Taking a “Second Bite of the Apple”: Appellate Division Clarifies the Standards for Motions for Reconsideration

Litigators in the state of New Jersey know that, at times, trial judges view motions for reconsideration as an ill-advised attempt to take a “second bite of the apple” in order to overturn a decision with which the moving party simply disagrees. Motions for reconsideration of all orders have historically been analyzed by trial courts using the framework provided by the Appellate Division in Cummings v. Bahr, 295 N.J. Super. 374 (App. Div. 1996) and R. 4:49-2. Under this framework, reconsideration is only warranted when either: (1) the court has expressed its decision based upon a palpably incorrect or irrational basis; or (2) it is obvious that the court either did not consider, or failed to appreciate the significance of probative, competent evidence. Cummings, 295 N.J. Super. at 384.

In a recent decision approved for publication, Lawson v. Dewar, 2021 WL 2148885 (App. Div. May 27, 2021), the Appellate Division clarified that only final orders are subject to R. 4:49-2 and the Cummings framework. Motions for reconsideration of interlocutory orders, which constitute the vast majority of orders issued by trial courts (resolving motions for substitute service, motions to amend pleadings, motions relating to discovery, etc.) are instead to be governed by the “far more liberal approach” of R. 4:42-2, which states that interlocutory orders “shall be subject to revision at any time before the entry of final judgment in the sound discretion of the court in the interest of justice.” Lawson at *2.

In Lawson, the plaintiff filed a complaint against the Borough of Bound Brook and several its police officers, alleging that he was physically beaten when he was arrested by Bound Brook police officers, including while handcuffed. Id. at *1. The plaintiff moved to extend discovery, amend the complaint, and for other relief. Ibid. The trial court denied the motion, and the plaintiff filed a motion for reconsideration. Ibid. While the motion was pending, the case was transferred from Somerset County, eventually arriving in Middlesex County. Ibid. The trial judge in Middlesex County denied the motion for reconsideration on multiple grounds, including: (1) the judge was “being asked to reconsider the decision of a coequal member of the judiciary”; (2) “nothing new … [was] presented … that hadn’t been available” on the original motion; (3) the plaintiff had not shown that the first judge “acted in an arbitrary, capricious, or unreasonable manner”; (4) the plaintiff’s motion did not “successfully navigate” the “narrow corridor” for motions for reconsideration under Cummings; and (5) the “overlay [of] the law of the case” doctrine, which “instructs courts to respect … the rulings of a different judge … during the pendency of the given case”. Id. at *2 (citations omitted).

The Appellate Division ruled that none of the foregoing reasons applied to the interlocutory order at issue. Instead, they are relevant only to reconsideration of final orders. The Appellate Division confirmed that motions for reconsideration of final orders are governed by the stringent standard associated with Cummings and R. 4:49-2, which “requires a showing that the challenged order was the result of a ‘palpably incorrect or irrational’ analysis or of the judge’s failure to ‘consider’ or ‘appreciate’ competent and probative evidence”. Ibid. (Citations omitted.) Motions for reconsideration of interlocutory orders, on the other hand, are governed by the more liberal standard of R. 4:42-2, which “does not require a showing that the challenged order was ‘palpably incorrect,’ ‘irrational,’ or based on a misapprehension or overlooking of significant material presented on the earlier application.” Ibid. Instead, “[u]ntil entry of final judgment, only ‘sound discretion’ and the ‘interests of justice’ guides the trial court, as Rule 4:42-2 expressly states.” Ibid.

In addition, the Appellate Division took issue with the “undue deference” given to the interlocutory rulings of the trial judge in Somerset County. The Appellate Division explained that “[i]f a prior judge has erred or entered an order that has ceased to promote a fair and efficient processing of a particular case, the new judge owes respect but not deference and should correct the error … it is better to risk giving offense to a colleague than to allow a case to veer off course.” Id. at *3 (citations omitted). Moreover, the “law of the case” doctrine “has no bearing when a party seeks reconsideration of interlocutory discovery orders” because interlocutory rulings “are not considered law of the case and are always subject to reconsideration up until final judgment is entered.” Ibid. (Citations and punctuation omitted.)

Finally, the Appellate Division addressed the negative attitude with which motions for reconsideration are often viewed, stating eloquently:

In the final analysis, we urge judges not to view reconsideration motions as hostile gestures. To be sure, some are frivolous, vexatious or merely repetitious, and some constitute an unwarranted attempt to reverse matters previously decided solely because the prior judge is no longer available. But some reconsideration motions – those that argue in good faith a prior mistake, a change in circumstances, or the court’s misappreciation of what was previously argued – present the court with an opportunity to either reinforce and better explain why the prior order was appropriate or correct a prior erroneous order. Judges should view well-reasoned motions based on Rule 4:42-2 as an invitation to apply Cromwell’s rule: “I beseech you … think it possible you may be mistaken.” The fair and efficient administration of justice is better served when reconsideration motions are viewed in that spirit and not as nuisances to be swatted aside.


In conclusion, the Appellate Division has clarified that motions for reconsideration of final orders continue to be governed by R. 4:49-2 and Cummings. Motions for reconsideration of interlocutory orders, meanwhile, are to be governed by the more liberal R. 4:42-2. To put it another way, interlocutory orders are not “ripe” final orders, therefore no “second bite of the apple” rule applies.