Rubessa v. Warner, 2012 WL 1468789 (App. Div. April 30, 2012). In spite of frequent warnings that interlocutory appeals improperly brought as final will be dismissed, the Appellate Division occasionally overlooks that distinction and grants leave to appeal nunc pro tunc even though an order appealed from is less than final. In this personal injury negligence case, one defendant won summary judgment, but the claims against the other defendant remained unresolved. Plaintiff then dismissed his claims against that defendant without prejudice to their reinstatement and filed an appeal of the summary judgment as to the other defendant.
In a per curiam decision, the Appellate Division noted that, on these facts, there was no final judgment. Nonetheless, “given the nature of plaintiff’s substantive arguments” the court chose to consider the appeal “for purposes of expediency.” The panel thus granted leave to appeal nunc pro tunc, but proceeded to reject plaintiff’s appeal on the merits. There was simply no evidence to support the idea that the defendant who had obtained summary judgment was liable in any way for what the panel characterized as a “self-evident” danger– the allegedly wobbly placement of a ladder from which plaintiff fell while working at defendants’ premises.