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Green v. Auerbach Chevrolet Corp.

Decided: May 8, 1991.

ANDREW GREEN, PLAINTIFF-APPELLANT,
v.
AUERBACH CHEVROLET CORP., DEFENDANT-RESPONDENT



On appeal from Superior Court, Law Division, Burlington County.

Ashbey and Landau. The opinion of the court was delivered by Landau, J.A.D.

Landau

Plaintiff Andrew Green appeals from an order for summary judgment entered in favor of defendant Auerbach Chevrolet Corp. (Auerbach) on his suit which sought damages said to arise out of a motor vehicle accident caused by reason of Auerbach's failure to correct defects in a steering mechanism.

The trial judge presumably*fn1 agreed with Auerbach's argument on motion which urged that Green's action was barred by the statute of limitations, N.J.S.A. 2A:14-2, 2A:14-21. Our consideration of the present record requires that we reverse.

Green's date of birth is November 14, 1964. He was seventeen when the accident occurred on May 2, 1982. A Complaint was filed by Green on May 2, 1984 against Auerbach and the General Motors Corporation. It was dismissed on May 24, 1985

for failure to answer interrogatories. The record discloses no entry of a with-prejudice order under R. 4:23-5(a)(2).

A second Complaint, naming only Auerbach as defendant, was filed on October 26, 1987. A default entered against Auerbach for failure to file timely answer was vacated in December, 1988, and an Answer was filed. Neither that Answer nor the Answer to the first Complaint asserted, as required by R. 4:5-4, an affirmative statute of limitations defense.

In September 1989, by leave granted on motion, Auerbach filed an Amended Answer which for the first time asserted a statute of limitations defense. A motion to dismiss the second case for failure to answer interrogatories was granted in November 1989, but the case was reopened on motion in January 1990. This was not challenged by cross-appeal.

Auerbach's summary judgment motion and brief on appeal argued that Green was required to file his Complaint within two years of November 14, 1982, his eighteenth birthday. It correctly urged that, notwithstanding the breach of warranty assertions contained in the Complaint, the action is, in essence, one to recover for personal injury and governed by personal injury limitations law. Raskin v. Shulton, Inc., 92 N.J. Super. 315, 316, 223 A.2d 284 (App.Div.1966).

The dispute here centers around the correct tolling date to be applied under N.J.S.A. 2A:14-21, which provides:

If any person entitled to any of the actions or proceedings specified in sections 2A:14-1 to 2A:14-8 or sections 2A:14-16 to 2A:14-20 of this title or to a right or title of entry under section 2A:14-6 of this title is or shall be, at the time of any such cause of action or right or title accruing, under the age of 21 years, or insane, such person may commence such action or make such entry, within such time as limited by said sections, after his coming to or being of full age or of sane mind.

The 1972 enactment of N.J.S.A. 9:17B-1, et seq., which in a general sense changed the age of majority from 21 years to 18, appears to have given rise to some confusion in case law ...


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