Sometimes, litigants never want to give up the fight.  An adverse ruling is rendered against them so what’s next, a motion for reconsideration that does not meet the criteria for motions for reconsideration.  What’s next?  Typically an appeal.  But some times, you even see a motion for reconsideration of a denial for motion for reconsideration.  And on and on and on.

Can you even file a motion for reconsideration of a motion for reconsideration?  The Appellate Division has definitively said no in the case or Smith v. Smith, an unreported (non-precedential) decision released on August 29, 2013 (a case which I was successfully involved in.)

In affirming the trial court, the Appellate Division agreed with the following analysis by the trial court judge:

The Defendant has brought a motion for reconsideration of the denial of reconsideration. No such motion exists. . . .

The general standard of review for a motion for reconsideration provides that a motion for reconsideration should not be made merely because a party is dissatisfied with the court’s decision.   D’Atria v.  D’Atria, 242 N.J. Super. [392,] 401 (Ch. Div. 1990). Rather a party is entitled to reconsideration where the court’s decision has a “palpably incorrect or irrational” basis or “it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence.” Ibid. “[A] litigant must initially demonstrate that the Court acted in an arbitrary, capricious, or unreasonable manner, before the Court should engage in the actual reconsideration process.” Ibid. Simply put, [d]efendant did not file the motion for reconsideration within twenty days after service of the order, as required by Rule 4:49-2.  This time limit cannot be enlarged.

The Appellate Division further stated:

Defendant appeals from the denial of his motion for reconsideration of the denial of a prior motion for reconsideration. No such relief is provided for in our rules. See R. 4:49-2; D’Atria, supra, 242 N.J. Super. at 401.  Filing another motion to reconsider the denial of reconsideration does not resurrect that order, and a party cannot indefinitely extend the period for appeal by filing serial motions for reconsideration.

Moroever, as the original order for which reconsideration was sought was not appealed to, the Appellate Division could not address the merits of the original order for which reconsideration was sought.  “Consequently, if the notice [of appeal] designates only the order entered on a motion for reconsideration,
it is only that proceeding and not the order that generated the reconsideration motion that may be reviewed.”

What are the take aways from this case:

  1. Motions for reconsideration of motions for reconsideration are not appropriate
  2. Motions for reconsideration must be timely filed – the time cannot be extended.
  3. When filed, motions for reconsideration cannot have technical defects.  In this case, the Notice to Litigants and Certification of Service were missing and the motion was returned.  It was re-filed a few days later but because the rule allowing re-filing of non-compliant papers back to the original filing date does not apply to motions, the motion was rejected.
  4. When appealing the denial of a motion for reconsideration, you also have to appeal the underlying order that you originally sought reconsideration of or that will not be before the Appellate Division.

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Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices, though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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