Huny & Bh Associates Inc v. Avi Silberberg

NOT FOR PUBLICATION WITHOUT THE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
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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