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Miletta v. Doe

Decided: April 7, 1978.

NAOMI MILETTA, EXECUTRIX OF THE ESTATE OF ANTHONY J. MILETTA, PLAINTIFF,
v.
JOHN DOE (A FICTITIOUS NAME), BRUNSWICK FABRICATORS, INC., RAYBESTOS MANHATTAN, INC., INDUSTRIAL SUPPLIES, BRIDGETON PLUMBING, HAJOCA CORP., JOHNS MANVILLE, ATLAS ASBESTOS COMPANY, AND NICOLET INDUSTRIES, INC., DEFENDANTS



Miller, J.c.c. (temporarily assigned).

Miller

This matter comes before the court on identical motions brought on behalf of defendants Atlas Asbestos Co. and Nicolet, Inc. They seek to vacate a previous order of this court whereby leave was granted to plaintiff to file a third amended complaint naming as direct defendants Atlas Asbestos and Nicolet. Alternatively, they seek to dismiss the third amended complaint as against them.

Plaintiff's decedent died on August 1, 1974. On July 23, 1976 a complaint for wrongful death was filed by plaintiff as executrix of his estate, naming as defendants "John Doe (a fictitious name representing one or more corporations and/or companies engaged in the business of manufacturing and/or distributing products containing asbestos)".

By order dated February 7, 1977 plaintiff was granted leave to file an amended complaint naming as defendants the following: Brunswick Fabricators, Inc., Raybestos Manhattan, Inc., Industrial Supplies, Bridgeton Plumbing, and Hajoca Corp.

Again, on July 8, 1977 leave was granted permitting plaintiff to file a second amended complaint naming Johns Manville in addition to the above defendants.

Thereafter, on August 11, 1977 defendant Brunswick Fabricators filed a third-party complaint against Atlas Asbestos and Nicolet.

Finally, on November 22, 1977 leave was granted permitting plaintiff to file a third amended complaint naming as direct defendants Atlas Asbestos and Nicolet in addition to

those defendants named in the first and second amended complaints.

Defendants Atlas Asbestos and Nicolet contend that the order of November 22, 1977 permitting plaintiff to file her third amended complaint was improperly granted in that no notice was given to them.

The procedure whereby a plaintiff is permitted to amend his complaint in order to assert a direct claim against a third-party defendant is set forth in R. 4:8-1(b), which in relevant part, states:

Plaintiff argues that her motion to amend her complaint was filed before either of the third-party defendants had filed their answer and therefore could not be noticed. Not so. Plaintiff states in her brief that a copy of the third-party complaint was served upon her on June 29, 1977, yet her motion to amend was not filed until September 1, 1977. It is obvious that plaintiff was at that time well aware of the identity and location of these defendants. Service upon them could have been properly made. R. 1:5-2; 4:4-4(c)(1). Since she failed to properly notify the defendants the order was improperly granted and is hereby vacated.

Defendants argue that the third amended complaint must be dismissed as against them on the grounds that it was filed outside ...


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