NOT FOR PUBLICATION WITHOUT THE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 

WEINGARTEN 2013 TRUST and THE 

YAEL SILBERBERG 2012 APPOINTED 

TRUST,

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,

APPROVED FOR PUBLICATION

December 2, 2016

APPELLATE DIVISION
2 A-4569-15T1

Third-Party DefendantsRespondents,

and

DARLENE FISHER, JUDY SPERO, 

SHERA TUCHMAN and GAYA BERNSTEIN,

Third-Party Defendants.

________________________________________

Submitted November 28, 2016 – Decided 

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

December 2, 2016
3 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.
4 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 
5 A-4569-15T1

as of right as final and appealable as of right. The as-ofright-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 
6 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 
7 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 
8 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.
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 
2 A-4569-15T1

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.
3 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.