Appealing to the Appellate Division: Stays and Emergent Applications

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Appellate Law Attorney

Litigation is a lengthy process.  It starts with the filing of a complaint, which is followed by an answer from the opposing party or parties.  Discovery commences, and it can be a year from the date the complaint is filed before a trial even occurs.  Fortunately, our court system provides ways to deal with actions that require urgent relief.  At the trial level, you can file what is known as an order to show cause with temporary restraints, which is an action the court will hear right away and either grant or deny any relief the plaintiff seeks.  For example, in a family law case, if the custodial parent decides to leave the country with the child within a couple of days, despite a visitation order requiring the custodial parent to allow the other non-custodial parent to have visitation time with the child, the non-custodial parent can file this type of emergent action to ask the court to prevent the parent from leaving with the child.

In the same vein, a final judgment or order of the trial court made prior to judgment, or an interlocutory order, which may cause immediate irreparable harm to one party over another, may allow that party to seek emergent relief in the Appellate Division for a stay of the interlocutory order or final judgment.  A stay prevents the judgment or order from a trial court to go into effect while being appealed to the Appellate Division.  Normally, if a motion to the Appellate Division for a stay pending appeal is made, it may be heard three to four weeks after the motion is made.  The emergent application shortens that time frame so the court would hear that motion for a stay as soon as possible.  Like a motion to stay the interlocutory order or final judgment of the trial court pending appeal, the emergent application is not a decision on the merits, and has its own standards that the Appellate Division will look at to make a decision on it.

First off, did the movant attempt to ask for a stay in the trial court?  Failure to do this will immediately get your application denied.  Second off, is the harm the injured party would suffer both irreparable and imminent?  This is the standard to have a stay of an order or judgment reviewed on an emergent basis.  An example of imminent and irreparable harm, as provided to us by the Appellate Division’s emergent application guidelines, is when a court orders privileged information to be exchanged with the other side right away in discovery.  This is emergent because you cannot un-view the information once already discovered by the side requesting it.

Third, is the relief you seek stem from a final judgment or an interlocutory order?  The Appellate Division has a higher standard when it comes to interlocutory orders.  Not only do you need to prove imminent and irreparable harm, but you will need to show that this interlocutory order warrants leave to appeal it to the Appellate Division.  This process will be discussed further in this blog series.  Finally, if you are looking for emergent relief from an order or judgment, do not hesitate or delay!  In the example above concerning privileged information, if the trial court says to turn the information over in two weeks from the date of the order, don’t be waiting until a day before the two week deadline is up to file this application.  The court is going to want to know why it took you so long to file this application, and will deny your application for emergent relief on this basis alone.  This is referred to as a “self-generated emergency.”

Should you meet these requirements, your request will be granted, and you will be able to have your stay of the final judgment or an interlocutory order reviewed quickly than normal, while your direct appeal or motion for leave to appeal an interlocutory order is pending before the Appellate Division.

To discuss your NJ Appellate Law matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.

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