Porter v. Thomas

Full title: TRACEY L. PORTER v. CHRISTOPHER THOMAS, ET AL

Court: Connecticut Superior Court, Judicial District of Waterbury

Date published: May 6, 1998

1998 Ct. Sup. 5616 (Conn. Super. Ct. 1998)

22 CLR 141

Opinion

No. CV97-0137116S

May 6, 1998

MEMORANDUM RE: MOTION FOR SUMMARY JUDGMENT

GILL, J.

The plaintiff's original service was made within the applicable statute of limitations. The original return date, however, was improper. Pursuant to General Statutes § 52-72, the plaintiff was permitted to amend the return date. The amended return date and re-service, however, were beyond the applicable statute of limitations.

This exact issue was addressed by Judge Austin in Danziger v. Shakaitis, Superior Court, judicial district of Middlesex, Docket No. 061768 (June 23, 1992) ( 7 CSCR 865);¹ and Judge Arena in Danziger v. Shakaitis, Superior Court, judicial district of Middlesex, Docket No. 061678 (January 22, 1992), aff'd. on other grounds 33 Conn. App. 6, 632 A.2d 1130 (1993), rev'd on other grounds 228 Conn. 914, 636 A.2d 846 (1993).²

1 Judge Austin presided over the defendant's, Shakaitis, motion for summary judgment against plaintiff Danziger.

2 Judge Arena presided over the defendant's motion for summary judgment against plaintiff Johnson.

Judge Austin held that § 52-72 (b) should be interpreted such that "service of the amended writ is deemed to have been made when the service of the original process was made." Judge Austin reasoned that a contrary ruling would defeat the remedial purpose of § 52-72. Accordingly, Judge Austin held that plaintiff Danziger's action was commenced within the proper statute of limitations period.

Judge Arena, however, made the opposite ruling in the same case. Judge Arena granted the defendant's motion for summary judgment against plaintiff Johnson because Judge Arena determined that the amended date of service was the proper date to determine whether an action was brought within the statute of limitations.

This court adopts the reasoning of Judge Austin. The Supreme Court has held that § 52-72 is remedial in nature. "As a remedial statute, § 52-72 must be liberally construed in favor of those whom the legislature intended to benefit. . . Statutes such as 52-72 were intended to take the sharp edges off the common law . . ." Concept Associates, LTD. v. Board of Tax Review, 229 Conn. 618, 623, 642 A.2d 1186 (1994).

Therefore, the defendant's motion for summary judgment is accordingly denied.

GILL, J.