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Litigants who are displeased with the outcome of a judicial decision can rest assured that there exist multiple avenues by which a review of the decision may occur – mainly, in the form of a motion for reconsideration or an appeal.  This post focuses on the reconsideration route, which, despite the large number such motions that are filed, is actually supposed to be quite strict in its application.

As a matter of common sense and an effort to avoid an even worse judicial calendar backlog than that which currently exists, reconsideration applications are not simply a way for the unhappy litigant to get another “bite of the apple”.   More often than not, however, it seems that reconsideration applications are exactly that –a way for the dissatisfied party to be heard again on the same issues with the hope that the trial judge will simply change his or her mind.

Rule 4:49-2, which applies to reconsideration motions, does not provide much by way of direction.  Rather, it focuses largely on the deadline for filing.  It states:

Except as otherwise provided by R. 1:13-1 (clerical errors) a motion for rehearing or reconsideration seeking to alter or amend a judgment or order shall be served not later than 20 days after service of the judgment or order upon all parties by the party obtaining it.  The motion shall state with specificity the basis on which it is made, including a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred, and shall have annexed thereto a copy of the judgment or order sought to be reconsidered and a copy of the court’s corresponding written opinion, if any.

Various cases have fleshed out what constitutes a sufficient basis for reconsideration:

  • The court’s decision is based on plainly incorrect reasoning;
  • The court failed to consider evidence;
  • There is good reason for it to reconsider new information that was not available at the time of the prior judgment/order;
  • By correlation, the motion may not be based on facts known by the moving party prior to the entry of the judgment or order; and
  • The motion may not simply be an effort by the moving party to reargue the motion and expand the record – the motion is not an opportunity for the previously losing party to attempt a second “bite of the apple”.

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Continue Reading SOUR GRAPES AND A ROTTEN APPLE – WHEN RECONSIDERATION IS MORE LIKE FRUIT SALAD