Opinion
No. CV05 400 76 29
February 17, 2006
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT, #101
On April 11, 2005, the plaintiff, Dora Coriano, filed a complaint against the defendants Paul E. Menhennett and New England Stair Company, Inc. This action arises out of injuries and losses the plaintiff allegedly sustained as a result of an automobile accident on April 2, 1998.
The plaintiff originally filed a negligence action against the defendants on April 1, 2000, one day before the original statute of limitations on that action had run. See Coriano v. Menhennett, Superior Court, judicial district of Fairfield, Docket No. CV 00 0374013 (prior action). The plaintiff alleged that Menhennett, while operating a motor vehicle during his course of employment with New England Stair Co., hit the back of the plaintiff's motor vehicle when she activated her left turn signal. As a result of Menhennett's negligence, the plaintiff allegedly suffered injuries and losses.
The court can take judicial notice of the court file in the original matter. See Gillum v. Yale University, 62 Conn.App. 775, 780, n. 4, 773 A.2d 986, cert. denied, 256 Conn. 929, 776 A.2d 1146 (2001). While a pattern of delay in a present action can also be considered, the court must ultimately predicate its decision on the plaintiff's conduct in the original action. Id., 783 n. 7.
The following is a procedural history of the plaintiff's prior action. The defendant filed interrogatories and requests for production on May 5, 2000. On June 2, 2000, the plaintiff moved to extend the time to comply with the discovery until July 3, 2000. When the plaintiff still did not comply, on March 14, 2001, the defendants filed a motion for nonsuit for failure to comply with interrogatories and production requests dated May 5, 2000. The plaintiff filed a notice of compliance on April 6, 2001. On August 9, 2001, the defendants filed another motion for nonsuit for failure to comply with interrogatories and production requests dated March 12, 2001. The court, Gallagher, J., granted the motion on September 4, 2001 stating that nonsuit will enter on October 15, 2001 if the plaintiff has not fully complied with the defendants' discovery requests. On October 18, 2001, the defendant filed another motion for nonsuit for failure to comply with the court's order of September 4, 2001. On May 3, 2002, the court entered a judgment of dismissal pursuant to the docket management program.
The prior action's court file shows that a judgment of nonsuit was not entered on October 15, 2001.
On August 30, 2002, almost four months later, the plaintiff filed a motion to reopen and vacate requesting that the judgment of dismissal entered on May 3, 2002 be vacated. The court, Rush, J., granted the motion on September 30, 2002. On February 21, 2003, the defendant filed another motion for judgment of dismissal because the plaintiff still failed to comply with the court's order dated September 4, 2001. On January 28, 2004, the defendant filed a motion to compel seeking that the court order the plaintiff to provide a signed medical authorization and to comply with discovery. The court, Thim, J., granted the motion on March 22, 2004. On June 21, 2004, the defendant filed a motion for order seeking that the court dismiss the plaintiff's cause of action for failure to comply with the rules of discovery and the court's order granting the defendant's motion to compel. The court, Dewey, J., granted the motion and a judgment of nonsuit was entered on July 27, 2004. The plaintiff filed a motion to reopen almost four months later, on November 22, 2004, but it was denied by the court, Dewey, J., on December 13, 2004.
In an affidavit attached to the plaintiff's motion to reopen and vacate, the plaintiff's counsel stated that he was unable to satisfy the defendants' discovery requests despite repeated requests on the plaintiff's doctors. He also stated that he would make a diligent effort to comply.
The plaintiff brings the present action pursuant to General Statutes § 52-592, the accidental failure of suit statute, and alleges the same cause of action as she did in the prior action. On June 20, 2005, the defendants filed a motion for summary judgment, accompanied by a memorandum in support, an answer and special defense. The special defense is that the plaintiff's action is barred by General Statutes § 52-584, the statute of limitations for negligence actions. On October 6, 2005, the plaintiff filed a memorandum in opposition, accompanied by an affidavit from the plaintiff's attorney in the prior action.
"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]." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 399-400, 876 A.2d 522 (2005). "Summary judgment may be granted where the claim is barred by the statute of limitations." Doty v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996). Summary judgment is appropriate on statute of limitation grounds when the "material facts concerning the statute of limitations [are] not in dispute . . ." Burns v. Hartford Hospital, 192 Conn. 451, 452, 472 A.2d 1257 (1984).
The defendants move for summary judgment on the ground that the plaintiff's claim is barred by § 52-584, the statute of limitations for negligence actions. In support of the motion, the defendants argue that the plaintiff cannot avail herself under § 52-592 because the dismissal of the plaintiff's prior action was not "for matter of form." Finally, the defendants contend that the plaintiff's failure to comply with discovery requests and court orders resulted in the judgment of nonsuit, and that the plaintiff's behavior "greatly exceeds mistake, inadvertence or excusable neglect."
The plaintiff counters that even though her prior action was based upon a disciplinary dismissal, she is not excluded from bringing the present action under § 52-592. In support of her motion, the plaintiff relies on Ruddock v. Burrowes, 243 Conn. 569, 706 A.2d 967 (1998) for the proposition that "disciplinary dismissals are not excluded categorically from the relief afforded by [§ 52-592]."
Section 52-592, the accidental failure of suit statute, provides in relevant 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 . . . or if a judgment of nonsuit has been rendered . . . the plaintiff . . . may commence a new action . . . for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment." "[B]y its plain language, [§ 52-592] is designed to prevent a miscarriage of justice if the [plaintiff] fail[s] to get a proper day in court . . . It was adopted to avoid hardships arising from an unbending enforcement of limitation statutes . . . Its purpose is to aid the diligent suitor." (Citation omitted; internal quotation marks omitted Henriquez v. Allegre, 68 Conn.App. 238, 243-44, 789 A.2d 1142 (2002).
In the present action, the plaintiff was nonsuited for her attorney's failure to comply with the defendants' discovery requests and the court's orders. "A nonsuit for failure to comply with discovery is termed a disciplinary dismissal." Salvas v. Halperin, Superior Court, judicial district of Windham, Docket No. CV 03 0071552 (May 5, 2005, Riley, J.). "Disciplinary dismissals do not, in all cases, demonstrate the occurrence of misconduct so egregious as to bar recourse to § 52-592 . . . Whether the statute 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." (Citation omitted.) Ruddock v. Burrowes, supra, 243 Conn. 576-77. "[I]t is appropriate to consider each case along a continuum; at one extreme are dismissals for mistake or inadvertence, at the other extreme are dismissals for serious misconduct or a series of cumulative transgressions." Gillum v. Yale University, 62 Conn.App. 775, 783, 773 A.2d 986, cert. denied, 256 Conn. 929, 776 A.2d 1146 (2001). "Whether the prior dismissal was a `matter of form' is, in the absence of a genuine issue of material fact, a legal issue for the trial court to determine." (Internal quotation marks omitted.) Marino v. McAneany, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 03 0285666 (August 30, 2004, Frazzini, J.).
The affidavit from the attorney that represented the plaintiff in the prior action attempts to explain his noncompliance with the defendant's discovery requests. The plaintiff's attorney, however, merely states that he "diligently pursued" obtaining the medical records in response to the defendant's discovery requests. He further states that the plaintiff was treated by several physicians after the accident, which made it more difficult to obtain the information the defendants' attorney requested.
The plaintiff's attorney had four years to gather the necessary medical records to comply with the defendant's discovery requests, and the affidavit does not adequately explain the attorney's noncompliance with the court's orders. The plaintiff also did not show up at argument on the defendant's motion for summary judgment and did not provide any other evidence to explain that her noncompliance with the court's orders was due to "mistake, inadvertence or excusable neglect." See Ruddock v. Burrowes, supra, 243 Conn. 577. "A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). The fact that the plaintiff was treated by several physicians after the accident may be the reason for the delay stated by counsel, but it is not a material fact that would make a difference in the result of this case. The affidavit, therefore, does not present a genuine issue of material fact.
Furthermore, over the four-year period, the plaintiff's attorney continually failed to fully comply with the defendant's discovery requests and the court's orders, and filed motions to reopen just before the filing deadlines approached. "Patterns of conduct, however, such as repeated dismissals for failure to prosecute and `continually running deadlines to their limits before filing motions to reopen or complying with court orders . . . far surpasses mistake, inadvertence or excusable neglect.'" (Internal quotation marks omitted.) Peterken v. Iovino, Superior Court, judicial district of Fairfield, Docket No. CV 03 0402502, (January 9, 2004, Wolven, J.). The plaintiff's noncompliance did not occur in circumstances such as "mistake, inadvertence or excusable neglect." Upon a review of the pleadings in the prior action, the plaintiff's noncompliance was due to her attorney's delinquent behavior. Therefore, because the plaintiff's attorney caused the prior action to be dismissed due to neglect which can not be deemed "excusable," the plaintiff cannot avail herself of the remedial nature of § 52-592.
Practice Book § 17-4 provides in relevant part: "Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which notice was sent." The first judgment of dismissal was entered on May 3, 2002. The plaintiff waited until August 30, 2002 to file a motion to reopen. The second judgment, the judgment of nonsuit, was entered on July 27, 2004 and the plaintiff waited until November 22, 2004 to file a motion to reopen.
In addition, "§ 52-592(a) does not guarantee that all cases will receive adjudication on their merits. Construction of the statute should not be so liberal as to render a statute of limitations for bringing a cause of action `virtually meaningless.'" Gillum v. Yale University, supra, 62 Conn.App. 786. The statute of limitations governing the present action elapsed on April 2, 2000. If the court allows the present action to go forward when the plaintiff's accident occurred over seven years ago, the statute of limitations for bringing a negligence action would be "virtually meaningless."
The applicable statute of limitations for negligence actions, § 52-584, provides in relevant part: "No action to recover damages for injury to the person . . . caused by negligence . . . shall be brought but within two years from the date when the injury is first sustained or discovered . . ."
For the foregoing reasons, the motion for summary judgment is hereby granted.