NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2651-13T3

GREG NOREN,

Plaintiff-Appellant/

Cross-Respondent,

v.

HEARTLAND PAYMENT SYSTEMS, INC.,

Defendant-Respondent/

Cross-Appellant.

____________________________________________________

Submitted May 3, 2016 – Decided February 6, 2017.

Motion for reconsideration denied.

Decided March 8, 2017.

Before Judges Fisher, Espinosa and 

Rothstadt.

On appeal from the Superior Court of New 

Jersey, Law Division, Bergen County, Docket 

No. L-4528-06.

Franzblau, Dratch, P.C., attorneys for 

appellant/cross-respondent (Patrick T. 

Collins, of counsel; Adam Shefki, on the 

briefs).

Blank Rome, LLP, attorneys for respondent/

cross-appellant (Seth J. Lapidow, of counsel 

and on the brief; Jaret N. Gronczewski, on 

the brief).

The opinion of the court was delivered by

FISHER, P.J.A.D.

APPROVED FOR PUBLICATION

March 8, 2017

APPELLATE DIVISION
2 A-2651-13T3

We previously dismissed defendant Heartland Payment 

Systems, Inc.'s cross-appeal, which sought reversal of the 

denial of summary judgment, because of Heartland's failure to 

comply with Rule 2:6-1(a)(1). Noren v. Heartland Payment Sys., 

Inc., __ N.J. Super. __, __ (App. Div. 2017) (slip op. at 14-

15). Specifically, we dismissed the cross-appeal because 

Heartland failed to "submit the items that had been submitted to 

the trial court on the summary judgment motion or even a 

statement of the items submitted." Id. at __ (slip op. at 14).

Heartland now moves for reconsideration, arguing we 

mistakenly employed Rule 2:6-1(a)(1). In Heartland's view, the 

obligation to include in the appendix "all items submitted to 

the court on the summary judgment motion" and "a statement of 

all items" applies only – in the words of the Rule – to an 

appeal "from a summary judgment," and there can only be "a 

summary judgment" upon the grant of a summary judgment motion. 

Heartland argues that it only cross-appealed from a denial of 

summary judgment, not "from a summary judgment." Hence, 

Heartland contends we should reconsider our rule-based 

disposition and review the cross-appeal on its merits.

To be sure, Heartland's argument has color because of the 

Rule's particular wording. We nevertheless find the argument 

lacking in merit. As Judge Learned Hand famously said, "[t]here 
3 A-2651-13T3

is no surer way to misread any document than to read it 

literally." Guiseppi v. Walling, 144 F.2d 608, 624 (2d Cir. 

1944) (concurring opinion), aff’d sub nom., Gemsco, Inc. v. 

Walling, 324 U.S. 244, 65 S. Ct. 605, 89 L. Ed. 921 (1945); see 

also McNeil v. Legislative Apportionment Comm'n, 177 N.J. 364, 

374 (2003). Despite the superficial appeal of Heartland's 

literal construction of the phrase "from a summary judgment," 

the Rule was obviously intended to precisely identify for the 

reviewing court that which was presented to the trial court "on 

the motion for summary judgment," regardless of how the motion 

was decided. Whether a summary judgment motion is granted, 

denied, or granted in part and denied in part, an appellate 

court is limited to an examination of "the original summary 

judgment record." Lombardi v. Masso, 207 N.J. 517, 542 (2011); 

see also Bilotti v. Accurate Forming Corp., 39 N.J. 184, 188 

(1963) (in reviewing the disposition of a summary judgment 

motion, a court is limited to a consideration of "the case only 

as it unfolded to that point"). A party's compliance with the 

Rule clarifies for the reviewing court the parameters of the 

"original summary judgment record"; if it didn't apply in all 

the ways in which a trial judge might dispose of a summary 

judgment motion, an appellate court could easily stray from its 

proper function by affirming or reversing in light of material 
4 A-2651-13T3

never presented when the trial judge considered the motion. We 

reject Heartland's invitation to read the Rule literally, and we 

conclude that the phrase "from a summary judgment" should be 

understood as including appeals taken "from the disposition of a 

summary judgment motion."1

The motion for reconsideration is denied.

 

1 Heartland cites Rios v. Szivos, 354 N.J. Super. 578, 581 n.1 

(App. Div. 2002) (in an appeal of a denial of summary judgment, 

the panel observed the lack of certainty about what was put 

before the motion judge and then provided a "but see" citation 

to Rule 2:6-1(a)(1), with a comment that the Rule "regard[s] 

appendices on appeal from the grant of summary judgment"), as 

support for its position. We do not read the Rios's footnote as 

does Heartland; in any case, we disagree to the extent that 

footnote may be interpreted as holding the Rule does not apply 

to the denial of summary judgment.