort litigation on the public entity. The County and State argue that if a trial court erroneously finds extraordinary circumstances sufficient to warrant a late filing of a notice of claim, that decision should be reviewed as soon as reasonably possible to avoid trial and the accompanying costs. Without an opportunity for immediate review, the public entity would needlessly expend funds and time trying a case that would never have gone to trial had the order been properly denied. Moreover, the trial court would have wasted its resources in adjudicating the merits of the matter.
Second, because the TCA constitutes an exception to the general rule of sovereign immunity that public entities enjoy, treating the order as final for purposes of appeal is consonant with the TCA’s overall purpose. Providing a public entity with an immediate appeal ensures that the entity will have an additional opportunity to preserve its traditional immunity.
As context for our referral of this issue to the Civil Practice Committee, we make several observations concerning Rule 2:2-3(a), which governs interlocutory and final appeals.
That rule enumerates several types of trial court decisions that are interlocutory, but which the Appellate Division treats as final and appealable as of right:
Final judgments of a court, for appeal purposes, shall also include those referred to by R. 3:28(f) (order enrolling defendant into the pretrial intervention program over the objection of the prosecutor), R. 3:26-3 (material witness order), R. 4:42-2 (certification of interlocutory order), R. 4:53-1 (order appointing statutory or liquidating receiver), R. 5:8-6 (final custody determination in bifurcated matrimonial action), and R. 5:10-6 (order on preliminary hearing in adoption action.
[R. 2:2-3.]
The rule does not list a trial court order granting plaintiff leave to
file a late notice of claim. To be sure, the list is not
exhaustive. Pressler, Current N.J. Court Rules, comment on R. 2:2-4 (2005) (discussing R.
2:2-3(a)). To foster debate about whether we should add orders granting a motion
to file a late notice of claim to that list, we refer the
matter to our Civil Practice Committee. Indeed, at oral argument, the Attorney General,
as amicus, suggested that if the State’s view did not prevail in this
appeal, it would be “wise” to amend the Rule.
For further guidance to the Committee, we note that, with the exception of
certifications of interlocutory orders, there appears to be a common rationale for deeming
the orders enumerated in Rule 2:2-3 final: avoiding situations in which a party
will be substantially prejudiced if an immediate appeal is not allowed. For example,
in the case of an order pursuant to a preliminary hearing in an
adoption action, Rule 5:10-6, “[t]he self-evident purpose of th[e] provision [i]s to avoid
any untoward delay in the disposition of contested adoption disputes,” in which both
the interests of the parents and children are at stake. Pressler, Current N.J.
Court Rules, comment on R. 5:10-6 (2005) (emphasis added). A final custody determination
under Rule 5:8-6 likewise affects, immediately, the status of the family and, in
particular, the best interests of the children. Similarly, Rules 4:53-1 and 2:2-3(a) treat
orders appointing statutory receivers as final because they substantially affect the interests of
stockholders, officers, and directors. See Rothman v. Harmyl Inn, Inc.,
61 N.J. Super. 74, 84 (App. Div. 1960) (holding order final because its effect “was the
complete crippling of the exercise of corporate functions” by anyone other than appointed
receiver).
Finally, a prosecutor may appeal as a matter of right an order enrolling
a criminal defendant into pretrial intervention (PTI) over the objection of the prosecutor,
pursuant to Rule 3:28(f). Such an order is appealable as a matter of
right because it alters the criminal justice process and has the potential to
harm both parties. Prompt review of a trial court’s rejection of the prosecutor’s
recommendation ensures that the defendant has not been inappropriately released to PTI when
he or she should have been prosecuted.
We do not presume to identify all of the considerations that the Committee
should examine in making its recommendations. We leave to the Committee’s judgment the
task of evaluating relevant factors, including the policy arguments discussed in this opinion;
the impact that any change will have on plaintiffs and public entities; whether
the rationale of Rule 2:2-3 applies to orders granting leave to file late
notices of claims under the TCA; and any other policy concerns the Committee
may have. Finally, because principles of judicial economy also must inform the Committee’s
recommendation, it should consider the impact of an amendment to the rule on
the Appellate Division.
Until the Committee acts and we approve its recommendation, we deem such orders
to be interlocutory.
The Appellate Division rejected the County’s alternative request to treat its direct appeal as a timely motion for leave to appeal nunc pro tunc. The decision to grant or deny such a request rests within the sound discretion of the Appellate Division. We thus affirm that holding. Medcor, Inc. v. Finley, 179 N.J. Super. 142, 144-45 (App. Div. 1981) (concluding that Appellate Division has discretion to grant leave to appeal nunc pro tunc when party fails to seek leave to appeal interlocutory order).
Because the panel properly dismissed the County’s appeal, we affirm the judgment of the Appellate Division.
CHIEF JUSTICE PORITZ and JUSTICES LaVECCHIA, ALBIN, WALLACE, and RIVERA-SOTO join in JUSTICE ZAZZALI’s opinion. JUSTICE LONG did not participate. SUPREME COURT OF NEW JERSEY
NO. A-23 SEPTEMBER TERM 2004
ON CERTIFICATION TO Appellate Division, Superior Court
TAMMY MOON, Individually and
as Administratix of the
Estate of Roberta Smith,
Plaintiff-Respondent,
v.
WARREN HAVEN NURSING HOME and
COUNTY OF WARREN,
Defendants-Appellants.
DECIDED March 8, 2005
Chief Justice Poritz PRESIDING
OPINION BY Justice Zazzali
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
CHECKLIST