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Greczyn v. Colgate-Palmolive3/21/2005
str. Corp., 154 N.J. Super. 264 (App. Div. 1977), certif. denied, 75 N.J. 605 (1978), the court declined to extend the statute of repose to allow Hudson County to assert a claim for defects discovered in the county administration building in 1975 against the builder who completed construction in 1960. Hudson County's proposed exception to the ten-year statute of repose for allegations of fraud was unavailing in the face of the court's determination that " uch an exception would quickly engulf the statute and render it worthless." Id. at 269.
In Stix v. Greenway Development Company, Inc., 185 N.J. Super. 86 (App. Div. 1982), the Appellate Division affirmed a summary judgment dismissing plaintiff's 1980 complaint against a builder for negligent construction of a house completed prior to 1963. The court stated that the "plain unambiguous" language of N.J.S.A. 2A:14-1.1 makes no exception for claims that are filed after expiration of the statute of repose, even those based on a theory of fraudulent misrepresentation. Id. at 89-90.
We do not read those cases as dispositive of the issue before us. In Rosenberg, the complaint was filed thirty-three years after the "improvement" and in Stix, Hudson County and O'Connor, sixteen, fifteen and eleven years later, respectively. The statute of repose, by its very terms -- "no action... shall be brought... more than ten years after... construction" -- bars those claims. In contrast to them, Greczyn both was injured and filed an action within the ten-year period of repose.
B.
The Appellate Division cited several out-of-state cases as bearing on the issue presented here. In Tindol v. Boston Hous. Auth., 487 N.E.2d 488 (Mass. 1986), a minor plaintiff, scalded in a public housing complex, commenced an action against the Boston Housing Authority in 1979 and in 1984 sought to amend the complaint to add architects and engineers. At the time, the statute of repose for tort actions arising from improvements to real property prohibited any action commenced "more than siX years after the performance or furnishing of such design, planning, construction or general administration." Id. at 489 (quoting Mass. Gen. Laws c. 260, § 2b (1984)). The relevant improvement was completed in 1977. Plaintiff argued that the amendment adding an architecture firm and an engineering company "related back" to the original filing. Id. at 490. The Supreme Judicial Court disagreed, concluding, " pplication of the relation-back doctrine would have the effect of reactivating a cause of action that the Legislature obviously intended to eliminate." Id. at 491 (quotation marks omitted).
Tindol was faced with a complaint that was filed outside the six-year statute of repose and no fictitious-party filing was implicated. Tindol is thus not of assistance in our present analysis except insofar as we agree that if Greczyn had not commenced her action within the ten-year period, she could not avoid the strictures of the repose statute.
Likewise, in Nett v. Bellucci, 774 N.E.2d 130 (Mass. 2002), a minor plaintiff sought to amend a complaint and add a defendant before expiration of the statute of repose but did not file the complaint until after expiration of the statute. 774 N.E.2d at 132-34. The court in Nett discussed statutes of repose:
Both the statute governing medical malpractice tort claims involving minors, G.L. c. 231, § 60D, and the statute governing medical malpractice tort claims generally, G.L. c. 260, § 4, provide that "in no event shall any such action be commenced more than seven years after occurrence of the act or omission which is the alleged cause of the injury upon which such action is based" (emphasis added). Li
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