Rappeport v. Flitcroft, No. A--982
| Court | New Jersey Superior Court – Appellate Division |
| Citation | 218 A.2d 873,90 N.J.Super. 578 |
| Docket Number | No. A--982 |
| Parties | Emanuel RAPPEPORT, Plaintiff-Appellant, v. Willard E. FLITCROFT and Suburban Discount Garden Centers, Inc., Defendants-Respondents. |
| Decision Date | 30 March 1966 |
Page 578
v.
Willard E. FLITCROFT and Suburban Discount Garden Centers,
Inc., Defendants-Respondents.
Appellate Division.
Decided March 30, 1966.
Page 579
Howard R. Weil, Teaneck, for appellant (Stone & Weil, Teaneck, attorneys; Leonard Stone, Teaneck, on the brief).
Robert D. Curran, Paramus, for respondents (Vaccaro & Osborne, Paramus, attorneys; George A. Vaccaro, Paramus, on the brief).
Before Judges GOLDMANN, FOLEY and COLLESTER.
[218 A.2d 874] GOLDMANN, S.J.A.D.
Plaintiff's two-count complaint, filed December 3, 1964, sought damages for (1) damage to his automobile and (2) personal injuries resulting from a collision with the automobile of defendant Suburban Discount Garden Centers, Inc., operated by defendant Flitcroft, its employee. The accident occurred November 14, 1962. An amended complaint was filed December 11. Defendants filed their answer and demand for trial by jury on January 4, 1965. On January 6 they served upon plaintiff's attorneys a notice to take oral depositions, a request for statement of amount of damages claimed, and interrogatories. Following this, on January 22, 1965, they also served a notice of motion for judgment on the pleadings. (The motion was obviously directed to the personal injury claim.) The basis of that motion was that the claim was barred by the two-year statute of limitations.
At the hearing on February 5, plaintiff's counsel argued that the defense should have been raised in the answer under R.R. 4:8--3. Although R.R. 4:12--2(e) permitted this defense to be raised by motion, at the option of the pleader, because of 'failure to state a claim upon which relief can be granted,' such motion, he said, had to be made before answer
Page 580
filed. He based this argument on the language of R.R. 4:12--8, which provides that 'A party waives all defenses and objections which he does not present either by motion as hereinbefore provided or, if he has made no motion, in his answer * * *.' Counsel insisted then, as he does now, that this language sets up an order of procedure: the motion had to come first and then the answer. If the answer was filed first, without setting up the affirmative defense of limitations, such defense could not subsequently be raised by motion.The fatal defect in this argument lies in the fact that R.R. 4:12--8 expressly permits what defendants...
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O'Connor v. Altus
...statute of limitations and thus required by R. 4:5--4 to be pleaded. Plaintiffs recognize, however, the rule of Rappeport v. Flitcroft, 90 N.J.Super. 578, 218 A.2d 873 (App.Div.1966), which preserves the defense of statute of limitations, at least for purposes of a motion before the trial, ......
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Tevis v. Tevis
...445, 274 A.2d 75 (Law Div. 1971). Cf. O'Connor v. Abraham Altus, 67 N.J. 106, 116, 335 A.2d 545 (1975); Rappeport v. Flitcroft, 90 N.J.Super. 578, 218 A.2d 873 (App.Div.1966). We are not dealing here, however, with that kind of problem. The present question is whether the statute of limitat......
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Williams v. Bell Telephone Laboratories Inc.
...A.2d 239] stage of the proceedings," amounted to a waiver. Id. at 335, 521 A.2d 824 (citing R. 4:6-7; Rappeport v. Page 119 Flitcroft, 90 N.J.Super. 578, 581, 218 A.2d 873 (App.Div.1966)). The trial court in this case relied on that observation in Fees as support for its determination that ......
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Fees v. Trow
...adverted to by either party at any stage of these proceedings, we treat it as having been waived. See R. 4:6-7; Rappeport v. Flitcroft, 90 N.J.Super. 578, 581, 218 A.2d 873 (App.Div.1966)). In reversing the summary judgment for defendant the Appellate Division acknowledged this Court's obse......
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O'Connor v. Altus
...statute of limitations and thus required by R. 4:5--4 to be pleaded. Plaintiffs recognize, however, the rule of Rappeport v. Flitcroft, 90 N.J.Super. 578, 218 A.2d 873 (App.Div.1966), which preserves the defense of statute of limitations, at least for purposes of a motion before the trial, ......
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Tevis v. Tevis
...445, 274 A.2d 75 (Law Div. 1971). Cf. O'Connor v. Abraham Altus, 67 N.J. 106, 116, 335 A.2d 545 (1975); Rappeport v. Flitcroft, 90 N.J.Super. 578, 218 A.2d 873 (App.Div.1966). We are not dealing here, however, with that kind of problem. The present question is whether the statute of limitat......
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Williams v. Bell Telephone Laboratories Inc.
...A.2d 239] stage of the proceedings," amounted to a waiver. Id. at 335, 521 A.2d 824 (citing R. 4:6-7; Rappeport v. Page 119 Flitcroft, 90 N.J.Super. 578, 581, 218 A.2d 873 (App.Div.1966)). The trial court in this case relied on that observation in Fees as support for its determination that ......
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Fees v. Trow
...adverted to by either party at any stage of these proceedings, we treat it as having been waived. See R. 4:6-7; Rappeport v. Flitcroft, 90 N.J.Super. 578, 581, 218 A.2d 873 (App.Div.1966)). In reversing the summary judgment for defendant the Appellate Division acknowledged this Court's obse......