This matter is before me on plaintiff's application for summary judgment on one count of two counts remaining in defendant's counterclaim. R. 4:46-1 et seq. The motion is predicated upon the absence of a genuine issue of any material fact challenged and that plaintiff is entitled to such judgment as a matter of law. R. 4:46-2.
Specifically, plaintiff asserts that the first count of defendant's counterclaim is not maintainable by reason of the statute of limitations. This count demands damages of plaintiff on the theory that defendant sustained personal injuries as the result of plaintiff's breach of warranty.
On February 13, 1968 plaintiff Atlantic City Hospital instituted this action against defendant for $1381.22 for services rendered to defendant while the latter was a patient at the hospital between August 22, and September 23, 1966, and between October 7, and October 17, 1966.
On October 10, 1969 defendant filed his answer and counterclaim out of time by consent. His answer denied liability or indebtedness, but admitted the periods of hospitalization and services rendered. The second count of the counterclaim, asserting a cause of action for personal injuries negligently caused by plaintiff while defendant was a patient, was withdrawn. We are not concerned with the allegations of the third count on this motion.
Plaintiff's motion rests upon its contention that the cause of action asserted by the first count of the counterclaim is barred by the statute of limitations, N.J.S.A. 2A:14-2:
Every action at law for an injury to the person caused by wrongful act, neglect or default of any person * * * shall be commenced within 2 years next after the cause of any such action shall have accrued.
Defendant resists the motion first on the claim that since the first count arises out of contract, the six-year statute, N.J.S.A. 2A:14-1, which governs "recovery upon a contractual claim," applies. This argument is not sustainable because whether the six-year statute or the two-year statute designates the applicable limitation depends on the nature of the injuries, not the theory of recovery. The criterion is whether the action is one for damages based on injury to the person (two-year statute) or damage to property (six-year statute). Rex v. Hutner , 26 N.J. 489 (1958); Rothman v. Silber , 83 N.J. Super. 192 (Law Div. 1964); Tackling v. Chrysler , 77 N.J. Super. 12 (Law Div. 1962); Dailey v. Kiernan , 75 N.J.L. 275 (Sup. Ct. 1907).
Assuming that the two-year statute governs, defendant further urges that the cause of action is not barred because the date of the commencement of plaintiff's action was within two years of the accrual of the cause of action asserted by the first count of the counterclaim, and the factual contentions of this count arose out of the very same transaction pleaded by plaintiff. The record supports defendant's factual claim in these respects, although the actual filing of the counterclaim was more than two years after the accrual of the cause of action exhibited by defendant.
The legal issue thus raised appears to be without precedent in our State.
A counterclaim is a countersuit which is permitted by the court when it can be conveniently tried with the initial action. It may include a setoff or recoupment, or both. Curtis-Warner Corp. v. Thirkettle , 99 N.J. Eq. 806 (Ch. 1926), aff'd 101 N.J. Eq. 279 (E. & A. 1927); D'Orsi v. Galdieri , 126 N.J.L. 574 (Sup. Ct. 1941).
Our present rules provide that a counterclaim may state any claim against the opposing party whether or not it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim. R. 4:7-1. And it may claim ...