Opinion
No. CV02-0344668 S
August 29, 2003
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #105
This action was brought by the plaintiff, Barbara Waldman, pursuant to the Connecticut accidental failure of suit statute, General Statutes § 52-592. Waldman originally brought suit in the Judicial District of Danbury, Docket No. CV 98 0331721, in May of 1998 (original action). According to the original complaint, Waldman alleged that she sustained personal injuries after falling from a deck located at a residential dwelling in Brookfield, Connecticut, that was owned by the defendants, Andrew and Sheila Jayaraj, and leased to Waldman's son and daughter-in-law.
The original action was scheduled for a pretrial conference on February 13, 2001. Waldman's counsel, H. Jeffrey Beck, failed to appear at the conference and, as a result, on February 14, 2001, the court, Carroll, J., entered a judgment of dismissal against Waldman. On February 15, 2001, Waldman filed a motion to open the judgment of dismissal. Waldman's motion to open was granted by the court, Carroll, J., on March 21, 2001. The court issued an order scheduling a status conference for April 16, 2001. Beck again failed to appear on behalf of Waldman, and the court, Carroll, J., again entered a judgment of dismissal against Waldman. On April 23, 2001, Waldman again filed a motion to open judgment of dismissal and the Jayarajs filed an objection to the motion on April 24, 2001. The court, Carroll, J., denied the motion to reopen and sustained the Jayarajs' objection thereto on May 14, 2001.
The plaintiff actually filed a motion to open judgment of nonsuit but the judgment was actually for dismissal.
See footnote 1.
Following the denial of her second motion to open the judgment on June 2, 2001, Waldman filed a motion to reargue that decision. The Jayarajs objected to the motion and the court, Carroll, J., denied the motion and sustained the Jayarajs' objection on June 26, 2001. On July 16, 2001, Waldman amended the motion to reargue, the Jayarajs again objected to it, and the court, Carroll, J., again denied the motion and sustained the objection on July 25, 2001.
Following the dismissal of the original action on December 26, 2001, Waldman filed a separate action in the Judicial District of Danbury, Docket No. CV 01 0344583, in May of 1998 under General Statutes § 52-410 in which she sought an order compelling the Jayarajs to proceed to arbitration. Waldman claimed there was an agreed-upon arbitration proceeding which should have survived dismissal. The Jayarajs objected to the motion and on April 15, 2002, the court, Radclffe, J., denied the motion.
Waldman commenced the present action, pursuant to General Statutes § 52-592, the accidental failure of suit statute (saving statute) on June 14, 2002, with service on the Jayarajs. In the complaint, Waldman alleges the same claims she alleged in the original action. The Jayarajs filed this motion for summary judgment claiming the new complaint was untimely filed pursuant to General Statutes §§ 52-584 and 52-592 and that Beck's dilatory conduct was sufficiently egregious so as to bar Waldman from relying on the saving statute.
General Statutes § 52-592 provides in part: "(a) If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits . . . for any matter of form . . . the plaintiff . . . may commence a new action . . . for the same cause at any time within one year after the determination of the original action . . ."
DISCUSSION
"The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. Practice Book [§ 17-46] . . . A material fact . . . [is] a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) H.O.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 559-60, 783 A.2d 993 (2001). "The existence of the genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence." (Internal quotation marks omitted.) Pion v. Southern New England Telephone Co., 44 Conn. App. 657, 663, 691 A.2d 1107 (1997).
This action arises out of personal injuries Waldman allegedly suffered on August 25, 1997, as a result of a fall from a deck at a residential premises. Her claim against the Jayarajs is based on their allegedly negligent maintenance of the premises. Accordingly the applicable statute of limitations is General Statutes § 52-584, which provides for a two-year statute of limitations for personal injury actions caused by negligence. Waldman's injury occurred August 25, 1997, and she commenced this action on June 14, 2002, almost five years later and clearly beyond the statute of limitations. Although Waldman claims that the current suit is pursuant to the saving statute, however, Waldman also failed to file this action in a timely manner under the statute. Section 52-592 clearly provides that the plaintiff may file a new action "for the same cause at any time within one year after the determination of the original action . . ."
General Statutes § 52-584 provides: "No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of . . ."
There is some dispute between the parties as to when the original action was determined allowing the one-year statute of limitations for filing a new action to toll for the purposes of § 52-592. The parties both cited and accepted the decision in Ingriselli v. Frisina, Superior Court, judicial district of New Britain, Docket No. CV 01 0507793 31 (March 15, 2002, Wiese, J.) ( 31 Conn.L.Rptr. 16), in which the court discussed the meaning of "determination of the original action," as the phrase appears in § 52-592. The court noted a split of authority on whether the "determination" of the original action, which begins the one-year period, starts when a non-suit dismissal is entered, or when a motion to reopen is denied. The court ultimately accepted the line of cases which held that the period tolled when the motion to reopen was denied. The court in coming to that conclusion also considered Morelli v. Manpower, Inc., 226 Conn. 831, 628 A.2d 1311 (1993), which dealt with the appealability of the denial of a motion to open a Practice Book § 14-3 dismissal. In Morelli, the court stated "[i]n terms of finality, we can perceive no difference between the judgment of dismissal itself and the denial of a motion to open that judgment. Because, pursuant to General Statutes § 52-592, the accidental failure of suit statute, both the dismissal and the denial of a motion to open the dismissal may be followed by reinstitution of the underlying claim regardless of whether a motion to open the judgment has been filed . . . there is nothing less `final' about the denial of a motion to open the judgment of dismissal than there is about the judgment of dismissal itself." (Citations omitted.) Id., 836-37.
One line of cases stand for the proposition that a matter is "determined" within the meaning of General Statutes § 52-592 when a nonsuit is entered and not when a motion to reopen or to restore is denied. See McDowell v. Home Depot U.S. A., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 36438 (June 12, 2001, Rush, J.); Jonas v. Unsmoke Services, Inc., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 388354 (June 6, 1991, Maloney, J.) 4 Conn.L.Rptr. 137; Lee v. Phillips, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 352222 (November 29, 1988, Corrigan, J.) ( 4 CSCR 43); Morrisette v. Archambault, 31 Conn. Sup. 302, 304, 329 A.2d 622 (1973). A number of other Superior Court judges have concluded, based on the language in Morelli v. Manpower, Inc., 226 Conn. 831, 628 A.2d 1311 (1993), that a matter is "determined" when the motion to reopen is denied. See Leonard v. Lucas, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 356286 (December 24, 1998, Skolnick, J.); Duhig v. Bengston, Superior Court, judicial district of New Haven at Meriden, Docket No. 255822 (March 11, 1997, DiPentima, J.) ( 19 Conn.L.Rptr. 17); Polesak v. Medical Laboratory Service, Superior Court, judicial district of Bridgeport at Bridgeport, Docket No. 339545 (July 17, 1997, Skolnick, J.) ( 20 Conn.L.Rptr. 97).
The parties now disagree over whether Waldman's subsequent motion to reargue the motion to reopen the judgment of dismissal further delays the tolling of the one-year period of § 52-592. Waldman claims that the original action was not determined until the denial of the motion to reargue while the Jayarajs claim the action was determined at the denial of the motion to reopen. Based on the reasoning in Morelli, it is apparent that a case is deemed to be determined when it is "final" and appealable. Although there appears to be no case law directly commenting on this issue, the court dealt with an analogous situation in Opoku v. Grant, 63 Conn. App. 686, 778 A.2d 981 (2001), where the plaintiff claimed that the trial court's granting of a motion to reargue tolled the four-month limitation period set forth in General Statutes § 52-212 (a) for filing a motion to open. In disagreeing with the plaintiff the court pointed out, "[the plaintiff] argues that because Practice Book § 63-1(c)(1) provides that certain motions toll the time to appeal, those motions also should toll the four month time limit of General Statutes § 52-212. We disagree. Practice Book § 63-1(c)(1) provides in relevant part: `If a motion is filed within the appeal period that, if granted, would render the judgment . . . ineffective, a new twenty-day period for filing the appeal shall begin on the day that notice of the ruling is given on the last such outstanding motion . . . Motions that, if granted, would render a judgment . . . ineffective include, but are not limited to, motions that seek: the opening or setting aside of the judgment [and] . . . reargument of the judgment or decision . . . Motions that do not give rise to a new appeal period include those that seek . . . reargument of a motion listed in the previous paragraph.' (Emphasis added.) As Practice Book § 63-1(c)(1) makes absolutely clear, a motion to open a judgment does give rise to a new appeal period, but a motion to reargue a motion to open does not." (Emphasis in original; internal quotation marks omitted.) Id., 694.
Waldman also attempted to claim that her filing of a separate action, an application to compel arbitration, extended the deadline for commencing a new action under § 52-592. This is not so. General Statutes § 52-592, provides, in part, that "the plaintiff . . . may commence a new action, . . . for the same cause at any time within one year . . ." (Emphasis added.) The cause of action in the original action and the present action is not the same cause of action on which her application to compel arbitration was based.
In Gallo v. G. Fox Co., 148 Conn. 327 (1961), the court, in disallowing the use of § 52-592 to bring a new cause of action, rather than a new complaint based on substantially the same cause of action, considered the meaning of the phrase "cause of action" as follows: "A cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief . . . A right of action at law arises from the existence of a primary right in the plaintiff, and an invasion of that right by some delict on the part of the defendant. The facts which establish the existence of that right and that delict constitute the cause of action . . . A change in, or an addition to, a ground of negligence or an act of negligence arising out of the single group of facts which was originally claimed to have brought about the unlawful injury to the plaintiff does not change the cause of action . . . It is proper to amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same, but where an entirely new and different factual situation is presented, a new and different cause of action is stated." (Citations omitted; internal quotation marks omitted.) Id., 330.
In this case, Waldman's application to compel arbitration was a cause of action sounding in breach of contract based on the defendants' refusal to proceed to arbitration pursuant to a written agreement to do so. The original action and the pending action however were for negligence based on the defendants' alleged negligent maintenance of their property.
For the foregoing reasons, the original action was determined for the purposes of § 52-592 when the motion to reopen was denied on May 14, 2001, and the one-year period began on the date Waldman had notice thereof. "It is axiomatic that the right to bring a new action under [§ 52-592] assumes that the party who is to exercise the right be given the opportunity to know that the original action has been terminated." (Internal quotation marks omitted.) Henriquez v. Allegre, 68 Conn. App. 238, 244, 789 A.2d 1142 (2002). It is apparent from the record that Waldman had notice of the denial of the motion to reopen no later than June 2, 2001, because her motion to reargue bore that date and referenced the court's May 23, 2001 denial notice. Waldman did not commence the present action until June 14, 2002, more than a year after she had actual notice of the denial of her motion to reopen, therefore this action was not timely filed under the requirements of § 52-592.
This was the date the writ, summons and complaint were served on the defendants. "[A]n action is not `commenced' until process is actually served upon the defendant." Lacasse v. Burns, 214 Conn. 464, 475, 572 A.2d 357 (1990).
The Jayarajs also claimed Beck's dilatory conduct was sufficiently egregious so as to bar the plaintiff from relying on the saving statute. Because the filing of the new action was untimely the court does not need to consider this claim and does so only in the interest of completeness. A party may only use the protection of § 52-592 if the reason for dismissal of the party's prior action was for a "matter of form." The Supreme Court held in Ruddock v. Burrows, 243 Conn. 569, 570, 706 A.2d 967 (1998), that whether a dismissal of a prior proceeding permitted a plaintiff recourse under § 52-592, "depends upon the nature and the extent of the conduct that led to the disciplinary dismissal." The court further stated, "[w]hether [§ 52-592] applies cannot be decided in a factual vacuum. To enable a plaintiff to meet the burden of establishing the right to avail himself or herself of the statute, a plaintiff must be afforded an opportunity to make a factual showing that the prior dismissal was a matter of form in the sense that the plaintiff's noncompliance with a court order occurred in circumstances such as mistake, inadvertence or excusable neglect." (Internal quotation marks omitted.) Id., 576-77.
Whether a parties' actions rise above the level of mistake, inadvertence or excusable neglect is a question of fact to be determined by the circumstances of each case. One of the more nefarious cases in which the party's actions were deemed to be egregious was Gillum v. Yale University, 62 Conn. App. 775, 783-84, 773 A.2d 986, cert. denied, 256 Conn. 929, 776 A.2d 1146 (2001), in which the court found that the case was "beset by lackadaisical behavior by the plaintiffs at every turn . . . In addition to the fact that the plaintiffs' conduct occasioned three dismissals, which hampered the movement of the case toward a resolution, the plaintiffs further hindered the progress of the case by continually running deadlines to their limits before filing motions to reopen or complying with court orders . . . That pattern of conduct, evidenced by the court file, far surpasses mistake, inadvertence or excusable neglect." Attorney Beck's affidavit in the present case provides ample evidence to show that his conduct did not rise to the level of egregious but was instead in the nature of excusable neglect.
For the foregoing reasons, the court hereby grants the defendants' motion for summary judgment.