Opinion
DOCKET NO. A-3798-13T2
03-31-2016
MAZEL, L.L.C. and DORCA, INC. t/a RAMADA INN OF TOMS RIVER, Plaintiffs-Appellants, v. DOVER WOODS HEALTHCARE CENTER, EREZ HEALTHCARE REALTY COMPANY, L.L.C., Defendants-Respondents. DOVER PARKADE, L.L.C., Plaintiff-Appellant, v. DOVER WOODS HEALTHCARE CENTER, EREZ HEALTHCARE REALTY COMPANY, L.L.C., Defendants-Respondents.
Alexis L. Gasiorowski argued the cause for appellants (Gasiorowski and Holobinko, attorneys; Ms. Gasiorowski, on the briefs). Edward F. Liston, Jr. argued the cause for respondents.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fasciale, Nugent and Higbee. On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket Nos. L-3477-09 and L-2619-11. Alexis L. Gasiorowski argued the cause for appellants (Gasiorowski and Holobinko, attorneys; Ms. Gasiorowski, on the briefs). Edward F. Liston, Jr. argued the cause for respondents. PER CURIAM
Plaintiffs, Mazel, L.L.C. and Dorca, Inc., and Dover Parkade, L.L.C., appeal from a March 19, 2014 order dismissing their complaint with prejudice against defendant, Dover Woods Health Care Center and Erez Healthcare Realty Company, L.L.C. The order did not address defendant's counterclaim for malicious prosecution; therefore, this appeal is interlocutory as all issues between the parties were not resolved. For this reason, we dismiss.
Plaintiffs filed separate complaints against defendant for nuisance. Defendant answered and counterclaimed for malicious prosecution. The two complaints were subsequently consolidated. Defendant then filed a motion for summary judgment, which Judge James Den Uyl granted, ordering plaintiffs' complaint dismissed with prejudice. The malicious prosecution claim was never adjudicated.
Appeals from a trial judge's decision may be taken as of right only when the orders or judgments are a final adjudication. R. 2:2-3(a)(1). "To be a final judgment, an order generally must 'dispose of all claims against all parties.'" Janicky v. Point Bay Fuel, Inc., 396 N.J. Super. 545, 550 (App. Div. 2007) (quoting S.N. Golden Estates, Inc. v. Cont'l Cas. Co., 317 N.J. Super. 82, 87 (App. Div. 1998)), appeal dismissed, 410 N.J. Super. 203 (App. Div. 2009). We may grant leave to appeal an interlocutory order in the interest of justice. R. 2:2-4. Additionally, "we have the power to grant leave to appeal nunc pro tunc from an interlocutory order where there are extraordinary circumstances[.]" Delbridge v. Jann Holding Co., 164 N.J. Super. 506, 509-10 (App. Div. 1978).
At the time of this appeal, defendant's counterclaim had not been adjudicated. The Clerk's office contacted the parties regarding the unadjudicated counterclaim and were advised defendant withdrew it without prejudice. Dismissing the counterclaim without prejudice does not create a final order. See Grow Co., Inc. v. Chokshi, 403 N.J. Super. 443, 461 (App. Div. 2008) (stating "The methodology of dismissing unadjudicated claims without prejudice in order to create the appearance of a final order confounds the manner in which appellate jurisdiction was meant to arise in our judicial system."). Our judicial system requires adherence to rules, and we conclude defendant disregarded this procedure.
The parties failed to seek leave to appeal from an interlocutory order, and the record is devoid of extraordinary circumstances warranting a review on the merits. For these reasons, this appeal is dismissed as interlocutory.
Appeal dismissed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION