Huny & Bh Associates Inc v. Avi Silberberg ( 2016 )


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  •                     NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-4569-15T1
    HUNY & BH ASSOCIATES INC.,
    DANIEL WEINGARTEN, HILLEL
    WEINGARTEN 2013 TRUST, URI
    WEINGARTEN 2013 TRUST, NATAN             APPROVED FOR PUBLICATION
    WEINGARTEN 2013 TRUST and THE
    YAEL SILBERBERG 2012 APPOINTED              December 2, 2016
    TRUST,
    APPELLATE DIVISION
    Plaintiffs-Respondents,
    v.
    AVI SILBERBERG,
    Defendant/Third-Party
    Plaintiff-Appellant,
    and
    YAEL SILBERBERG, YAFFA SILBERBERG
    INTERESTED PARTIES, HARBINA
    MANAGEMENT COMPANY and THOMAS J.
    HERTEN ESQ.,
    Defendants,
    and
    YAEL SILBERBERG,
    Defendant/Third-Party
    Plaintiff,
    v.
    SIMA WEINGARTEN, EARL SMITH and
    BEFFIE YURMAN,
    Third-Party Defendants-
    Respondents,
    and
    DARLENE FISHER, JUDY SPERO,
    SHERA TUCHMAN and GAYA BERNSTEIN,
    Third-Party Defendants.
    ________________________________________
    Submitted November 28, 2016 – Decided December 2, 2016
    Before Judges Fisher, Ostrer             and   Leone
    (Judge Fisher dissenting).
    On appeal from the Superior Court of New
    Jersey, Law Division, Bergen County, Docket
    No. L-10677-15.
    Avi Silberberg, appellant pro se.
    Kraemer    Burns,    P.A.,    attorneys    for
    respondents   Daniel   Weingarten   and   Sima
    Weingarten; and Lowenstein Sandler LLP,
    attorneys   for   respondents    HUNY   &   BH
    Associates   Inc.,   Yael   Silberberg    2012
    Appointed Trust, Hillel Weingarten 2013
    Trust, Uri Weingarten 2013 Trust, Natan
    Weingarten 2013 Trust, Earl Smith and Beffie
    Yurman (John A. Avery, David L. Menzel,
    Jeffrey J. Wild and Natalie F. Dallavalle,
    on the joint brief).
    The opinion of the court was delivered by
    OSTRER, J.A.D.
    We   have   before   us   the   motion   of   various   plaintiffs-
    respondents and third-party-defendants-respondents to dismiss an
    2                           A-4569-15T1
    appeal as interlocutory.1         In response, defendant Avi Silberberg
    contends he is entitled to an appeal as of right from the trial
    court's May 27, 2016 order denying his motion to intervene on
    behalf   of    himself    doing   business        as     "Right    Time,"   a    sole
    proprietorship in New York.         Mr. Silberberg contends his motion
    to intervene was as of right, pursuant to Rule 4:33-1, and,
    consequently, the denial of the motion was final and appealable
    as of right.       He also seeks to appeal as of right the court's
    subsequent order on June 17, 2016, imposing monetary sanctions
    upon him.        This multi-party case remains pending before the
    trial court, which was scheduled to commence trial October 31,
    2016.    Having considered the motion in light of the record and
    applicable principles of law, the appeal is dismissed.
    Our     Rules   are     intended       to    limit        interlocutory     and
    fragmentary appeals that would delay the disposition of cases
    and clog our courts.           In re Pa. R.R. Co., 
    20 N.J. 398
    , 408
    (1956); see also Brundage v. Estate of Carambio, 
    195 N.J. 575
    ,
    599 (2008) (referring to "our general policy against piecemeal
    review of trial-level proceedings").                   Appeals as of right from
    the   Superior    Court     generally    may      be    taken     only   from   final
    1
    They include: Plaintiffs Daniel Weingarten, HUNY & BH
    Associates, Inc., Hillel Weingarten 2013 Trust, Uri Weingarten
    2013 Trust, Natan Weingarten 2013 Trust, and The Yael Silberberg
    2012   Appointed   Trust,   and   third-party   defendants  Sima
    Weingarten, and trustees Earl Smith and Beth Yurman.
    3                                  A-4569-15T1
    judgments.      R.   2:2-3(a)(1).     Final judgments are those that
    adjudicate "all issues as to all parties."               Silviera-Francisco
    v. Bd. of Educ. of Elizabeth, 
    224 N.J. 126
    , 136 (2016).
    We recognize that our court has previously declared that
    "an order denying intervention has been deemed to be final."
    Grober v. Kahn, 
    88 N.J. Super. 343
    , 360 (App. Div. 1965), rev'd
    on other grounds, 
    47 N.J. 135
     (1966).               But the view is not
    universally accepted.         See Gov't Sec. Co. v. Waire, 
    94 N.J. Super. 586
    , 588-89 (App. Div.) (without reference to Grober,
    characterizing       as   interlocutory    an   appeal    from     denial    of
    intervention where appellant had "absolute right to intervene"),
    certif. denied, 
    50 N.J. 84
     (1967).         See also Savage v. Weissman,
    
    355 N.J. Super. 429
    , 435 (App. Div. 2002) (contrasting Grober
    and Gov't Sec. Co.).
    Notably, the denial of a permissive motion to intervene has
    been   deemed   interlocutory,      requiring   a   motion   for    leave    to
    appeal.    Savage, 
    supra,
     
    355 N.J. Super. at 435
    .                Grober would
    thus   create   a    dichotomy   between    motions   denying      permissive
    intervention and motions denying intervention as of right.                  The
    Grober court acknowledged this potential distinction explicitly
    in its discussion.        Grober, supra, 
    88 N.J. Super. at 360
    .
    We are unpersuaded that it is consistent with New Jersey
    practice and policy to treat the denial of a motion to intervene
    4                              A-4569-15T1
    as of right as final and appealable as of right.                               The as-of-
    right-vs.-permissive     dichotomy         creates          a   problematic      two-part
    evaluation for the reviewing court.                As a threshold matter, the
    court must reach the merits of the appeal from the intervention
    denial — that is, whether there was a right to intervention.
    Only after this evaluation may the court decide whether there
    was a right to appeal.      Since both forms of motions to intervene
    merely   resolve   one   issue        as   to    one    party,      it    is    far   more
    sensible to treat both as interlocutory.
    The     Grober       court         relied          on       federal        precedent.
    Specifically, Grober relied on State by McLean v. Lanza, 
    60 N.J. Super. 130
     (App. Div. 1959), aff'd on other grounds, 
    39 N.J. 595
    (1963), and both Grober and Lanza referred to Brotherhood of
    Railroad Trainmen v. Baltimore & Ohio Railroad Co., 
    331 U.S. 519
    , 
    67 S. Ct. 1387
    , 
    91 L. Ed. 1646
     (1947).                        Grober also found
    support in Dickinson v. Petroleum Conversion Corp., 
    338 U.S. 507
    , 513, 
    70 S. Ct. 322
    , 325, 
    94 L. Ed. 299
    , 303 (1950) ("We
    have held that an order denying intervention to a person having
    an absolute right to intervene is final and appealable.").
    We    are   unpersuaded      by    the      rationale        behind   the     federal
    approach.   The rule is based on a concern that, if a proposed
    intervenor cannot immediately appeal the denial of a motion to
    intervene as of right, then he or she would be forever precluded
    5                                     A-4569-15T1
    from securing review at the close of the case as he would lack
    status as a party.           See Bhd. of R.R. Trainmen, 
    supra,
     
    331 U.S. at 524
    , 
    67 S. Ct. at 1389
    , 
    91 L. Ed. at 1650
    .                                Federal courts
    continue to follow this reasoning.                    See e.g., Williams v. Katz,
    
    23 F.3d 190
    ,    191       (7th    Cir.       1994).         But    a     party     denied
    intervention as of right in New Jersey would not necessarily
    lack standing to prosecute an appeal at the end of the case
    under Rule 2:2-3.           After all, an unsuccessful intervenor would
    have the status similar to a party who was dismissed at some
    point during the course of the litigation, for example, on a
    motion for partial summary judgment.                         See Silviera-Francisco,
    supra, 224 N.J. at 136.
    Furthermore, it is unclear whether the federal approach has
    the same impact on trial court proceedings as would an appeal as
    of right in our system.                Under Rule 2:9-1, an appeal as of right
    from the denial of a motion to intervene as of right would then
    vest    control      of   the    proceedings         in     our   court      and   generally
    divest    the   trial       court      of   jurisdiction          to    act.       In    short,
    recognizing a right of appeal would mean recognizing the right
    to halt proceedings in the trial court, absent further order of
    our court.        By contrast, it appears that the federal court's
    recognition of a right to appeal from a denial of a motion to
    intervene would not necessarily halt the progress of the ongoing
    6                                        A-4569-15T1
    litigation.       See Apostol v. Gallion, 
    870 F.2d 1335
    , 1338 (7th
    Cir. 1989) ("[A]n appeal of a collateral order does not disrupt
    the litigation in the district court."); Valley Ranch Dev. Co.
    v. Fed. Deposit Ins. Corp., 
    960 F.2d 550
    , 555 (5th Cir. 1992)
    ("[A]    denial    of    intervention      is    immediately        appealable        as   a
    collateral order.").
    Moreover, even federal doctrine provides that if a party is
    already involved in the litigation and will have standing to
    seek appellate review notwithstanding the denial of the motion
    to    intervene,        then    the     denial       shall    not    be    treated         as
    immediately appealable.               See Carlough v. Amchem Prods., 
    5 F.3d 707
    , 712 (3d Cir. 1993) ("[A]nyone who is involved in an action
    sufficiently      to     have    a      right    of     appeal      from   its        final
    disposition does not have an immediate right of appeal from a
    denial     or   partial        denial     of     intervention.").             See      also
    Stringfellow v. Concerned Neighbors in Action, 
    480 U.S. 370
    , 
    107 S. Ct. 1177
    , 
    94 L. Ed. 2d 389
     (1987); 6 James W. Moore, et al.,
    Moore's Federal Practice – Civil § 24.24 (3d ed. 2016) ("If a
    movant is not technically a party, but is involved in an action
    sufficiently to have a right to appeal its final disposition,
    the movant may not immediately appeal denial of a motion to
    intervene.").        Inasmuch as Mr. Silberberg is already a party to
    the     litigation      and    will     have     a    right    to    appeal      at    its
    7                                     A-4569-15T1
    conclusion, he may not appeal as of right the denial of the
    motion to intervene on behalf of his sole proprietorship.
    Mr. Silberberg does not dispute that the sanctions order is
    interlocutory.    His argument that it is appealable as of right
    is meritless.    R. 2:11-3(e)(1)(E).
    Appeal dismissed.
    8                          A-4569-15T1
    FISHER, P.J.A.D., dissenting.
    I concur with and join in my colleagues' determination that
    there   exists     no   right    to   appeal     the     denial   of   a    motion   to
    intervene as of right. I write separately, however, because the
    motion before us seeks dismissal of the proposed intervenor's
    notice of appeal and, rather than dismiss, I would grant leave
    to appeal to consider the merits of the interlocutory appeal.                         I
    would do that for two essential reasons.
    First, when the notice of appeal was filed, the proposed
    intervenor had a good faith basis for believing he was entitled
    to appeal as of right.           See Grober v. Kahn, 
    88 N.J. Super. 343
    ,
    360    (App.   Div.     1965),   rev’d      on   other      grounds,   
    47 N.J. 135
    (1966). Now that we have concluded otherwise, we should exercise
    liberality and treat the notice of appeal as the equivalent of a
    mistaken or unartful attempt to seek leave to appeal. See, e.g.,
    Caggiano v. Fontoura, 
    354 N.J. Super. 111
    , 125 (App. Div. 2002).
    In    short,   I   do   not   view    the    range     of   possible   outcomes      as
    including only a grant or denial of the motion to dismiss; we
    should consider whether it is appropriate to grant leave to
    appeal.
    Second, a mistaken denial of intervention as of right could
    have a profound effect on the parties and judicial economy. If
    the litigation proceeds without a person who possesses a right
    to intervene pursuant to Rule 4:33-1, the remedy – once final
    judgment is entered and an appeal of right filed – will likely
    be a new trial.1 That potential presents a compelling ground for
    granting leave to appeal. Indeed, because of that potentially
    profound    effect     on   the    proceedings,     in   my   view   we    should
    liberally indulge applications for interlocutory review of such
    orders.     Cf. Daniels v. Hollister Co., 
    440 N.J. Super. 359
    , 361
    n.1 (App. Div. 2015).
    I believe the interests of justice and judicial economy
    highly     favor   a   grant      of   leave   to   appeal    the    denial      of
    intervention as of right. Concerns expressed about the delay
    caused by an appeal at this time – rampant in the moving papers
    and implicit in the trial judge's decision – are of interest
    but, for me, they do not carry the day.                  Our practice is to
    accelerate interlocutory appeals.              With an expedited briefing
    schedule, this court could hear and decide the appeal on its
    merits within a matter of weeks and certainly in less time than
    1
    Rule 4:33-1 defines a person with a right to intervene as one
    with an "interest relating to the property or transaction which
    is the subject of the action and is so situated that the
    disposition of the action may as a practical matter impair or
    impede the ability to protect that interest . . . ."      Unless
    that person's "interest is adequately represented by existing
    parties," ibid., an erroneous decision that keeps that person on
    the sidelines while the case is tried will – if appealed –
    likely lead to a retrial.
    2                                A-4569-15T1
    has elapsed since the time this appeal was filed.2 In my view,
    the efficient administration of justice would be better served
    by briefly delaying the trial court proceedings so that we might
    resolve within a short span of time whether intervention was
    properly denied.
    In short, I would not dismiss the appeal – although I agree
    the   proposed   intervenor   had      no   right   to   appeal   –   but   would
    instead grant leave to appeal the order denying intervention and
    the intertwined order awarding fees3 as well.                 Accordingly, I
    respectfully     dissent   from   my   colleagues'       disposition   of   this
    motion.
    2
    It is of interest that the notice of appeal, which deprived the
    trial court of jurisdiction, see R. 2:9-1(a); State v. Ross, 
    441 N.J. Super. 120
    , 125 (App. Div. 2015), was filed on June 24,
    2016, and plaintiffs' motion to dismiss was not filed until
    October 26, 2016, more than four months later but only a few
    days before the scheduled commencement of the trial on October
    31, 2016. I recognize that earlier correspondence between
    counsel   and  the   Clerk's  Office   questioned   the  proposed
    intervenor's right to appeal, and I do not mean to suggest
    plaintiffs' delay in seeking dismissal was strategic. My point
    is that the delay in filing the motion to dismiss demonstrates
    that a further brief delay in the disposition of this
    interlocutory appeal on its merits would cause no harm.
    3
    The proposed intervenor also filed an amended notice of appeal
    which sought our review of the judge's imposition of fees.
    3                               A-4569-15T1