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Zaromb v. Borucka

Decided: January 31, 1979.

SOLOMON ZAROMB, PLAINTIFF-APPELLANT,
v.
ALINA BORUCKA, DEFENDANT-RESPONDENT



On appeal from Essex County District Court.

Fritz and Bischoff.

Per Curiam

Plaintiff Solomon Zaromb filed a two-count complaint in Essex County District Court seeking recovery of damages in the first count for slander and in the second count for alleged "slanderous and malicious interference with plaintiff's business relation."

Defendant Alina Borucka filed an answer denying all liability and a "cross-complaint" seeking damages for "false and malicious prosecution."

By judgment dated July 13, 1977 both the complaint and the "cross-complaint" were dismissed with prejudice "on the grounds of res judicata." Plaintiff appeals from that dismissal.

The procedural history and background of the litigation between plaintiff and defendant is lengthy, and we are hampered in our appellate review by the absence of pertinent transcripts of the proceedings in prior lawsuits. However, the briefs of the parties, the pleadings in this and prior lawsuits, as well as affidavits filed during the course of the litigation between the parties reveal the following pertinent facts.

Plaintiff and defendant are research scientists and entered into a contract on December 6, 1973. On February 5, 1975 Borucka filed a complaint in New Jersey Superior Court naming Zaromb and several corporations defendants. In this complaint she sought damages for alleged breach of contract,

the return of personal property, damages for alleged libel and slander, the appointment of a receiver and other relief.

Zaromb filed an answer to the complaint and also a counterclaim (improperly labeled a cross-complaint, R. 4:7-1) which, through amendments, eventually consisted of 12 counts. In it Zaromb alleged he was owed damages for tortious interference with contractual relations and for breach of contract. No count of the counterclaim alleged slander or libel. Both the complaint and the counterclaim were founded on factual allegations extending from the date of the contract, December 6, 1973 to January 30, 1975. The case was assigned a peremptory trial date of April 5, 1976. Ten days prior thereto defendant, by motion, sought leave to file a supplemental counterclaim asserting a cause of action for damages for slander allegedly based upon newly discovered evidence. This motion was denied because trial was imminent.

Trial commenced on its assigned date and terminated in a mistrial. Zaromb again moved for leave to file the supplemental counterclaim. While we are not provided with a transcript of the judge's ruling, we are informed that the denial of leave to file the supplemental counterclaim was due to the lack of sufficient time for discovery prior to the peremptory scheduled retrial date. The trial judge made the further observation that Zaromb would have an opportunity, by the institution of a separate suit, to have the subject of the proposed supplemental counterclaim adjudicated. Borucka does not dispute this.

The trial of that case pending in the Superior Court lasted six weeks. While appeals were taken from the judgments entered therein, they were not perfected and the appeals were dismissed. After termination of the trial described, this present Essex County District Court suit was instituted.

We pass preliminary proceedings and note that on the day this case was scheduled for trial the judge examined the pleadings, heard argument from the parties ...


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