OS Secures Dismissal through an Interlocutory Appeal to Enforce Settlement

April 26, 2024


OS Partner Steven A. Weiner and Associate Adam W. Flannery recently prevailed on an interlocutory appeal in the New Jersey Appellate Division, securing dismissal through enforcement of a settlement agreement.

The appeal arose from a condominium construction defect case relating to a construction project in which the firm’s client served as a subcontractor. The claims against the client and other subcontractors were dismissed through summary judgment but later overturned. In the interim, the plaintiff condominium association settled with the general contractor and certain subcontractors. 

After the claims against the client were reinstated, OS sought dismissal by way of a motion to enforce the settlement as applicable to its client. Specifically, the plaintiff agreed in the settlement agreement to dismiss all claims against entities “enrolled” in a contractor-controlled insurance program (“CCIP”) administered by the general contractor and covering certain subcontractors. The issue was whether OS’s client was “enrolled” in the CCIP. OS argued that its client was provided proof of enrollment and afforded insurance coverage pursuant to the CCIP policy, neither of which was officially revoked. In response, the plaintiff demonstrated that after OS’s client enrolled in the CCIP, the general contractor determined and alerted OS’s client that it was not eligible for CCIP enrollment. The motion judge denied OS’s motion, concluding the settlement agreement did not apply to OS’s client, as it was not enrolled in the CCIP.    

After succeeding on a motion for leave to appeal, OS presented several arguments demonstrating the error in the motion judge’s interpretation of the settlement agreement and application to the facts presented. In an April 25, 2024 decision, the Appellate Division ruled in OS’s favor and ordered that the claims against its client be dismissed. The panel agreed with OS’s legal analysis and found that the evidence of CCIP enrollment was “overwhelming.”

This outcome was particularly favorable to OS’s client. Not only did OS secure the dismissal of all claims against its client, but due to the interlocutory nature of the appeal, the Firm saved its client the effort and expense that would have otherwise been expended to litigate the matter to completion at the trial level before appellate review.

Read the full opinion here.

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