This is a motion to dismiss the complaint under R. 4:6-2(e) or for summary judgment under R. 4:46.
Plaintiff and defendant were married to each other at the times herein referred to. In August 1972 they were residents of Plainfield, New Jersey. They went to Vermont together in the husband's automobile, there they transferred to the automobile of a mutual friend living in Vermont and all three went to Ontario, Canada, on a pleasure trip.
On September 1, 1972 defendant husband was driving the friend's automobile in Ontario. Plaintiff wife was asleep in the back seat. The car went off the road and hit a pole and the wife was injured. This action by the wife seeks damages from the husband for her injuries. The complaint was filed on August 19, 1974, more than one year but less than two years after the date of the accident. On November 5, 1974, more than two years after the accident, service was made on the husband at his residence in Nevada by certified mail.
The husband now moves that the complaint be dismissed upon the grounds that (1) the action is barred by the expiration of the Ontario statute of limitations; (2) the complaint fails to allege gross negligence of the driver and therefore fails to state a cause of action under the Ontario motor vehicle guest statute, and (3) not included in the notice of motion, but argued, is the contention that the court lacks jurisdiction over the person of defendant.
The Case is Governed by the Statute of Limitations of New Jersey
Defendant quotes 2 Revised Statutes of Ontario , c. 202, § 146(1), as follows:
Subject to subsections 2 and 3, no action shall be brought for the recovery of damages occasioned by a motor vehicle after the expiration of twelve months from the time when the damages were sustained.
Counsel adds that §§ 2 and 3 of the statute are inapplicable, and the representation is accepted. No full copy of the statute has been supplied and none is available in the Union County Courthouse library. Therefore, we are not informed whether the Ontario statute includes a provision comparable to N.J.S.A. 2A:14-22 tolling the statute during the residence of defendant out of the jurisdiction. Under Evid. R. 9(3) the burden is upon the movant to furnish adequate information for judicial notice of foreign law. However, in view of the other grounds for decision hereinafter stated the point is unimportant.
N.J.S.A. 2A:14-2 provides that an action for "an injury to the person caused by the wrongful act, neglect or default of any person within this state shall be commenced within 2 years next after the cause of any such action shall have accrued."
The cause of action here involved accrued when the injury was suffered. Rosenau v. New Brunswick , 51 N.J. 130 (1968).
The action was commenced by the filing of the complaint with the court. R. 4:2-1. Neither service of process nor attempted service is required to constitute commencement of the action, although delay in so doing may result in dismissal. R. 4:4-1 and R. 4:37-2(a); see dissenting opinion of Justice (then Judge) Sullivan in McLaughlin ...