This matter is before the court on plaintiffs' motion to file an amended complaint to assert a direct action against the two third-party defendants. It involves the statute of limitations and certain ramifications of the recent decision of the Supreme Court in Lawlor v. Cloverleaf Memorial Park, Inc. , 56 N.J. 326 (1970), reversing in part 106 N.J. Super. 374 (App. Div. 1969), which reversed in part 101 N.J. Super. 134 (Law Div. 1968).
On November 22, 1968 plaintiff Elizabeth Ioannou filed a complaint against defendant Ivy Hill Park Section Four, Inc. (Ivy Hill), the owner of an apartment house, to recover for personal injuries allegedly sustained as the result of a fall which occurred on October 6, 1967 in an elevator
on defendant's premises. Her husband sued per quod. Defendant was charged with negligence in the maintenance, control and inspection of the elevator. In April 1969, well within the statutory period, Ivy Hill filed a motion pursuant to R.R. 4:14-1 (now R. 4:8-1) for leave to serve a third-party complaint against Otis Elevator Company (Otis) and Garden State Maintenance Company (Garden State), seeking contribution under the Joint Tortfeasors Contribution Law and indemnity. Ivy Hill's notice of motion and a copy of the proposed third-party complaint attached thereto were marked "filed" by the Clerk of the Superior Court on April 21, 1969. Said motion was dismissed for failure of Ivy Hill to appear to prosecute the same, but an identical motion was again filed by Ivy Hill returnable on July 18, 1969. The latter motion was adjourned until August 1, 1969, at which time it was granted. A formal order granting the motion was signed on September 19, 1969, prior to the expiration of the statutory period. This order was filed with the Clerk in Trenton on November 13, 1969, after the expiration of the statutory period. The third-party summons and complaint were served upon Garden State on November 20, 1969, and upon Otis on January 7, 1970. Apparently the third-party complaint was never filed with the Clerk as a separate pleading after the entry of the order granting leave to serve it.
After service upon Otis and Garden State, plaintiffs filed the motion now before the court for leave to file an amended complaint to make Otis and Garden State direct defendants to their action. Both third-party defendants oppose on the ground that the filing of complaints against them to hold them directly liable is barred by the two-year statute of limitations, N.J.S.A. 2A:14-2.
As is apparent from the above summary, plaintiffs' motion to make Otis and Garden State direct defendants was made more than two years after Mrs. Ioannou's fall, but Ivy Hill's motion to make them third-party defendants was made and granted by the court within the two-year period.
However, although there was no showing one way or the other on this motion as to whether Otis or Garden State had actual notice during the statutory period of plaintiffs' action against Ivy Hill or of the pendency of the motion by Ivy Hill to bring them in, it is clear that they did not have formal notice within the statutory period of the institution of the third-party action against them or of the existence of the action against Ivy Hill, because service of the third-party complaint was not made upon them until after the expiration of the two-year period.
In the recent Lawlor case the Supreme Court approved the holdings in DeSisto v. Linden , 80 N.J. Super. 398 (Law Div. 1963), and Greco v. Valley Fair Enterprises , 105 N.J. Super. 582 (App. Div. 1969), and firmly adopted the rule that, without running afoul of the statute of limitations, a plaintiff in a tort action will be permitted to file an amended complaint, after the two-year statutory period has run, to bring in as an additional direct defendant one who had been joined as a third-party defendant within the two-year period on motion of the original defendant on a claim for contribution or indemnity. In the Lawlor, DeSisto and Greco cases, however, the third-party defendants had been served with the third-party complaint within the two-year period. They thus had actual, formal notice within that period of the nature and existence of the litigation and that they were parties thereto. And in the opinions in each case there is language which may be seized upon as supporting the view that it is necessary for application of the rule removing the statute of limitations as a defense that the third-party defendant be served within the statutory period.
Thus, in DeSisto , Judge Fulop noted (80 N.J. Super. at 405) that, "Third-party defendant was notified of the claim by process and a pleading in time." And he concluded (at 406), "However, a new claim based on the same occurrences and the same wrong against an existing party may be asserted when that party has become a party and has been alerted to the claim before the running of the
statute."*fn1 In Greco the court stated (105 N.J. Super. at 584) that the third-party defendant was "joined as such prior to expiration of the limitation period," and "has had timely notice * * *." The court also made specific reference to R. 4:9-3, which relates to amendments changing the party against whom a claim is asserted and provides that there is relation back of such amendments if, among other things, the defendant has "within the period provided by law for commencing the action against him * * * received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits."
The references in Justice Jacobs' opinion in the Lawlor case are primarily to timely "filing." But, in commenting upon DeSisto , which was approved as a "very sensible" application of the pertinent rules in their relation to the statute of limitations, and was referred to, together with Greco , as pointing to the "just and proper result," he said (56 N.J. at 340), "It stressed that within the two-year period the contractor had been fully advised, through the third-party complaint, as to the charge of negligence against him and had timely opportunity to prepare and defend." In commenting upon Greco he stated (at 341) that "[w]ithin the two-year period [defendant] filed a third-party action * * *." With respect to the case before the court he noted (at 342) that "[t]he third-party complaint * * * was actually filed well within the two-year period," and that answers were filed by the third-party defendants "well within two years" from the date when the plaintiff's direct cause of action arose against the third-party defendants. And he stated:
When the third-party complaint was filed, the [third-party defendants] were made formally aware that they were being charged with negligence in the care of Mrs. Lawlor and that they were being sought to be ...