By Jonathan P. Holtz, Esq.

In its decision in Lawson v. Dewar in May, the Appellate Division devoted the entire  opinion "chiefly to point out commonly misunderstood distinctions between motions seeking reconsideration of final orders and motions seeking reconsideration of interlocutory orders."

The court ruled that all parties, and the trial judge, incorrectly employed the wrong court rule and standard on a motion for reconsideration based on misidentification of the subject order as final as opposed to interlocutory.

As a result, the Appellate Division vacated and remanded for the parties to employ the correct standard and used the decision to advise the bar in general of this critical, but often overlooked, distinction.

The root of the misunderstanding the Appellate Division sought to clear up stems from a failure to appreciate the distinction between a final order and interlocutory order. In short, a final order is one which disposes of all issues as to all parties, while an interlocutory order disposes of anything less than all issues as to all parties.

In Silviera-Francisco v. Bd. of Educ. of Elizabeth in 2016, the  New Jersey Supreme Court recognized the problem. "Whether a trial court order is final interlocutory has bedeviled courts and attorneys for decades … Generally, an order is considered final if it disposes of all issues all parties," the justices wrote.

In the Silviera-Francisco decision, the justices went further. "In a multi-party, multi-issue case, an order granting summary judgment, dismissing all claims against one of several defendants, is not a final order subject to appeal as of right until all claims against the remaining defendants have been resolved by motion or entry of a judgment following a trial,” they wrote.

Put simply, if the order does not resolve every remaining claim asserted by any party with finality, the order is not final.

Only when an order is properly identified as interlocutory or final can the proper rule, and standard, for a motion for reconsideration or revision be applied.

For the easier interlocutory order, the rule to follow is R. 4:42-2, which says that a  motion for reconsideration or revision of an interlocutory can be filed any time prior to entry of final judgment, and the only standard for the trial judge to employ is “in the sound discretion of the court in the interests of justice.

In Lawson, the Appellate Division noted  a “frequent misconception” that all motions for reconsideration must be filed within 20 days which “is plainly wrong.”

When it comes to  final orders, the rule to follow  is R. 4:49-2, which says that a motion for reconsideration of a final order must be filed within 20 days, and the standard is essentially whether the rationale was palpably incorrect or irrational, and whether the judge failed to consider or appreciate the significance of probative, competent evidence.

It is important to keep in mind that the  majority of orders where reconsideration is sought are likely interlocutory and can be revised at any time during litigation under the liberal standard of “in the interests of justice.” 

Indeed, a true motion for reconsideration of a final order is more commonly the subject of an appeal, motion for a new trial, motion for relief from a final order.

Accordingly, you should cite R. 4:42-2, rather than R. 4:49-2, for most motions for reconsideration, but be prepared to cite Lawson and potentially re-educate your adversary and the judge on this important distinction.

Jonathan P. Holtz, Esq., is an attorney at Bramnick, Rodriguez, Grabas, Arnold & Mangan, LLC in Scotch Plains, NJ where he handles personal injury cases.