NJ Appellate Division Shows Less Tolerance For Untimely Filed Civil Appeals

New Jersey Court Rule 2:4-1(a) requires appeals from final judgments in civil cases to be taken within 45 days of the entry of final judgment.  As the Rule clearly states, the 45-day appellate period starts to run when the judgment or order appealed from is entered. Pogostin v. Leighton, 216 N.J.Super. 363, 370 (App. Div. 1987).

As with most court rules there are usually exceptions, and this rule is no different.   The 45-day appeals period is tolled or stayed by the limited number of events cited in Rule 2:4-3(c), including a timely motion for reconsideration filed pursuant to New Jersey Court Rule 4:49-2 within 20 days of the entry of a final judgment .  In a motion for reconsideration, the dissatisfied party is required to assert that the court overlooked controlling legal precedent or made an error.  Not surprisingly, motions for reconsideration are rarely granted.

In many instances, litigants attempt to use motions for reconsideration as the vehicle to gain an advantage in an appeal by seeking to introduce new evidence or arguments to the trial court.  However, in Capital Fin. Co. of Del. Valley, Inc. v. Asterbadi, 398 N.J. Super. 299, 310 (App. Div. 1987),  the Appellate Division declared that motions for reconsideration cannot serve as the means by which to cure the inadequacy of the trial court's motion record. 

When a trial court denies a motion for reconsideration, the clock starts ticking again on the balance of time remaining from the 45-day appeals period.  “The remaining [appeals] time shall again begin to run from the date of the entry of an order disposing of such motion.” Rule 2:4-3.  So in other words, if a motion for reconsideration is filed on the 19th day of the 45-day appeals period, then the remaining balance of 26 days  (45 -19 = 26) is tolled or stayed until the trial court rules upon the reconsideration motion.   Once the trial court disposes of the reconsideration motion, the clock starts ticking again on the remaining 26 days. 

What happens when a litigant fails to file a timely appeal of a final judgment within the initial 45-day period?   


New Jersey Court Rule 2:4-4 grants the appellate court with the discretion to extend the time for appeal for a maximum of 30 additional days conditioned on a showing of "good cause".  There can be no extension of the time to appeal beyond the maximum 75-day period set forth in R. 2:4-1(a) and R. 2:4-4(a), and "good cause" is required to receive the additional 30-days.  See Cabrera v. Tronolone, 205 N.J.Super. 268 (App. Div. 1985), certif. den., 103 N.J. 493 (1986); Paul v. Ohio Cas. Ins. Co., 216 N.J.Super. 250, 253 (App. Div. 1987), certif. den., 107 N.J. 656 (1987).

As the Appellate Division explained in SWH Funding v. Waldon Printing Co., 399 N.J.Super. 1, 11-14 (App. Div. 2008), good cause is difficult of precise delineation, and requires the exercise of sound discretion in light of the facts and circumstances of the particular case considered on the context of the Court Rule being applied.

Several recently unpublished decisions suggest the Appellate Division has less tolerance for allowing untimely filed appeals.  See Pinckney v. Peterbilt of Florence, Inc., Docket No. A-1964-09T2 (App. Div., June 9, 2010)(Court dismissed untimely appeal filed within 30-day extension permitted by R. 2:4-4(a) because plaintiff advanced no cause at all for his late filing); Liang, et als., v. Loo, et als., Docket No. A-2111-08T3 (App. Div., February 22, 2010)(Court dismissed appeal filed 21 days beyond 45-day appeals period); Transcontinental Insurance Company v. Vermaat, et als, Docket No. A-5675-08T1 (App. Div., May 19, 2010)(Court rejected untimely appeal absent filing of a motion to extend pursuant to R. 2:4-3(e)); Haugh v. Senerchia, Docket No. A-1904-07 (App. Div., November 6, 2008)(Court rejected pro se defendant’s untimely appeal based on his claim of being confused about the proper date for appeal due to medications he was taking, because the defendant did not raise those arguments at the trial level and otherwise failed to establish good cause).

The Appellate Division’s reluctance to excuse untimely filed appeals absent a showing of “good cause” is also apparent in several recent unpublished decisions issued in the employment context. See Alvarez v. Board of Review, and Advanced Automotive, Inc., Docket No. A-2761-10T4 (App. Div., November 29, 2011 (Court upheld dismissal of employee’s untimely appeal from an adverse determination by the Division of Unemployment Insurance because the employee did not argue or establish good cause under the applicable New Jersey Administrative Code section governing the filing of late appeals); Waites v. Board of Review, Department of Labor, et als., Docket No. A-1903-10T4 (App. Div., November 18, 2011)(Court dismissed employee’s appeal of a decision rendered by the appellate tribunal of the New Jersey Department of Labor which was filed 9 days late, finding that the employee did not provide good cause for the late filing); Cavileer v. Board of Review, Docket No. A-5262-05T2 (App. Div., September 10, 2007)(Court rejected claimant’s appeal of an adverse decision rendered by the appellate tribunal of the New Jersey Department of Labor, citing the employee’s failure to establish good cause to permit his untimely appeal filed 9 days beyond the 10-day appeals period); and Rothlein v. Board of Review, et al., Docket No. A-3367-05T (App. Div., October 4, 2006)(Court upheld administrative agency’s rejection of employee’s appeal filed approximately 30-days past the 10-day appeals period absent showing of good cause to permit the late filing).[1]

[1] For untimely appeals of administrative decisions in the employment context, good cause is defined in N.J.A.C. 12:20-3.1(i) as a showing that “1. The delay in filing the appeal was due to circumstances beyond the control of the appellant; or 2. The appellant delayed filing the appeal for circumstances which could not have been reasonably foreseen or prevented.”