                    NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-4569-15T1

HUNY & BH ASSOCIATES INC.,
DANIEL WEINGARTEN, HILLEL
WEINGARTEN 2013 TRUST, URI
WEINGARTEN 2013 TRUST, NATAN             APPROVED FOR PUBLICATION
WEINGARTEN 2013 TRUST and THE
YAEL SILBERBERG 2012 APPOINTED              December 2, 2016
TRUST,
                                           APPELLATE DIVISION
      Plaintiffs-Respondents,

v.

AVI SILBERBERG,

      Defendant/Third-Party
      Plaintiff-Appellant,

and

YAEL SILBERBERG, YAFFA SILBERBERG
INTERESTED PARTIES, HARBINA
MANAGEMENT COMPANY and THOMAS J.
HERTEN ESQ.,

      Defendants,

and

YAEL SILBERBERG,

      Defendant/Third-Party
      Plaintiff,

v.

SIMA WEINGARTEN, EARL SMITH and
BEFFIE YURMAN,
      Third-Party Defendants-
      Respondents,

and

DARLENE FISHER, JUDY SPERO,
SHERA TUCHMAN and GAYA BERNSTEIN,

     Third-Party Defendants.
________________________________________

           Submitted November 28, 2016 – Decided December 2, 2016

           Before Judges Fisher, Ostrer             and   Leone
           (Judge Fisher dissenting).

           On appeal from the Superior Court of New
           Jersey, Law Division, Bergen County, Docket
           No. L-10677-15.

           Avi Silberberg, appellant pro se.

           Kraemer    Burns,    P.A.,    attorneys    for
           respondents   Daniel   Weingarten   and   Sima
           Weingarten; and Lowenstein Sandler LLP,
           attorneys   for   respondents    HUNY   &   BH
           Associates   Inc.,   Yael   Silberberg    2012
           Appointed Trust, Hillel Weingarten 2013
           Trust, Uri Weingarten 2013 Trust, Natan
           Weingarten 2013 Trust, Earl Smith and Beffie
           Yurman (John A. Avery, David L. Menzel,
           Jeffrey J. Wild and Natalie F. Dallavalle,
           on the joint brief).

      The opinion of the court was delivered by

OSTRER, J.A.D.

      We   have   before   us   the   motion   of   various   plaintiffs-

respondents and third-party-defendants-respondents to dismiss an




                                      2                           A-4569-15T1
appeal as interlocutory.1         In response, defendant Avi Silberberg

contends he is entitled to an appeal as of right from the trial

court's May 27, 2016 order denying his motion to intervene on

behalf   of    himself    doing   business        as     "Right    Time,"   a    sole

proprietorship in New York.         Mr. Silberberg contends his motion

to intervene was as of right, pursuant to Rule 4:33-1, and,

consequently, the denial of the motion was final and appealable

as of right.       He also seeks to appeal as of right the court's

subsequent order on June 17, 2016, imposing monetary sanctions

upon him.        This multi-party case remains pending before the

trial court, which was scheduled to commence trial October 31,

2016.    Having considered the motion in light of the record and

applicable principles of law, the appeal is dismissed.

      Our     Rules   are     intended       to    limit        interlocutory     and

fragmentary appeals that would delay the disposition of cases

and clog our courts.           In re Pa. R.R. Co., 20 N.J. 398, 408

(1956); see also Brundage v. Estate of Carambio, 195 N.J. 575,

599 (2008) (referring to "our general policy against piecemeal

review of trial-level proceedings").                   Appeals as of right from

the   Superior    Court     generally    may      be    taken     only   from   final

1
   They include: Plaintiffs Daniel Weingarten, HUNY & BH
Associates, Inc., Hillel Weingarten 2013 Trust, Uri Weingarten
2013 Trust, Natan Weingarten 2013 Trust, and The Yael Silberberg
2012   Appointed   Trust,   and   third-party   defendants  Sima
Weingarten, and trustees Earl Smith and Beth Yurman.



                                         3                                  A-4569-15T1
judgments.      R.   2:2-3(a)(1).     Final judgments are those that

adjudicate "all issues as to all parties."               Silviera-Francisco

v. Bd. of Educ. of Elizabeth, 224 N.J. 126, 136 (2016).

       We recognize that our court has previously declared that

"an order denying intervention has been deemed to be final."

Grober v. Kahn, 88 N.J. Super. 343, 360 (App. Div. 1965), rev'd

on other grounds, 47 N.J. 135 (1966).               But the view is not

universally accepted.         See Gov't Sec. Co. v. Waire, 94 N.J.

Super. 586, 588-89 (App. Div.) (without reference to Grober,

characterizing       as   interlocutory    an   appeal    from     denial    of

intervention where appellant had "absolute right to intervene"),

certif. denied, 50 N.J. 84 (1967).         See also Savage v. Weissman,

355 N.J. Super. 429, 435 (App. Div. 2002) (contrasting Grober

and Gov't Sec. Co.).

       Notably, the denial of a permissive motion to intervene has

been   deemed   interlocutory,      requiring   a   motion   for    leave    to

appeal.    Savage, supra, 355 N.J. Super. at 435.                Grober would

thus   create   a    dichotomy   between    motions   denying      permissive

intervention and motions denying intervention as of right.                  The

Grober court acknowledged this potential distinction explicitly

in its discussion.        Grober, supra, 88 N.J. Super. at 360.

       We are unpersuaded that it is consistent with New Jersey

practice and policy to treat the denial of a motion to intervene




                                      4                              A-4569-15T1
as of right as final and appealable as of right.                               The as-of-

right-vs.-permissive     dichotomy         creates          a   problematic      two-part

evaluation for the reviewing court.                As a threshold matter, the

court must reach the merits of the appeal from the intervention

denial — that is, whether there was a right to intervention.

Only after this evaluation may the court decide whether there

was a right to appeal.      Since both forms of motions to intervene

merely   resolve   one   issue        as   to    one    party,      it    is    far   more

sensible to treat both as interlocutory.

    The     Grober       court         relied          on       federal        precedent.

Specifically, Grober relied on State by McLean v. Lanza, 60 N.J.

Super. 130 (App. Div. 1959), aff'd on other grounds, 39 N.J. 595

(1963), and both Grober and Lanza referred to Brotherhood of

Railroad Trainmen v. Baltimore & Ohio Railroad Co., 331 U.S.

519, 67 S. Ct. 1387, 91 L. Ed. 1646 (1947).                        Grober also found

support in Dickinson v. Petroleum Conversion Corp., 338 U.S.

507, 513, 70 S. Ct. 322, 325, 94 L. Ed. 299, 303 (1950) ("We

have held that an order denying intervention to a person having

an absolute right to intervene is final and appealable.").

    We    are   unpersuaded      by    the      rationale        behind   the     federal

approach.   The rule is based on a concern that, if a proposed

intervenor cannot immediately appeal the denial of a motion to

intervene as of right, then he or she would be forever precluded




                                           5                                     A-4569-15T1
from securing review at the close of the case as he would lack

status as a party.           See Bhd. of R.R. Trainmen, supra, 331 U.S.

at 524, 67 S. Ct. at 1389, 91 L. Ed. at 1650.                                Federal courts

continue to follow this reasoning.                    See e.g., Williams v. Katz,

23     F.3d   190,    191       (7th    Cir.       1994).         But    a     party     denied

intervention as of right in New Jersey would not necessarily

lack standing to prosecute an appeal at the end of the case

under Rule 2:2-3.           After all, an unsuccessful intervenor would

have the status similar to a party who was dismissed at some

point during the course of the litigation, for example, on a

motion for partial summary judgment.                         See Silviera-Francisco,

supra, 224 N.J. at 136.

       Furthermore, it is unclear whether the federal approach has

the same impact on trial court proceedings as would an appeal as

of right in our system.                Under Rule 2:9-1, an appeal as of right

from the denial of a motion to intervene as of right would then

vest    control      of   the    proceedings         in     our   court      and   generally

divest    the   trial       court      of   jurisdiction          to    act.       In    short,

recognizing a right of appeal would mean recognizing the right

to halt proceedings in the trial court, absent further order of

our court.        By contrast, it appears that the federal court's

recognition of a right to appeal from a denial of a motion to

intervene would not necessarily halt the progress of the ongoing




                                               6                                        A-4569-15T1
litigation.       See Apostol v. Gallion, 870 F.2d 1335, 1338 (7th

Cir. 1989) ("[A]n appeal of a collateral order does not disrupt

the litigation in the district court."); Valley Ranch Dev. Co.

v. Fed. Deposit Ins. Corp., 960 F.2d 550, 555 (5th Cir. 1992)

("[A]    denial    of    intervention      is    immediately        appealable        as   a

collateral order.").

      Moreover, even federal doctrine provides that if a party is

already involved in the litigation and will have standing to

seek appellate review notwithstanding the denial of the motion

to    intervene,        then    the     denial       shall    not    be    treated         as

immediately appealable.               See Carlough v. Amchem Prods., 5 F.3d

707, 712 (3d Cir. 1993) ("[A]nyone who is involved in an action

sufficiently      to     have    a      right    of     appeal      from   its        final

disposition does not have an immediate right of appeal from a

denial     or   partial        denial     of     intervention.").             See      also

Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 107

S. Ct. 1177, 94 L. Ed. 2d 389 (1987); 6 James W. Moore, et al.,

Moore's Federal Practice – Civil § 24.24 (3d ed. 2016) ("If a

movant is not technically a party, but is involved in an action

sufficiently to have a right to appeal its final disposition,

the movant may not immediately appeal denial of a motion to

intervene.").        Inasmuch as Mr. Silberberg is already a party to

the     litigation      and    will     have     a    right    to    appeal      at    its




                                           7                                     A-4569-15T1
conclusion, he may not appeal as of right the denial of the

motion to intervene on behalf of his sole proprietorship.

    Mr. Silberberg does not dispute that the sanctions order is

interlocutory.    His argument that it is appealable as of right

is meritless.    R. 2:11-3(e)(1)(E).

    Appeal dismissed.




                                 8                          A-4569-15T1
FISHER, P.J.A.D., dissenting.

       I concur with and join in my colleagues' determination that

there   exists     no   right    to   appeal     the     denial   of   a    motion   to

intervene as of right. I write separately, however, because the

motion before us seeks dismissal of the proposed intervenor's

notice of appeal and, rather than dismiss, I would grant leave

to appeal to consider the merits of the interlocutory appeal.                         I

would do that for two essential reasons.

       First, when the notice of appeal was filed, the proposed

intervenor had a good faith basis for believing he was entitled

to appeal as of right.           See Grober v. Kahn, 88 N.J. Super. 343,

360    (App.   Div.     1965),   rev’d      on   other      grounds,   47   N.J.     135

(1966). Now that we have concluded otherwise, we should exercise

liberality and treat the notice of appeal as the equivalent of a

mistaken or unartful attempt to seek leave to appeal. See, e.g.,

Caggiano v. Fontoura, 354 N.J. Super. 111, 125 (App. Div. 2002).

In    short,   I   do   not   view    the    range     of   possible   outcomes      as

including only a grant or denial of the motion to dismiss; we

should consider whether it is appropriate to grant leave to

appeal.

       Second, a mistaken denial of intervention as of right could

have a profound effect on the parties and judicial economy. If

the litigation proceeds without a person who possesses a right
to intervene pursuant to Rule 4:33-1, the remedy – once final

judgment is entered and an appeal of right filed – will likely

be a new trial.1 That potential presents a compelling ground for

granting leave to appeal. Indeed, because of that potentially

profound    effect     on   the    proceedings,     in   my   view   we    should

liberally indulge applications for interlocutory review of such

orders.     Cf. Daniels v. Hollister Co., 440 N.J. Super. 359, 361

n.1 (App. Div. 2015).

    I believe the interests of justice and judicial economy

highly     favor   a   grant      of   leave   to   appeal    the    denial      of

intervention as of right. Concerns expressed about the delay

caused by an appeal at this time – rampant in the moving papers

and implicit in the trial judge's decision – are of interest

but, for me, they do not carry the day.                  Our practice is to

accelerate interlocutory appeals.              With an expedited briefing

schedule, this court could hear and decide the appeal on its

merits within a matter of weeks and certainly in less time than


1
  Rule 4:33-1 defines a person with a right to intervene as one
with an "interest relating to the property or transaction which
is the subject of the action and is so situated that the
disposition of the action may as a practical matter impair or
impede the ability to protect that interest . . . ."      Unless
that person's "interest is adequately represented by existing
parties," ibid., an erroneous decision that keeps that person on
the sidelines while the case is tried will – if appealed –
likely lead to a retrial.




                                         2                                A-4569-15T1
has elapsed since the time this appeal was filed.2 In my view,

the efficient administration of justice would be better served

by briefly delaying the trial court proceedings so that we might

resolve within a short span of time whether intervention was

properly denied.

      In short, I would not dismiss the appeal – although I agree

the   proposed   intervenor   had      no   right   to   appeal   –   but   would

instead grant leave to appeal the order denying intervention and

the intertwined order awarding fees3 as well.                 Accordingly, I

respectfully     dissent   from   my   colleagues'       disposition   of   this

motion.




2
  It is of interest that the notice of appeal, which deprived the
trial court of jurisdiction, see R. 2:9-1(a); State v. Ross, 441
N.J. Super. 120, 125 (App. Div. 2015), was filed on June 24,
2016, and plaintiffs' motion to dismiss was not filed until
October 26, 2016, more than four months later but only a few
days before the scheduled commencement of the trial on October
31, 2016. I recognize that earlier correspondence between
counsel   and  the   Clerk's  Office   questioned   the  proposed
intervenor's right to appeal, and I do not mean to suggest
plaintiffs' delay in seeking dismissal was strategic. My point
is that the delay in filing the motion to dismiss demonstrates
that a further brief delay in the disposition of this
interlocutory appeal on its merits would cause no harm.
3
  The proposed intervenor also filed an amended notice of appeal
which sought our review of the judge's imposition of fees.



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