Peerless appealed to the Appellate Division from all aspects of the trial court's action. Mrs. Buenaga cross-appealed from the rulings in favor of Ohio. The Butlers took the same position as Mrs. Buenaga. The Appellate Division affirmed, 107 N.J. Super. 80 (1969) ( sub nom. Butler v. Buenaga). The Appellate Division quite properly commented that the appeals were interlocutory, without leave first granted, and on its own motion granted leave to appeal nunc pro tunc. Where a suit involves multiple claims, as here, a court may direct the entry of a final judgment upon less than all of the claims only if it determines there is no just reason for delay. R. 4:42-2.
We have done so despite our repeated admonitions to counsel for appellant that he must seek leave to appeal, and our warning to counsel for respondent that it is his responsibility to file a timely motion to dismiss the appeal. See Butler v. Buenaga, 107 N.J. Super. 80, 82-83 (App.Div. 1969), mod. on other grounds sub nom. Butler v. Bonner Barnewall, Inc., 56 N.J. 567 (1970).
We therefore consider the State's notice of appeal as a motion for leave to appeal and because of the special circumstances and the need to resolve the issue presented grant leave nunc pro tunc. Butler v. Buenaga, 107 N.J. Super. 80 (App.Div. 1969). Compare Frantzen v. Howard, 132 N.J. Super. 226 (App.Div. 1975).
In the past we have, on occasion, granted leave to appeal nunc pro tunc where extraordinary circumstances and the interests of justice warranted it. See Kerr v. Kerr, 129 N.J. Super. 291, 293 (App.Div. 1974); Butler v. Buenaga, 107 N.J. Super. 80 (App.Div. 1969). This record, however, does not allow for such an indulgence.