Opinion
No. UWY-CV-08-5011369-S
September 17, 2010
MEMORANDUM OF DECISION
I PROCEDURAL BACKGROUND
The parties in this action are the plaintiff, Jennie Finkle, Administratrix of the Estate of Barbara Eckert and the defendants, John Carroll and the Town of Watertown.
This action arises from the murder of Barbara Eckert by her former boyfriend, Mark Tannenbaum. On the morning of September 29, 2002, Tannenbaum shot and killed Eckert at their home in Watertown, and then drove to a remote location and committed suicide. The plaintiff, the administratix of Eckert's estate, filed her initial action on October 21, 2003 against the defendant town of Watertown and three police officers, Christopher Marciano, David McDonnell and Sergeant David Bromley. In her original action, the plaintiff brought suit, pursuant to General Statutes § 52-555, alleging that the three officers were negligent in authorizing the release of Mark Tannenbaum from police custody, who hours later killed Eckert. On April 10, 2008, the plaintiff withdrew the original action and commenced the present action on November 6, 2008, pursuant to General Statutes § 52-593 and § 52-555, against the defendant town of Watertown and the defendant police officer, John Carroll, III. The plaintiff has alleged in this action that the defendant Carroll negligently exercised the duty of care he owed Eckert by failing to properly charge Tannenbaum and by releasing him without proper conditions and restrictions. The plaintiff further alleges in her complaint that the negligence of the defendant Carroll resulted in the murder of Eckert by Tannenbaum a short time after his release from police custody. Count Two of the Complaint requests that the defendant Carroll be indemnified, pursuant to General Statutes § 7-465, by the defendant Town of Watertown.
The defendants have moved for summary judgment on Counts One and Two of the Complaint. The defendants argue in their motion for summary judgment that there is no genuine issue of material fact that (1) the defendant Carroll is shielded by governmental immunity for his alleged negligent act or omission; (2) the defendant Carroll was not the legal cause of Eckert's death; (3) Tannebaum's acts superseded any possible negligence on the part of the defendant Carroll and relieved the defendant Carroll of liability; (4) if the defendant Carroll is not negligent then the defendant Town of Watertown cannot be liable for indemnification under General Statutes § 7-465 for indemnification; and (5) the plaintiff's claims are barred by the statute of limitations.
The plaintiff filed an objection to the motion for summary judgment claiming that the issues on summary judgment argued in this case were identical to the issues argued in the previous 2003 action brought against three other police officers and the Town of Watertown. The plaintiff also argued that General Statutes § 52-593 "was expressly promulgated for this type of situation when an honest mistake was made as to the identity of the proper defendant." (Plaintiff's Objection p. 2.) The plaintiff attached as exhibits to her objection for summary judgment her objection to the 2003 summary judgment motion made in the 2003 case, the court's ruling on the 2003 summary judgment motion, and her objection to defendant's motion to dismiss in this action.
Oral argument was held on this motion on August 30, 2010. The court has reviewed the extensive exhibits attached to the defendants' motion for summary judgment which detail the history of the events in this case.
II. FACTUAL BACKGROUND
Eckert, the decedent, and Tannenbaum began a romantic relationship in 2000. Shortly thereafter, Tannenbaum moved into Eckert's home with her children from a previous marriage and the couple had a child together in 2001. The first time that the couple's domestic issues came to the attention of the Watertown police department was in July 2001, when the police were called to the home for a dispute. (Exhibit A to Motion for Summary Judgment.) At that time both Eckert and Tannenbaum denied that physical violence had occurred and stated that they had engaged in a loud verbal dispute. Id. Tannenbaum, however, stayed elsewhere that night to "prevent any further problems." Id.
On January 28, 2002, the Watertown police were called again to the residence of Eckert and Tannenbaum on Tannenbaum's complaint that Eckert had struck him in the chest. (Exhibit B to Motion for Summary Judgment.) Later that same day the Watertown police were called again to the residence of Eckert and Tannenbaum in response to Eckert's claim that Tannenbaum, throughout the day, had threatened over the phone to kill her. (Exhibit C to Motion for Summary Judgment.) The Watertown police went to Tannenbaum's place of business and arrested him. Id. Tannenbaum was charged with breach of peace and harassment in the second degree. Id. On January 29, 2002, the Waterbury Superior Court issued mutual protective orders that ordered Eckert to refrain from imposing any restraint upon the person or liberty of Tannenbaum and to refrain from threatening, harassing, assaulting, molesting or sexually assaulting Tannenbaum and a protective order which ordered Tannenbaum from imposing any restraint upon the person or liberty of Eckert and to refrain from threatening, harassing, assaulting, molesting or sexually assaulting Eckert. The Watertown police records recorded that Tannenbaum had a firearm. (Exhibit H to Motion for Summary Judgment.)
Two months later, on March 30, 2002, the Watertown police were once again involved with Eckert and Tannenbaum, when Tannenbaum caused an incident at his son's baptism. (Exhibit E to Motion for Summary Judgment.) The Watertown police responded to a disturbance call at Mary Magdalene Church in Watertown where bystanders reported that they saw Tannenbaum beating on Eckert's truck in the parking lot. Eckert reported that Tannenbaum had threatened to kill her and himself at the church. Id. Tannenbaum admitted he had created the disturbance and was arrested for breach of peace. Id.
The very next day on March 31, 2002, Eckert filed a complaint with the Watertown police department alleging that Tannenbaum had made a threatening phone call to her home and that he continued to harass her, in violation of the protective order. (Exhibit F to Motion for Summary Judgment.) Eckert informed the police that Tannenbaum told her that he had a gun, and was coming to kill her and take her "to hell with him," and he was going to kill himself as well. Id. Eckert reported to the Watertown police that she was "deathly afraid" of the man and she believed that "he is capable of carrying out this threat on my life." The Watertown police arrested Tannenbaum and charged him with violating a protective order, harassment and threatening. Id. Tannenbaum was held by the Watertown police on $25,000 bond until his court date the next day. Id. While in custody, Tannenbaum made references to committing suicide and was provided with medical evaluation and treatment outside of the police department. The Watertown police recorded that Tannenbaum had previously owned a firearm. (Exhibit I to Motion for Summary Judgment.)
Eckert obtained another protective order against Tannenbaum on April 1, 2002, which once again ordered him to refrain from imposing any restraint upon the person or liberty of Eckert and to refrain from threatening, harassing, assaulting, molesting or sexually assaulting Eckert. (Exhibit G to Motion for Summary Judgment.) Several months later, on June 7, 2002, at or about the time of Tannenbaum's guilty pleas on violation of protective order and threatening charges, Eckert wrote to the criminal court. She wrote in a letter that she had "been monitoring Tannenbaum's behavior through friends and/or associates and he has been going to counseling sessions and has been taking better care of himself. I feel if he continues with his counseling and continues to have a stable attitude that he should be allowed to come home and see his son." (Exhibit K to Motion for Summary Judgment.) On June 11, 2002, Tannenbaum entered guilty pleas to the violation of protective order and threatening charges. (Exhibit E to Motion for Summary Judgment.) The court records note the two guilty pleas and the message "no violence to Barbara Eckert." (Exhibit E to Motion for Summary Judgment.)
On September 28, 2002, Tannenbaum was called by Eckert's thirteen-year-old son late in the evening who told him that Eckert was not home and he needed relief from taking care of Eckert and Tannenbaum's one-year-old child. Tannenbaum arrived at the house and Eckert was not present. When Eckert arrived home at 1:30 a.m. with a male friend, Tannenbaum approached the car and began punching the driver's side window. (Exhibits LO to Motion for Summary Judgment.) Tannenbaum became upset when Eckert refused to leave the vehicle and began to punch the passenger side window. Id. Eckert and the male friend then drove to the Watertown police department to file a complaint against Tannenbaum. When Eckert was speaking with Officer Marciano at the Watertown police department her phone rang several times and Officer Marciano could hear a male voice yelling through the phone. Id. The third time Eckert's phone rang, Officer Marciano answered the phone and Tannenbaum stated "I'll kill you." Officer Marciano identified himself as a police officer and asked Tannenbaum for his location. Id. Tannenbaum told him he was at Eckert's residence. Id.
Three Watertown officers, including Officer Marciano, then traveled to Eckert's house and found Tannenbaum there. (Exhibits L O to Motion for Summary Judgment.) Officer Marciano smelled alcohol on Tannenbaum's breath at that time and found Tannenbaum to still be angry. (Exhibits L O to Motion for Summary Judgment.) Tannenbaum told police he wanted Eckert arrested for leaving the children in the residence alone. (Exhibit O to Motion for Summary Judgment.) Tannenbaum was arrested and taken back to the Watertown police station and was processed. Over $1,100 dollars in cash was found on his person when he was processed at the station between 1:30 a.m. and 3:00 a.m. in the morning. (Exhibit L to Motion for Summary Judgment.) After processing, the defendant Carroll made the decision later that evening to release Tannebaum on a promise to appear. Id. The defendant Carroll also instructed Officer Marciano to bring Tannenbaum back to the Eckert house to retrieve his motorcycle. Id.
After being released, Tannebaum was driven back to Eckert's house by Officer Marciano for his motorcycle. (Exhibit L to Motion for Summary Judgment.) Officer Marciano helped Tannenbaum get his leather jacket from inside the house and then watched Tannenbaum leave the premises on his motorcycle. Id. At 4:45 a.m. Yellow Cab company, out of Waterbury, was called for a fare from a business establishment called the Tattoo Parlor on Rubber Avenue in Naugatuck to Watertown. (9/30/02 Police Report; Exhibit R to Motion for Summary Judgment.) Tannebaum was picked up by a cab at 5:20 a.m. and told the driver of the cab to take him to Watertown "as fast as he could." Id. Tannenbaum asked the cab driver to slowly drive past Eckert's house on Greenwood Avenue and asked the driver to drop him off on Westbury Park Road in the area near the back of Eckert's house. Id. The cab driver then saw Tannebaum walk through several back yards towards Greenwood Avenue where Eckert resided. Id. Although Tannenbaum asked the cab driver to wait, the driver told police he "called my dispatcher and said don't send me back here because this guy has a problem" and then drove away. Id. Tannenbaum murdered Eckert and then killed himself.
III
CT Page 18814
DISCUSSION A. Summary Judgment
The defendants have moved for summary judgment as to all the counts of the plaintiff's complaint. "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." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). "[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way . . . [A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party . . . [A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." (Citations omitted; emphasis in original; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003)."[T]he genuine issue aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of a case." (Citations omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all material fact, which, under applicable principles of substantive law, entitle him to judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden, the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006). "In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).
1. GOVERNMENTAL IMMUNITY
The defendants have first moved for summary judgment as to Count One of the complaint on the grounds that the defendant Carroll is shielded by governmental immunity for his alleged negligent act or omission surrounding the underlying matter. "The [common law] doctrines that determine the tort liability of municipal employees are well established . . . Generally, a municipal employee is liable for the misperformance of ministerial acts, but has qualified immunity in the performance of governmental acts . . . Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature . . . The hallmark of a discretionary act is that it requires the exercise of judgment . . . In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion." (Citations omitted; internal quotation marks omitted.) Martel v. Metropolitan District Commission, 275 Conn. 38, 48-9, 881 A.2d 194 (2005).
"Municipal officials are immune from liability for negligence arising out of their discretionary acts in part because of the danger that a more expansive exposure to liability would cramp the exercise of official discretion beyond the limits desirable in our society . . . Discretionary act immunity reflects a value judgment that — despite injury to a member of the public — the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury . . . In contrast, municipal officers are not immune from liability for negligence arising out of their ministerial acts, defined as acts to be performed in a prescribed manner without the exercise of judgment or discretion . . . This is because society has no analogous interest in permitting municipal officers to exercise judgment in the performance of ministerial acts." (Citations omitted; internal quotation marks omitted.) Doe v. Petersen, 279 Conn. 607, 614-15, 903 A.2d 191 (2006).
"There are three exceptions to discretionary act immunity. Each of these exceptions represents a situation in which the public official's duty to act is [so] clear and unequivocal that the policy rationale underlying discretionary act immunity — to encourage municipal officers to exercise judgment — has no force . . . First, liability may be imposed for discretionary act when the alleged conduct involves malice, wantonness or intent to injure . . . Second, liability may be imposed for a discretionary act when a statute provides for a cause of action against a municipality or municipal officer for failure to enforce certain laws . . . Third, liability may be imposed when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm . . ." (Citations omitted; internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 319-20, 907A.2d 1188 (2006).
"Discretionary act immunity is abrogated when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm . . . By its own terms, this test requires three things: (1) an imminent harm; (2) an identifiable victim; and (3) a public official to whom it is apparent that his or her conduct is likely to subject victim to that harm." (Internal quotation marks omitted.) Doe v. Petersen, supra, 279 Conn. 616.
In the present case, the court finds that the acts alleged against defendant Carroll were discretionary acts. In looking at the possible exceptions to governmental immunity for discretionary acts, the court finds and the defendants concede, that the only potentially relevant exception is the identifiable person-imminent harm exception. The defendant has assumed, but not conceded, for purposes of this motion that Eckert was an identifiable victim. Viewing the evidence in the light most favorable to the non-moving party, as required, the court finds that there are genuine issues of material fact as to whether Eckert was an identifiable victim, whether there was imminent harm present to Barbara Eckert on September 29, 2002 and whether it was apparent to the defendant Carroll that his conduct was likely to subject Eckert to harm. Accordingly, the defendant's motion for summary judgment on governmental immunity grounds is denied.
2. Legal Cause of Death of Plaintiff's Decedent
The defendants next argue that the defendant Carroll's actions were not the proximate or actual cause of the plaintiff decedent's death and summary judgment should be granted as to Count One of the Complaint.
"[L]egal cause is a hybrid construct, the result of balancing philosophic, pragmatic and moral approaches to causation. The first component of legal cause is causation in fact. Causation in fact is the purest legal application of . . . legal cause. The test for cause in fact is, simply, would the injury have occurred were it not for the actor's conduct . . . Because actual causation, in theory, is virtually limitless, the legal construct of proximate cause serves to establish how far down the causal continuum tortfeasors will be held liable for the consequences of their actions . . . The fundamental inquiry of proximate cause is whether that harm that occurred was within the scope of foreseeable risk created by the defendant's negligent conduct . . . In negligence cases . . . in which a tortfeasor's conduct is not the direct cause of the harm, the question of legal causation is practically indistinguishable from an analysis of the extent of the tortfeasor's duty to the [victim]." (Internal quotation marks omitted.) Malloy v. Colchester, 85 Conn.App. 627, 633-34, 858 A.2d 813, cert. denied, 272 Conn. 907, 863 A.2d 698 (2004). The determination of the nature of the legal duty owed, if any, must be rooted in "the fundamental policy of the law that a tortfeasor's responsibility should not extend to the theoretically endless consequences of the wrong." (Internal quotation marks omitted.) Id., 634. "Foreseeable acts" can include the criminal acts of third parties. Doe v. Manheimer, 212 Conn. 748, 767, 563 A.2d 699 (1989), overruled on other grounds by Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 662 A.2d 753 (1995).
"[T]he test of proximate cause is whether the defendant's conduct is a substantial factor in producing the [victim's] injury." (Internal quotation marks omitted.) Id. To that end, "[t]he question of proximate causation generally belongs to the trier of fact because causation is essentially a factual issue . . . It becomes a conclusion of law only when the mind of a fair and reasonable [person] could reach only one conclusion; if there is room for reasonable disagreement the question is one to be determined by the trier as a matter of fact." (Citations omitted; internal quotation marks omitted.) Stewart v. Federated Dept. Stores, Inc., supra, 234 Conn. 611.
Viewing the evidence in the light most favorable to the non-moving party, as required, the court finds that a fair and reasonable person could not reach only one conclusion with regard to the legal cause, actual or proximate, of Eckert's death and that this issue should be determined by the trier as a matter of fact. The court finds that there are genuine issues of material fact as to whether the defendant Carroll's actions were the legal cause of the death of plaintiff's decedent, and the defendants' motion for summary judgment as to Count One of the Complaint on these grounds is denied.
3. Superseding Conduct By Tannenbaum
Courts in Connecticut have often left it to the fact finder to determine whether the intentional criminal conduct of a third party constitutes a superseding cause that would relieve the defendant of liability. Alexander v. Vernon, 101 Conn.App. 477, 485, 923 A.2d 748 (2007). Sullivan v. Metro-North Commuter Railroad Co., 292 Conn. 150, 165-67, 971 A.2d 676 (2009). See also Defendants' Motion for Summary Judgment p. 23.
Viewing the evidence in the light most favorable to the non-moving party, as required, the court does not find that the mind of a fair and reasonable person could reach only one conclusion as to this issue. The court finds that there are genuine issues of material fact as to whether Tannenbaum's criminal attack on Eckert superseded any potentially negligent conduct on the part of the defendant Carroll. Accordingly, the defendants' motion for summary judgment on Count One on these grounds is denied.
4. Town of Watertown's Motion for Summary Judgment
The defendant Town of Watertown has moved for summary judgment as to Count Two of the Complaint under General Statutes § 7-465 on the grounds that an indemnity suit is predicated upon prior findings of individual negligence on the part of the employee and the municipality's employment relationship with that individual. The defendant Town of Watertown argues that since the plaintiff has failed to make a legally sufficient showing of negligence as to the defendant Carroll, both because he was not the legal or proximate cause of the death of Eckert and because he is shielded by governmental immunity, the plaintiff cannot sustain a claim for indemnification as against the defendant Town of Watertown.
As the court has not found in the defendant Carroll's favor on these issues and has found genuine issues of material fact with respect to these issues. The court finds there is a genuine issue of material fact as to the defendant Town of Watertown's liability. Summary judgment as to Count Two of the Complaint on these grounds is denied.
5. Plaintiff's Claims Under General Statutes § 52-593.
The defendants next move for summary judgment with respect to Counts One and Two of the Complaint on the grounds that the two-year statute of limitations contained in General Statutes § 52-555 bars these claims. The plaintiff argues that General Statutes § 52-593, which is entitled "Action against Wrong Defendant," allowed her to bring this action six years after the events in question. There is no question that if this case is not saved by General Statutes § 52-593, it is time-barred by the two year statute of limitations contained in General Statutes § 52-555.
There is no factual dispute that Eckert died on September 29, 2002 and that the current action was brought on November 6, 2008. The plaintiff filed her initial action in 2003 and withdrew it in April 2008 after discovering she had named the wrong defendants. The plaintiff filed the present action in November 2008, within one year after withdrawing the first action. General Statutes § 52-593 provides, in relevant part, "When a plaintiff in any civil action has failed to obtain judgment by reason of failure to name the right person as defendant therein, the plaintiff may bring a new action and the statute of limitations shall not be a bar thereto if service of process in the action is made within one year after the termination of the original action."
"[A] right person . . . is one who is, as a matter of fact is, a proper defendant for the legal theory alleged." Cogan v. Chase Manhattan Auto Financial Corp., 276 Conn. 1, 8, 882 A.2d 597 (2005). "Our Supreme Court has recognized that § 52-593 applies only in circumstances in which the plaintiff's original action failed by reason of naming, in fact, the wrong defendant; that is in cases in which the naming of the wrong defendant was the product of a reasonable and honest mistake of fact as to the identity of the truly responsible individual." Kronberg v. Peacock, 67 Conn.App. 668, 672, 789 A.2d. 510, cert. denied, 260 Conn. 902, 793 A.2d 1089 (2002) citing Perzanowski v. New Britain, 183 Conn. 504, 507, 440 A.2d 763 (1981). Where a prior action fails as a result of a legal mistake, as opposed to a factual mistake, the subsequent action is not saved by § 52-593. Isidro v. State, 62 Conn.App. 545, 549-51, 771 A.2d 257 (2001).
The defendants argue that the plaintiff's failure to name the defendant Carroll in the original action does not provide her with the right to commence the second action. The defendants contend that a failure to name all of the defendants from whom she could have recovered in her original action does not constitute a failure to name a proper party pursuant to General Statutes § 52-593. The plaintiff has argued that as soon as she found out defendant Carroll was the person who made the decision regarding the release of Tannenbaum she withdrew her action against the other officers and commenced the present action. In the original action, the plaintiff failed to name the very party, the defendant Carroll, who was responsible for releasing Tannenbaum on September 29, 2002. The court has reviewed the extensive exhibits attached to the defendant's motion for summary judgment, including the police reports, and there is no reference to the defendant Carroll or what his role was the night of September 29, 2002. The present case is not a situation where the plaintiff failed to name all of the potentially liable defendants.
Viewing the evidence in the light most favorable to the non-moving party, as required, the court finds that the plaintiff has come forth with a sufficient evidentiary foundation to demonstrate that the plaintiff made a reasonable and honest mistake of fact in naming the original officers in her original action and failing to name the defendant Carroll in the first action.
The defendants next argue that General Statutes § 52-593 is inapplicable, as the plaintiff never obtained a judgment in the prior action dismissing it for failure to name the right person as defendant therein. The defendants argue that the plaintiff, instead of obtaining a judgment, made the "unilateral, arbitrary and voluntary decision to withdraw the case." The plaintiff in her objection to the motion for summary judgment does not disagree and at oral argument on this motion counsel conceded that in fact the original action was voluntarily withdrawn.
In Billerback v. Cerminara, 72 Conn.App. 302, 306, 805 A.2d 757 (2002), the Appellate Court held that the language of § 52-593 means that "once the plaintiff discovered that she had filed a complaint against an improper party, she could file the claim against the proper party and not be barred by the statute of limitations, only after the termination of the original action for failure to name the right person as defendant in the first action." (Internal quotation marks' omitted.) In Billerback, the plaintiff argued that "§ 52-593 may be applied to benefit cases in which the plaintiff in the original action mistakenly named the wrong defendant and, instead of acquiring the required judgment by reason of failure to name the right person as defendant, began a second action before the first action concluded." (Internal quotation marks omitted.) Id. 307.
The Appellate Court was not persuaded by the plaintiff's argument and held that "[t]he plaintiff was free to pursue the original action to obtain a judgment for failure to name the proper defendants and then, after the judgment was rendered, make the second claim." Billerback, supra, 72 Conn.App. 308. The Appellate Court affirmed the trial court's finding that there was no genuine issue of material fact that the action was not saved by § 52-593, as the plaintiff in that action was required to obtain a judgment against the wrongly named defendants and a dormancy calendar dismissal was not the equivalent of obtaining a judgment necessary to satisfy the requirements of § 52-593. Id. 309.
In the present action, it is undisputed that the plaintiff did not obtain a judgment of dismissal in the original action and voluntarily withdrew her action. According to the Appellate Court's holding in Billerback, the plaintiff's failure to obtain a judgment of dismissal in her original action is fatal to satisfying all of the criteria set forth in General Statutes § 52-593.
Based on the foregoing, the court finds that there is no genuine issue of any material fact that the defendants are entitled to summary judgment on Counts One and Two of the Complaint on statute of limitations grounds, as all of the criteria of § 52-593 cannot be satisfied by the plaintiff. The defendants' motion for summary judgment on these grounds is granted.
IV CONCLUSION
Based on the foregoing, this court denies the defendants' motion for summary judgment on governmental immunity, legal cause, superseding conduct, indemnification pursuant to General Statutes Section 7-465 grounds, and grants the defendants' motion for summary judgment with respect to Counts One and Two of the Complaint on statute of limitations grounds.