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De Sisto v. City of Linden

Decided: September 13, 1963.


On motion to strike claim against third-party defendant.

Fulop, J.c.c. (temporarily assigned).


[80 NJSuper Page 399] At the pretrial in this action plaintiff was granted leave to file and serve a complaint against the third-party defendants Di Iorio (hereinafter referred to as an entity) within ten days and

said third-party defendant was allowed 20 days after service thereof within which to answer. The complaint has been filed and served and third party defendant moves to strike it out upon the ground that the cause of action therein asserted is barred by the statute of limitations.

On November 20, 1962 plaintiff instituted her action against the City of Linden and the driver of an automobile in which she was a passenger for personal injuries allegedly resulting from negligence suffered on May 20, 1961. Plaintiff alleged that the city had caused a manhole to be constructed so as to protrude above the level of incompleted street paving and had placed no barriers or warnings to prevent the public from driving over the area. The car in which plaintiff was a passenger drove over the street at night and struck the manhole, causing plaintiff to be thrown against the windshield and injured.

On February 26, 1963 the City of Linden filed a third party complaint against Di Iorio, the contractor constructing the sewer and paving the street for the city. The third-party complaint is in two counts. The first count sets up the contract between the city and Di Iorio under which the contractor agreed to take all precautions against damage or accident to vehicles and passersby and persons and property generally during the work. It also agreed "to settle" all suits or claims arising out of such damage or accident and to indemnify and save and hold the city harmless therefrom. Under this contract the city sought a judgment against Di Iorio indemnifying it against plaintiff's claim. The second count alleged negligence by Di Iorio causing the injuries to plaintiff, and sought contribution from Di Iorio as a joint tortfeasor.

Di Iorio answered the third-party complaint, and also answered the plaintiff's complaint, as it had a right to do under R.R. 4:14-1. In the answer to the city, Di Iorio denied negligence and included a counterclaim for contribution by the city and the driver of the car as joint tort-feasors.

In the answer to the plaintiff, Di Iorio did not answer the allegations of the complaint "because they do not apply." Di Iorio did, however, set up the negligence of plaintiff and of third parties as affirmative defenses. Di Iorio also demanded a statement of damages under R.R. 4:8-1 and took plaintiff's deposition by way of discovery.

The absence of a direct claim by plaintiff against Di Iorio was apparently overlooked by plaintiff's attorney until the pretrial. It was filed more than two years after the personal injuries were inflicted. As above indicated, Di Iorio contends that the filing of the direct claim against it by plaintiff constitutes the commencement of an action more than two years after the cause of action accrued and is barred by N.J.S. 2A:14-2.

Plaintiff contends that by the leave granted in the pretrial order to file the new pleading, Di Iorio is barred from setting up the statute of limitations. The pretrial order provides that Di Iorio may answer the new pleading within 20 days after service and that, if new matter is presented, an additional pretrial is to be held. It seems clear that Di Iorio has the right to set up any defense to which it is entitled and that the defense of the statute of limitations was not in any way passed upon by the mere leave granted plaintiff to file her pleading. The proper time to pass upon defenses is when the claim and the defenses have been pleaded. My recollection is that the possibility of the bar of the statute was mentioned at the time of the granting of leave to plead and that I expressly provided for the filing of an answer so that the question might be presented, if desired, in the normal course. Di Iorio objected to the granting of leave to the plaintiff to plead and waived none of its rights. If the pretrial order is not as clear on this point as it needs to be, then it may be amended to that effect.

The question is now properly raised by motion since the facts upon which the defense of the statute of limitations is based appear upon the face of the pleading. Feil v. Senisi , 7 N.J. Super. 517 (Law Div. 1950).

The time limitation on the institution of an action is governed by statute. The court has no power to exercise discretion to allow the institution of an ...

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