Opinion
No. DBD-CV-09-6001545S
February 23, 2010
MEMORANDUM OF DECISION
I PROCEDURAL HISTORY AND BACKGROUND
The parties in this action are the plaintiff, The Shore Winds, LLC, and the defendant, Lawrence Timeus. The plaintiff operates a nursing care facility called Shore Winds located in upstate New York and the defendant is an approximately eighty-year-old man who entered that facility on March 2, 2004. An admission agreement was allegedly provided to the defendant upon his admission to the facility. (Exhibit A to the Hurlbut Affidavit in Support of Plaintiff's Motion for Summary Judgment.) At the time of his admission to the plaintiff's facility, neither the defendant, nor any of his family members, signed the admission agreement.
The proposed designated representative for the defendant under the admission agreement was a Michael Timeus. In the attachment C to the admission agreement, titled "Personal Agreement," Michael Timeus was identified as "an individual with legal authority to represent and/or legal access to funds or resources of Lawrence Timeus." (See attachment C to the Admission Agreement dated March 2, 2004.) Among the obligations listed in the Personal Agreement, was the obligation to "cooperate with the facility in obtaining payment from the resident's funds for the resident's charges, assist resident in making payments due, assist in obtaining Medicaid benefits." Id. Michael Timeus never signed the Personal Agreement.
Five years later, on March 27, 2009, the plaintiff filed an action for breach of contract and unjust enrichment against the defendant in the Supreme Court of the State of New York, County of Monroe relating to his failure to pay the cost of skilled nursing care and services allegedly rendered to the defendant while he was a patient at plaintiff's facility. The plaintiff personally served the defendant with a summons and complaint on April 8, 2009, at the plaintiff's facility in connection with that action. A default judgment for failure to appear and answer was entered against the defendant on June 10, 2009, by a clerk for the Supreme Court of the State of New York, County of Monroe. The amount of judgment entered by the clerk as a result of the defendant's failure to appear in court was $243,947.41, plus costs and disbursements of $497.50, for a total judgment of $244,444.91.
The plaintiff also asserted two counts against a Susan Vickers for breach of fiduciary duty and accounts stated, but interestingly made no claims against Michael Timeus. Susan Vickers did not sign the admission agreement on behalf of the defendant, was not listed as the financial representative for the defendant under the agreement, nor was she the designated representative for the defendant under the agreement. In its papers in support of its motion for summary judgment, the plaintiff provided no evidence that Susan Vickers was personally served with the summons and complaint in the New York action.
On September 17, 2009, the plaintiff filed the subject Motion for Summary Judgment in Lieu of Complaint in this court pursuant to General Statutes § 52-607. The plaintiff represented to this court that the defendant had already been found liable to the plaintiff pursuant to a default judgment entered by the clerk for the Supreme Court of the State of New York, County of Monroe and requested that pursuant to General Statutes § 52-607, this court grant its motion and award damages in the amount of $244,444.91, plus postjudgment interest and costs.
Robert Hurlbut, a member of the plaintiff corporation, also swore under oath in his affidavit in support of the plaintiff's Motion for Summary Judgment that at the time the defendant entered Shore Winds and thereafter, he: (1) "agreed to pay in full, monthly in advance, for said care and services not covered by insurance"; (2) "accepted services under the terms of the agreement"; (3) "promised to pay the amounts stated in the monthly account invoices"; (4)"accepted that the charges stated in the monthly account invoices were correct." (Hurlbut Affidavit in Support of Plaintiff's Motion for Summary Judgment, ¶¶ 8, 15, 16 and 17.)
Upon further review of the papers submitted in support of the plaintiff's Motion for Summary Judgment, it was clear that: (1) neither the defendant, nor any member of his family, signed the admission papers for the plaintiff's facility; (2) neither the defendant, nor any member of his family, ever signed any papers agreeing to be responsible for the debts incurred by the defendant at the plaintiff's facility; and (3) in its papers the plaintiff did not describe, disclose nor even mention the physical and/or mental condition of the defendant at the time he was admitted to Shore Winds, at the time he was served with process in the New York action, or at the time he was served with process in this action.
Oral argument was held on this Motion for Summary Judgment on October 13, 2009. The plaintiff did not dispute that neither the defendant, nor any of his family members, signed his admission papers to the plaintiff's facility. Due to the defendant's failure to sign his admission papers to the plaintiff's facility, this court asked the plaintiff's counsel what the defendant's physical and mental condition was, not only at the time he was admitted to Shore Winds, but also at the time he was served with process in the New York action and at the time he was served with the present Motion for Summary Judgment. The court specifically asked counsel if the defendant had dementia or Alzheimer's disease. (Court Transcript, October 13, 2009, p. 7.) Counsel advised this court that he did not know the defendant's prognosis, but that his client had advised him that the defendant was " competent." (Emphasis added.) (Court Transcript, October 13, 2009, pp. 6-7.)
This court then made inquiry of the plaintiff's counsel as to the type of facility the plaintiff's facility was and was advised by counsel that it was a "health care facility." (Court Transcript, October 13, 2009, pp. 6-7.) Upon further inquiry from the court, plaintiff's counsel disclosed that the plaintiff's facility was a "long term care facility . . . [t]hey provide medical services to people that are not expected to leave the facility." (Emphasis added.) (Court Transcript, October 13, 2009, p. 13.) This court then specifically asked the plaintiff's counsel "was any information provided to the New York court as to the medical condition" of the defendant. Id. The plaintiff's counsel advised the court that he did not know that information. (Court Transcript, October 13, 2009, pp. 13-14.) The court expressed its concern that the defendant may have Alzheimer's or dementia. Id.
At the conclusion of the hearing, the plaintiff's counsel asked for, and was granted, the opportunity to provide information relating to the court's inquiries. This court specifically told counsel that due to its concerns it wanted someone to come back to court to testify under oath as to what the defendant's mental and physical state was when he was admitted to the plaintiff's facility, and what his mental and physical state was when he got served with process. (Court Transcript, October 13, 2009, p. 15.) Counsel requested permission to submit affidavits to address the court's concerns. That request was denied. (Court Transcript, October 13, 2009, p. 16.)
The court also inquired at the October 13, 2009, hearing as to the methodology of service of process on defendant with respect to the pending action in Connecticut. The plaintiff's counsel advised the court that service was accomplished by abode service by leaving the papers at the defendant's Redding, Connecticut property and by sending such papers by certified mail to the defendant at the plaintiff's nursing home. The plaintiff's counsel admitted that the defendant had not resided for the last five years at the Redding, Connecticut residence where the abode service occurred. (Court Transcript, October 13, 2009, p. 6.) Plaintiff's counsel's rationale for doing an abode service in Connecticut, where the defendant clearly had not resided for the last five years, was "we just wanted to cover all grounds." (Court Transcript, October 13, 2009, p. 7.) Counsel further admitted that although the defendant was served the Summons and Motion for Summary Judgment in Lieu of Complaint at the plaintiff's nursing home facility by certified mail, the defendant did not sign for the certified mail and a person named Marianne Whitehair did so. (Court Transcript, October 13, 2009, p. 8.) Plaintiff's counsel claimed to have no knowledge as to who Ms. Whitehair was. Id.
Upon review of the marshal's return of service in this action, it is also clear that the plaintiff served the Secretary of State as an agent for the non-resident defendant.
The matter was continued to November 9, 2009, for the specific purpose of hearing live testimony on these issues. On November 6, 2009, the plaintiff filed a supplemental memorandum of law in support of its Motion for Summary Judgment. Attached to that supplemental memorandum were three affidavits. On November 9, 2009, the plaintiff's counsel appeared in court without any witnesses to testify as to the physical and/or mental condition of defendant and instead directed the court's attention to the affidavits attached to plaintiff's supplemental memorandum of law in support of its Motion for Summary Judgment. None of these affidavits addressed the issues raised by the court as to the physical and mental condition of the defendant at the time he was admitted to the plaintiff's facility, his condition at the time he was served with process in the New York action and his current medical condition. The plaintiff's counsel also admitted that he had no information relating to what the physical and mental condition of the defendant was at any of those times.
The affidavits provided to the court were from the following individuals: Marianne Whitehair, Elyse Strom, and Richard Zicari. All of the affidavits related to the service of process on the defendant in the pending action. Marianne Whitehair's affidavit, dated October 23, 2009, stated that she was an employee of Shore Winds and that on September 23, 2009, she signed a certified mail receipt for the defendant from the Connecticut state marshal. (Whitehair Affidavit, ¶¶ 2, 6.) She stated in her affidavit she left the package for the defendant's social worker, Elsye Strom, in her mailbox at Shore Winds. (Whitehair Affidavit ¶ 8.)
In the October 23, 2009, affidavit submitted by Elyse Strom, she stated that she was an employee of the plaintiff and was the defendant's social worker. (Strom Affidavit ¶¶ 2, 6.) She stated that on September 23, 2009, she took the package from her mailbox, found the defendant in the dining area, brought the package to the defendant and "asked him if he wanted me to leave the package in his room . . . [the defendant] responded that he wanted me to give him the package at that time which I did." (Strom Affidavit ¶¶ 7-10.) The affidavit continues that one month later on October 22, 2009, Ms. Strom "asked [the defendant] if he remembered when I gave him the package . . . [the defendant] responded that he did remember when I gave him the package and said that he gave the package to his son, John." (Strom Affidavit ¶¶ 11, 12.) There is no mention in Ms. Strom's affidavit that she ever described to the defendant what was in the package and/or that it was legal papers that needed his attention.
As the court will address later in its Memorandum of Decision, Ms. Strom's reference in her affidavit that the defendant answered her questions in sentence format is inconsistent with testimony subsequently provided on November 16, 2009, that the defendant was only able to speak one-or two-word answers in response to questions asked. This certainly throws the credibility of Ms. Strom's affidavit into question.
The third affidavit submitted by plaintiff in support of its Motion for Summary Judgment was an affidavit of service from a constable Richard Zicari. This constable allegedly served the defendant on April 8, 2009, with the summons and complaint from the original New York matter as well as the September 2009, summons and Motion for Summary Judgment that was filed in this action. (Exhibit G Zicari Affidavit to Plaintiff's Supplemental Memorandum of Law In Support of Motion for Summary Judgment.) According to his affidavit of service, constable Zicari personally served the defendant with the papers from this proceeding on October 23, 2009, after the first hearing in this matter and five weeks after the motion was filed with the court.
The court reviewed constable Zicari's affidavit of service for the New York action and his affidavit of service for this action. The discrepancies in the two affidavits of service, sworn to within six months of each other, are disturbing. In his April 8, 2009, affidavit of service, constable Zicari swears under oath that he served the defendant at 425 Beach Avenue, Rochester, New York (the address of the plaintiff's facility) and the description of the person served was "Age: 80, Sex: M, Race/Skin Color: White, Height 5' 10," Weight: 185, Hair: White, Glasses: N." (Emphasis added.) On October 23, 2009, six months later, the very same constable swore under oath in his affidavit of service that he hand-delivered to the defendant the present summons and Motion for Summary Judgment in Lieu of Complaint, at 425 Beach Avenue, Rochester, New York (the Shore Winds address) and the description of the person served was "Age: 85, Sex: M, Race/Skin Color: White, Height 5' 9," Weight: 150, Hair: Gray, Blacd [sic], Glasses: N." (Emphasis added.) While the defendant's weight difference could possibly be explained away due to illness, clearly there is no explanation for the defendant to have gained five years in age from April 2009 to October 2009.
As a result of the plaintiff's failure to produce any information, as requested by the court, as to the defendant's mental and physical condition at the November 9, 2009, hearing, this matter was continued to November 16, 2009, for that purpose. This court advised the plaintiff's counsel it wanted the physician who treated the defendant at the time of his admission to Shore Winds and at the time he was served with process in the New York action to be present in court to give testimony as to these issues. On November 16, 2009, a third hearing was conducted on this motion. The plaintiff's counsel advised the court at the commencement of the hearing that the physician who had treated the defendant had refused to come to court to give testimony. Instead, the plaintiff brought John Zehr, an administrator of the plaintiff, to give testimony on these issues.
It should be noted that in the supplemental Memorandum in Support of Plaintiff's Motion for Summary Judgment, the plaintiff, while submitting multiple affidavits, submitted no affidavits from the defendant's treating physicians nor any other person at Shore Winds testifying as to the defendant's physical and mental condition.
Mr. Zehr testified under oath that he was not employed by Shore Winds at the time that the defendant was admitted to the plaintiff's facility in 2004. Mr. Zehr testified that the defendant "has some confusion. He was admitted with a mild case of dementia. He follows directions. He can eat by himself." (Court Transcript, November 16, 2009, pp. 6-7.) He did not know what medications the defendant was on and stated that the defendant shared a room with another patient. (Court Transcript, November 16, 2009, p. 7.) He later testified that the defendant had been admitted with "Parkinson's, with a mild case of dementia." Id. Mr. Zehr testified that he did not know how old the defendant was and testified that the defendant would " give one or two word answers" and " that he just doesn't do a sentence." (Emphasis added.) (Court Transcript, November 16, 2009, p. 8.)
Notwithstanding his prior testimony, Zehr then testified that he was aware of at least one occasion that the defendant did speak a sentence — that occasion was when he was served with the package containing the summons and Motion for Summary Judgment relating to this case. (Court Transcript, November 16, 2009, p. 8.) Zehr testified, however, that he was not present when the defendant was allegedly able to speak this sentence, but that he was aware that it had occurred. Id. Zehr further testified that he was present when the defendant was served with the New York action because "if any resident is served, I'm protective in representing that resident." Id. Zehr finally testified that the defendant currently is a small frail gentlemen that weighs about 110 lbs, with grey hair and bald top and that the description he gave was what Mr. Timeus looked like when he was served in April 2009 with the New York summons and complaint. (Emphasis added.) (Court Transcript, November 16, 2009, p. 9.)
Since Zehr testified under oath that Mr. Timeus was 110 lbs. in April 2009 when he was served with the New York action, the following question certainly arises — who was the 185 lb. man constable Zicari served the New York action summons and complaint to on April 8, 2009?
Zehr finally testified that the defendant's "dementia has progressed" since his admission in 2004 and in response to the court's inquiry as to what that meant stated that referred to the defendant's "confusion" and testified that "dementia is a progressive disease." (Court Transcript, November 16, 2009, pp. 9-10.)
It is an infringement on court resources and time to have held three hearings on this issue. Based on the facts finally given to the court relating to the defendant's physical and mental condition at the time he was admitted to the plaintiff's facility and thereafter, it is clear that a number of the representations sworn to under oath by Mr. Hurlbut, a member of the plaintiff, in his September 14, 2009, Affidavit in Support of Plaintiff's Motion for Summary Judgment, have no basis in fact. Those representations are that the defendant: (1) "agreed to pay in full, monthly in advance, for said care and services not covered by insurance"; (2) "accepted services under the terms of the Agreement"; (3) "promised to pay the amounts stated in the monthly account invoices"; and (4) "accepted that the charges stated in the monthly account invoices were correct." (Hurlbut Affidavit, ¶¶ 8, 15, 16 and 17.)
When making these sworn representations in support of its petition for $244,444.91, the plaintiff utterly failed to disclose to this court that the person who allegedly made these promises and accepted these terms, if he ever made any promises and/or accepted any terms, had Parkinson's disease, progressively worsening dementia and was unable to speak sentences in response to questions. This court has reviewed the verified complaint and motion for default filed in the New York action and it is clear that the plaintiff also failed to advise the Supreme Court of the State of New York, County of Monroe of the defendant's physical and mental condition.
II DISCUSSION A. Full Faith Credit Clause
Where a party seeks to enforce a judgment that was based on a default in appearance, the party must proceed pursuant to General Statutes § 52-607. The validity of plaintiff's New York default judgment in Connecticut implicates the full faith and credit clause of the constitution of the United States, article four, § 1. See Packer Plastics, Inc. v. Laundon, 214 Conn. 52, 55, 570 A.2d 687 (1990). "The full faith and credit clause of the United States constitution provides in relevant part that 'Full Faith and Credit shall be given in each State to the . . . judicial proceedings of every other State . . . 'U.S. Const., art. IV, § 1. Because the interpretation of the full faith and credit clause is a question of federal law, state courts must look to decisions of the United States Supreme Court for guidance in its application." Business Alliance Capital Corp. v. Fuselier, 88 Conn.App. 731, 736, 871 A.2d 1051 (2005), citing Thomas v. Washington Gas Light Co., 448 U.S. 261, 271, n. 15, 100 S.Ct. 2647,65 L.Ed.2d 757 (1980).
The full faith and credit clause was adopted "to alter the status of the states as independent foreign sovereignties, each free to ignore obligations created under the laws or by the judicial proceedings of the others, and to make them integral parts of a single nation throughout which a remedy upon a just obligation might be demanded as of right irrespective of its origin." (Internal quotation marks omitted.) Baker v. General Motors Corp., 522 U.S. 222, 232, 118 S.Ct. 657, 139 L.Ed.2d 580 (1998).
"As a general principle, the full faith and credit clause of the United States constitution permits a creditor who has obtained a judgment in one state to enforce that judgment in this state. This principle is inapplicable, however, if the foreign judgment is a default judgment rendered by a court that did not have personal jurisdiction over the judgment debtor." Business Alliance Capital Corp. v. Fuselier, supra, 88 Conn.App. 732-33; see also J. Corda Construction, Inc. v. Zaleski Corp., 98 Conn.App. 518, 911 A.2d 309 (2006). "[A] debtor who seeks to challenge the validity of a foreign judgment that has been registered properly in this state may do so only by raising constitutionally permissible defenses . . . that destroy the full, faith and credit obligation owed to a foreign judgment . . . Such defenses include lack of personal jurisdiction or lack of due process." (Citation omitted; internal quotation marks omitted.) Business Alliance Capital Corp. v. Fuselier, supra, 88 Conn.App. 736-37, citing Nastro v. D'Onofrio, 76 Conn.App. 814, 823, 822 A.2d 286 (2003). The United States Supreme Court in Mullane v. Central Hanover Bank Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950), has stated the following: "An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of pendency of the action and afford them an opportunity to present their objections."
"To determine whether a foreign court lacked jurisdiction, we look to the law of the foreign state . . ." Business Alliance Capital Corp. v. Fuselier, supra, 88 Conn.App. 737, citing Smith v. Smith, 174 Conn. 434, 438, 389 A.2d 756 (1978). New York case law is the appropriate case law for this court to review as plaintiff is looking to enforce a New York state default judgment. Under New York case law, it is clear that a party's attorney " has a duty to inform the Court that the respondent may be incapable of defending the case due to mental incapacity . . . Failure to do so will result in a default judgment being set aside." (Citations omitted; emphasis in original.) Parras v. Ricciardi, 185 Misc.2d 209, 213, 710 N.Y.S.2d 792 (2000).
In Parras, the defendant was a ninety-year-old man, mentally incompetent and residing in a nursing home. The plaintiff served the defendant with process at his apartment by "nail and mail" service, even though the defendant was residing in the nursing home full-time. A default judgment was entered against the defendant for failure to appear and answer. The court held that "as the landlord knew that the respondent is mentally incompetent, even service at the nursing home would not be sufficient to obtain a judgment on the respondent's default. A default judgment entered against a party incapable of protecting her interests is invalid and unenforceable unless a guardian ad litem is appointed for such person." Parras v. Ricciardi, supra, 185 Misc.2d 213; see also Soybel v. Gruber, 132 Misc.2d 343, 504 N.Y.S.2d 354 (1987) (court found it had a duty to protect a litigant who is incapable of protecting her own interests and appointed a guardian ad litem with respect to an eighty-four-year-old woman who was confined in a geriatric center). In Parras, the court further held "[i]t is the petitioner's obligation to bring the respondent's possible mental capacity to the Court's attention, to permit the court to determine whether a guardian ad litem should be appointed to protect such respondent's interests. Failure to do so will result in a default judgment that will be set aside, even after, for example, a foreclosure and subsequent sale to a third party. Thus, the petitioner's attorney not only has a moral obligation to inform the Court, he has a legal obligation." Parras v. Ricciardi, supra, 185 Misc.2d 213, citing Oneida National Bank Trust Co. of Central New York v. Unczur, 37 App.Div.2d 480, 326 N.Y.S.2d 458 (1971) (hereinafter " Oneida National Bank Trust Co."); see also, New York Civil Practice Law and Rules § 1203.
In Oneida, the defendant was admitted to a hospital for the mentally ill and was served the summons and complaint in the hospital. The plaintiff bank knew the defendant was served in a mental hospital and defendant was defaulted for failing to appear or answer. The court found that "[i]n the interest of justice, undoubtedly the court has inherent power to open its judgments." Oneida National Bank Trust Co. v. Unczur, supra, 37 App.Div.2d 483. New York Civil Practice Law and Rules §§ 1203 and 1201 "are to be read together and interpreted as requiring the appointment of a guardian ad litem in every case where the defendant is an adult incapable of protecting his rights, before a default judgment may be entered against him . . . This places the burden upon the plaintiff who has notice that a defendant in his action is under mental disability, to bring that fact to the court's attention and permit the court to determine whether a guardian ad litem should be appointed to protect such defendant's interests." (Citations omitted; emphasis added.) Id., 483-84. In Oneida, the default judgment was vacated for plaintiff's failure to advise the court of defendant's mental incapacity.
In Barone v. Cox, 51 App.Div.2d 115, 379 N.Y.S.2d 881 (1976), the defendant in that action was committed to a home for the aged and infirm where she remained until her death. Similar to the facts in the present case, the defendant's mind was deteriorating and she was senile and disoriented to such an extent that she needed care twenty-four hours per day. The defendant was served with a summons and complaint and a default judgment was entered. The Appellate Division of the Supreme Court of the State of New York found "the record presented a strong prima facie showing not only that defendant was incapable of protecting her interests at the time when the action was begun and default judgment was entered, but that the plaintiff knew or had reason to know thereof." Barone v. Cox, supra, 51 App.Div.2d 118. This court also found that "[w]hen a creditor becomes aware that his alleged debtor is or apparently is incapable of protecting his own legal interests it is incumbent upon him to advise the court thereof so that the court may make suitable inquiry and in its discretion . . . appoint a guardian ad litem to protect the defendant's interests." (Citations omitted.) Id., 118. In addition, the court found that "[i]ncompetent persons become the wards of the court, upon which a duty devolves of protection both as to their persons and property. This duty is not limited to cases only in which a committee has been appointed, but it extends to all cases where the fact of incompetency exists." (Internal quotation marks omitted.) Id., quoting Wurster v. Armfield, 175 N.Y. 256, 262, 67 N.E. 254 (1903); see also Prude v. County of Erie, 47 App.Div.2d 111, 113, 364 N.Y.S.2d 643 (1975). Finally, the court found that "[t]here is a duty on the courts to protect such litigants." (Internal quotation marks omitted.) Barone v. Cox, supra, 51 App.Div.2d 118, quoting Sengstack v. Sengstack, 4 N.Y.2d 502, 509, 176 N.Y.S.2d 337, 151 N.E.2d 887 (1958).
In State v. Getelman, N.Y.L.J., September 7, 1993, p. 25, col. 6 (Sup.Ct., Albany County), the defendant moved to appoint a guardian ad litem for the purpose of vacating a default judgment which plaintiff had entered against him, on the grounds that defendant was a person incapable of adequately defending his rights and plaintiff failed to notify the court of this fact, thereby depriving the court of jurisdiction. Plaintiff caused defendant, a sixty-six-year-old potentially incompetent man, to be served with a summons and statement of services at the adult home in which he was residing. Defendant defaulted and judgment was entered against him. The court found that while service may have been permissible, entry of judgment was not. State v. Getelman, supra, N.Y.L.J., p. 26, col. 1. The court stated the following:
"[f]irst, plaintiff should not have made application for default judgment in this matter to the clerk. Plaintiff should have made application to this Court inasmuch as it is the 'Assigned Judge' Second, the court finds that under the circumstances here, the plaintiff had notice that the defendant was under a mental disability, and even though plaintiff determined it lacked sufficient proof upon which to make an appointment of a guardian ad litem, plaintiff was nevertheless obligated to bring this fact to the court's attention so that it could make a suitable inquiry . . . as to whether a guardian ad litem was necessary to protect the defendant's rights." Id., citing Barone v. Cox, supra, 51 App.Div.2d 115, Oneida National Bank Trust Co. v. Unczur, supra, 37 App.Div.2d 480.
In State v. Kama, 267 App.Div.2d 224, 699 N.Y.S.2d 473 (1999), the plaintiff commenced an action to recover the costs of medical services provided to the defendant in 1995 and 1996 at the University Hospital in Stony Brook, New York. A judgment was entered upon the defendant's failure to appear and answer. One year later the defendant moved to vacate the judgment in the interests of justice, alleging she had a reasonable excuse for the default and a meritorious defense. The Supreme Court of the State of New York denied her motion. On appeal, the Appellate Division of the Supreme Court of the State of New York reversed and found the defendant received treatment at the facility for a bipolar affective disorder, establishing a reasonable excuse for the default. The Appellate Division also found "the judgment must be vacated in the interest of justice as no inquiry was held before its entry as to the need for an appointment of a guardian ad litem . . ." (Citations omitted.) State v. Kama, supra, 267 App.Div.2d 225; see also New York Civil Practice Law and Rules §§ 1201, 1203.
Connecticut case law also supports the position that service of process should not be made on an individual who the plaintiff knows may be mentally incapacitated and incapable of defending himself. In Sunbridge Healthcare Corp. v. Hajdasz, Superior Court, judicial district of Hartford, Docket No. CV 00 0595565, (June 9, 2000, Berger J.) [ 27 Conn. L. Rptr. 340], the court found that a plaintiff nursing home's knowing service of process on a mentally incapacitated patient in its care, was a "mockery of the notion of sufficient service of process." In Sunbridge, the plaintiff argued that it should not have the burden to determine the competence of defendants before it makes service of process. The Superior Court, while agreeing with that general proposition, found that the presumption of competence cannot stand under the factual situation where a plaintiff nursing care facility serves process on a defendant with a chronic organic brain syndrome while the defendant is in the plaintiff's nursing care facility and the plaintiff surely had full knowledge of the defendant's incompetency. The Superior Court found "an elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated . . . to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections . . . Mr. Hajdasz in his current state, was totally incapable of being fully apprised of the pendency of the action." Sunbridge Healthcare Corp. v. Hajdasz, supra, Superior Court, Docket No. CV 00 0595565.
The plaintiff had an obligation under New York case law to bring the defendant's potential mental incapacity to the court's attention so that it could make suitable inquiry as to whether a guardian ad litem should be appointed to protect the defendant's rights. It failed to do so. The plaintiff's conduct is especially egregious because it was the nursing home that was defendant's care giver for the last five years. It not only knew that the defendant had Parkinson's and dementia that was worsening, but it knew that the defendant could not adequately defend and protect his rights. It also knew that serving a summons and complaint on the defendant, if in fact the defendant was the person served with the process, was useless because of the defendant's limited mental capacity.
B. Summary Judgment
"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 of 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). "The facts at issue [in a motion for summary judgment] are those alleged in the pleadings." (Internal quotation marks omitted.) McKinney v. Chapman, 103 Conn.App. 446, 450, 929 A.2d 355, cert. denied, 284 Conn. 928, 934 A.2d 243 (2007).
"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).
No disclosure of the defendant's dementia was made to the Supreme Court of the State of New York, County of Monroe so that a hearing could be conducted to determine whether a guardian ad litem should be appointed for the defendant. Under New York law, the plaintiff had a moral and legal obligation to disclose this fact to the court and failed on both accounts. Because of plaintiff's failure to do so in the New York proceeding, there is a material question of fact as to whether the default judgment obtained in that action against the defendant is valid.
Moreover, it is clear that the plaintiff's April 8, 2009, service of process on the defendant, who it knew had worsening dementia, in the New York action was a mockery of the notion of sufficient service of process and, unfortunately, the same conduct continued into the fall of 2009 with service of process in this action. There is also a significant question of fact as to who exactly was served with the summons and complaint in the New York action and in this action. The defendant who is described in the affidavits of service for the service of the April 2009 summons and complaint in the New York action and the October 2009 service of the Motion for Summary Judgment are not only significantly inconsistent with each other, but the physical weight description provided in either affidavit of service does not even come close to the 110 lbs. description of the defendant that was provided under oath in this court.
Defenses that destroy full faith and credit obligation owed to a foreign judgment include lack of personal jurisdiction and lack of due process. Nastro v. D'Onofrio, supra, 76 Conn.App. 823; see also Business Alliance Capital Corp. v. Fuselier, supra, 88 Conn.App. 737. In viewing the evidence in the light most favorable to the nonmoving party, this court finds there are genuine issues of material fact not only as to service and due process, but as to the validity of the New York default judgment. Accordingly, summary judgment is denied.
III CONCLUSION
Plaintiff should have disclosed to this court at the outset of this case that the defendant may have a mental incapacity that could affect his ability to defend this action. A hearing could have been conducted to determine whether a guardian ad litem needed to be appointed to represent the defendant's interests. It failed to do so and had it not been for this court's persistent inquiry as to the actual mental and physical condition of the defendant, this court is convinced that this information never would have been disclosed by the plaintiff. Based on the testimony provided by the plaintiff's administrator on November 16, 2009, regarding the defendant's mental and physical condition, it is clear to this court that the defendant is not capable of adequately defending his interests and that a guardian ad litem must be appointed for the defendant for any further proceedings in this case.