On February 9, 1973 Theresa Giambuttista (plaintiff) filed a Complaint against Bradlees Incorporated ("shopkeeper") and Christina Bryant ("employee"), an employee of shopkeeper charging employee and shopkeeper, through employee, with assault and battery, and in a separate count charging employee with maliciously and intentionally committing an assault and battery. The alleged date of commission was April 19, 1972. Answers on behalf of shopkeeper and employee were filed by an attorney, obtained by shopkeeper, on April 30, 1973 and May 18, 1973. The answer contained a denial and then set forth separate defenses of self-defense and provocation, among others.
On July 28, 1974 a separate attorney for employee filed a notice of motion for permission to file a counterclaim on behalf of employee against plaintiff to recover for injuries employee allegedly suffered. Said notice was addressed to all the attorneys of record, including the defense attorney. In an affidavit attached to the notice of motion the employee states:
I desire to press a claim against the Plaintiff * * * for damages resulting from injuries sustained from the assault and battery committed upon me by the Plaintiff * * * * I believed that such a claim
was being handled by [attorney of employer who filed answer for employee] but I have now been advised to secure my own personal attorney.
Plaintiff opposes the motion on the ground that the claim is barred by the two-year statute of limitations for personal injury, N.J.S.A. 2A:14-2; i.e., the statute barred the claim on April 19, 1974, three months before the motion was filed. Failure of plaintiff to oppose might be construed as a waiver. See Consolidated Motor Lines v. M & M Transport Co., 128 Conn. 107, 20 A.2d 621 (Sup. Ct. Err. 1941).
Employee contends that the motion should be granted on the ground that where a counterclaim would not have been barred on the date the complaint was filed, a counterclaim is not considered untimely, even though it is filed in the action at a time when, if it were filed in an independent action, it would be barred by the statute of limitations, citing Atlantic City Hospital v. Finkle, 110 N.J. Super. 435, 440 (Cty. Ct. 1970).
Defense attorney filed nothing in opposition and made no appearance.
If the claim had been set forth and filed with the answer, it would have been proper under R. 4:7-1.
Even if the statute of limitations had run on the employee's claim between the filing of the complaint and the filing of the answer, such as may occur when a plaintiff files on the last day, or a few days before the end of the period of limitations, some decisions indicate that justice requires such a counterclaim not be barred by the statute of limitations. A contrary holding would encourage many plaintiffs with weak claims to file on the last day to avoid counterclaims. See Azada v. Carson, 252 F. Supp. 988 (D. Hawaii 1966).
This matter does not present such a situation. The counterclaim is being asserted by a supplemental pleading after timely answer and ...