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Bozzuto''s v. Kantrowitz

Decided: December 3, 1971.

BOZZUTO'S INC., A CONNECTICUT CORPORATION, PLAINTIFF-APPELLANT,
v.
FRANK KANTROWITZ & SONS, INC., A NEW JERSEY CORPORATION, FRANK KANTROWITZ, DAVID KANTROWITZ, ARTHUR KANTROWITZ, AND CLYDE THOMAS, DEFENDANTS-RESPONDENTS



Conford, Matthews and Fritz. The opinion of the court was delivered by Fritz, J.A.D.

Fritz

The sole issue presented by this appeal is whether a foreign corporation, not qualified to do business in New Jersey pursuant to statutory mandate, may seek affirmative relief in an action at law in conjunction with its defense against the claim of another. The question is apparently of first impression in New Jersey and requires us to consider N.J.S.A. 14A:13-11 toward the end of ascertaining the legislative intent in this regard.

Plaintiff Bozzuto's Inc., a Connecticut corporation not having a certificate of authority to do business in New Jersey pursuant to N.J.S.A. 14A:13-3, brought suit in contract against defendants Kantrowitz and Thomas. Thomas counterclaimed against plaintiff and crossclaimed against Kantrowitz. On defendants' motions the trial court held that summary judgment was available to defeat plaintiff's claim on the theory that the nonqualifying plaintiff doing business in New Jersey was statutorily enjoined by N.J.S.A. 14A:13-11 from the maintenance of the action.*fn1 Entry

of judgment was withheld to afford plaintiff an opportunity to qualify. Cf. Menley & James Laboratories, Ltd. v. Vornado, Inc. , 90 N.J. Super. 404, 414 (Ch. Div. 1966). It determined not to do so. Conceiving at this juncture that defendant Thomas (whose counterclaim and crossclaim remained) was the real plaintiff seeking relief against Bozzuto and Kantrowitz, plaintiff moved to dismiss the Thomas claim (apparently on the ground that the dismissal of plaintiff's claim should have ended the entire action), or, in the alternative, for leave to "counterclaim" against Thomas and "crossclaim" against Kantrowitz. These motions were denied.

The occasional denomination in briefs of plaintiff's claim as a "counterclaim" in the present procedural posture causes us to eschew at once a determination based on pleading semantics. Cf. R. 4:5-4 (last sentence). The question is as we stated it at the outset, regardless of the label chosen for the claim. Additionally, it is to be noted that plaintiff's motion to be permitted to crossclaim as aforesaid specifically sought the right to file "an affirmative claim" and indeed endeavored to reassert the claims of the dismissed complaint.

The right of access to our courts is among the privileges of foreign corporations properly subject to regulation by our Legislature. In this respect N.J.S.A. 14A:13-11 has been enacted and governs. It is to this statute we look:

14A:13-11

(1) No foreign corporation transacting business in this State without a certificate of authority shall maintain any action or proceeding in any court of this State, until such corporation shall have obtained a certificate of authority. * * *.

(2) The failure of a foreign corporation to obtain a certificate of authority * * * shall not prevent such corporation from defending any action or proceeding in any court of this State.

Where a statute conveys the legislative intent by language having a clear and explicit meaning, construction or interpretation is not only unnecessary, but improper. Duke

Power Co. v. Patten , 20 N.J. 42, 49 (1955). We view the statute under consideration as having such a plain meaning. Subsection (1) clearly proscribes the maintenance of any action or proceeding of any kind in any court of this State by a foreign corporation transacting business here until it obtains a certificate of authority. A clearer expression and a more extensive limitation would be hard to formulate. A single exception is engrafted on this ...


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