LEGAL GUIDE
Written by attorney Joseph William Grather | Aug 12, 2011

Limited Scope of Interlocutory Appellate Review in New Jersey

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It is well established that leave to appeal an interlocutory order is permitted only in exceptional cases. See R. 2:2-4; Appeal of Pennsylvania Railroad Co., 20 N.J. 398, 409 (1956); Romano v. Maglio, 41 N.J. Super. 561 (App. Div. 1956). Interlocutory review is to be exercised “very sparingly," and should be granted only where the denial thereof will result in grave damage or injustice that will not disappear after a trial on the merits. Leave to appeal is only warranted when necessary to preserve and maintain the res or status quo and to prevent irreparable injury to the party seeking appeal.

Interlocutory review is sparingly exercised due to the strong public interest in permitting uninterrupted proceedings at the trial level with a single and complete review. Ibid. Another reason for its limited exercise is that denial of leave permits the trial judge to adjust the interlocutory order, if appropriate, prior to the entry of final judgment, and avoids the need to determine issues whose resolution will be obviated by settlement or trial. See DiMarino v. Wishkin, 195 N.J. Super. 390 (App. Div. 1984); Cardinale Trucking Corp. v. Motor Rail Co., 56 N.J. Super. 150 (App. Div. 1959). In DiMarino, this Court concluded that fragmentation of the trial process “should be avoided unless there are compelling reasons" and that “appellate courts should avoid deciding issues of law which have far-reaching effects until the necessity arises to decide such issues." Id. at 395.

It is of no moment that interlocutory review may avoid the need for extended and expensive trial proceedings or retrial, or that leave to appeal before trial may conclude the litigation. These have been held to be insubstantial grounds for granting interlocutory appeal. See Jardine Estates v. Donna Brook Corp. 34 N.J. Super. 325 (App. Div. 1955); Campbell v. Schlaifer, 88 N.J. Super. 66 (App. Div. 1965).

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Additional resources provided by the author

New Jersey Courts online (http://www.judiciary.state.nj.us/).

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