Opinion
No. CV-03-0521291 S
June 25, 2004
RULING ON MOTIONS FOR SUMMARY JUDGMENT
This is the plaintiff, Maria Saczawa, Administratrix of the Estate of Kazimierz Szablowski's, second action against the defendants, Grace Korba and Zbigniew Korba. Kazimierz Szablowski originally brought the first action against the defendants, through a writ, summons and complaint dated February 7, 2001 and made returnable to the court on March 13, 2001. The case was captioned Kazimierz Szablowski v. Grace Korba et al. and assigned Docket Number CV 01 0506939. Both defendants have now moved for summary judgment.
Kazimierz Szablowski passed away on August 5, 2001. The plaintiff in the present action, Maria Saczawa, was appointed administratrix of his estate on October 2, 2001.
The plaintiff alleges in the complaint that on February 13, 1999, the plaintiff was visiting the defendants at their residence when Zbigniew Korba struck the plaintiff. The four-count complaint alleges that Zbigniew Korba engaged in negligence, recklessness and assault in violation of General Statutes § 53a-59 and Grace Korba engaged in negligent behavior.
Each defendant has retained separate counsel and has individually defended both actions.
The following is the procedural history underlying the first action. On March 20, 2002, Zbigniew Korba filed a motion for nonsuit against the plaintiff for failure to respond to certain requests for disclosure and production. On April 15, 2002, the court, Wiese, J., ordered that the plaintiff comply with discovery requests by May 3, 2002. On May 14, 2002, Zbigniew Korba filed a second motion for nonsuit for failure to comply with the court order entered by Judge Wiese on April 15, 2002. On June 4, 2002, the court, Shortall, J., granted the motion and entered a judgment of nonsuit against the plaintiff. The court, Shortall, J., then granted Grace Korba's motion for nonsuit on July 22, 2002. On August 26, 2002, the plaintiff filed a motion to open the judgment of nonsuit. On September 10, 2002, the court, Bryant, J., denied the plaintiff's motion to open the judgment of nonsuit and denied the plaintiff's objection to Grace Korba's motion for nonsuit.
The plaintiff brought the instant action on the same set of facts and legal claims by writ, summons and complaint dated April 14, 2003 and returnable on May 27, 2003. On October 14, 2003, the plaintiff filed an amended complaint bringing the instant action under General Statutes § 52-592, the accidental failure of suit statute. On November 28, 2003, Grace Korba filed a motion for summary judgment claiming that the instant action is barred by the statute of limitations under General Statutes §§ 52-584 and 52-577 and that § 52-592 cannot be used to save the action. On December 16, 2003, Zbigniew Korba also filed a motion for summary judgment on the same grounds.
It was Zbigniew Korba's motion for summary judgment that was heard at the short calendar on April 19, 2003. Counsel for both defendants were present and represented to the court that they intended both motions to appear on the short calendar at the same time and that the issues in both motions were the same.
On January 21, 2004, the plaintiff filed a memorandum in opposition asserting that there is a material issue of fact and law as to whether the present action can be maintained under § 52-592(a). The plaintiff submitted a verified statement of the plaintiff's former attorney, Edward A. Jazlowiecki, Esq., dated January 14, 2002 to support his motion.
"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." (Citation omitted; internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000). "[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." (Citation omitted; emphasis in original; internal quotation marks omitted.) Miller v. United Technologies Corp., 233 Conn. 732, 752, 660 A.2d 810 (1995). The court may consider not only the facts presented by the parties' affidavits and exhibits, but also the "inferences which could be reasonably and logically drawn from them . . ." United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 381, 260 A.2d 596 (1969).
"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 judguient 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).
Zbigniew Korba has moved for summary judgment claiming that there is no material issue of fact or law as to whether the action may be maintained under § 52-592. He asserts that the judgment of nonsuit granted by the court, Shortall, J., in the prior action was granted because of the plaintiff's failure to comply with the defendant's discovery requests and because of the plaintiff's failure to comply with the prior court order. He argues that there was nothing to prevent the plaintiff from acting with diligence and providing the defendant with discovery. Zbigniew Korba further argues that by filing the motion to reopen the judgment of nonsuit which was denied by the court, Bryant, J., the plaintiff has already taken "one-bite-of-the-apple" and allowing the plaintiff to proceed under the accidental failure of suit statute would effectively allow an "end run" around Judge Bryant's decision. Further, in his reply to the plaintiff's memorandum in opposition, Zbigniew Korba argues that in the four-month period from March 20, 2002 (the date of the defendant's motion for nonsuit) through July 22, 2002, (the date of the judgment of nonsuit) the plaintiff's attorney did nothing to obtain the missing medical records and did nothing to comply with the court's orders. The defendant argues that this constituted egregious conduct because there was no obstacle to timely compliance in this case. Zbigniew Korba asserts that the death of the plaintiff on August 5, 2001 was not an obstacle to obtaining records because the administratrix was appointed on October 2, 2001 and judgment of nonsuit did not enter until July 22, 2002 giving the plaintiff-administratrix approximately ten months to comply with the discovery requests.
Grace Korba has also moved for summary judgment on the same grounds as Zbigniew Korba. Grace Korba asserts that she filed discovery requests on May 14, 2001 and that compliance still had not been made, when the court, Shortall, J., granted the judgment of nonsuit on July 22, 2002. The defendant points to the fact that on April 15, 2002, Judge Wiese ordered compliance on or before May 3, 2002 and that the plaintiff failed to comply with this order. The defendant asserts that the plaintiff has failed to state what mistake, inadvertence or excuse prevented him from obtaining and disclosing the discovery requests. She further asserts that when the plaintiff's attorney produced the file he could only show a few letters over a period of two years with follow-up requests for information. Further, she asserts that it is not true that Jazlowiecki ultimately provided discovery. The defendant argues that the non-compliance with a court ordering discovery is egregious.
The plaintiff asserts in her memorandum in opposition that although beyond the deadlines set by the court, prior counsel complied with defendants' discovery requests not once, but twice. The plaintiff asserts that the plaintiff's medical providers were simply not forthcoming with the plaintiff's medical records and the delay was due to a high turnover of attorneys and support staff during the pendency of the original action. Further, the plaintiff points to the plaintiff's death as creating additional obstacles to the plaintiff's timely compliance with discovery requests. The plaintiff further asserts that the plaintiff complied with the defendants' discovery requests three times: October 24, 2001, June 21, 2002 and July 11, 2002 as noted in the "case detail" of the Judicial Branch website, notice of compliance and supplemental compliance.
Section 52-592(a), the accidental failure of suit statute provides in relevant part: "If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form; or if, in any such action after a verdict for the plaintiff, the judgment has been set aside, or if a judgment of non-suit has been rendered or a judgment for the plaintiff reversed, the plaintiff, or, if the plaintiff is dead and the action by law survives, his executor or administrator, 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."
"Deemed a `saving statute,' § 52-592 enables plaintiffs to bring a new causes of action despite the expiration of the applicable statute of limitations . . . Although § 52-592 should be broadly construed because of its remedial nature, it should not be construed `so broadly as to hamper a trial court's ability to manage its docket by dismissing cases for appropriate transgressions.'" (Internal quotation marks omitted.) Stevenson v. Peerless Industries, Inc., 72 Conn.App. 601, 607, 806 A.2d 567 (2002).
"Section 52-592 by its plain language, is designed to prevent a miscarriage of justice if the [plaintiff] fail[s] to get a proper day in court due to the various enumerated procedural problems . . . Its purpose is to aid the diligent suitor." (Citations omitted; internal quotation marks omitted.) Henriquez v. Allegre, 68 Conn.App. 238, 243-44, 789 A.2d 1142 (2002). "Where . . . the hallmark of counsel's representation is a pattern of repeated delay, occasioning the utilization of judicial resources to enforce proper prosecution of cases brought before the court and necessitating several dismissals, our strong policy favoring a trial on the merits loses its applicability." Gillum v. Yale University, 62 Conn.App. 775, 787, 773 A.2d 986, cert. denied, 256 Conn. 929, 776 A.2d 1146 (2001).
"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." (Citation omitted). Ruddock v. Burrowes, 243 Conn. 569, 576, 706 A.2d 967 (1998). "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." Id., 576-77. "A determination of the applicability of § 52-592 depends on the particular nature of the conduct involved." Stevenson v. Peerless Industries, Inc., supra, 72 Conn.App. 607.
In Stevenson, the trial court granted the defendant's motion to dismiss and the appellate court reversed, holding that the plaintiff was entitled to avail himself of the accidental failure of suit statute. Stevenson v. Peerless Industries, Inc., supra, 72 Conn.App. 606. In that case, the plaintiff filed the original action against defendants, Barr, Inc., (Barr) and Peerless Industries, Inc., and Peerless Sales Company (Peerless) in 1998. Id., 602-03. In November 1998, Peerless then filed a request to revise the complaint. Id., 603. The plaintiff failed to respond to it. Id. In December 1998, Peerless sent discovery requests to the plaintiff, which the plaintiff failed to answer. Id. Peerless subsequently filed a motion for a judgment of non-suit for failure to comply with the discovery requests, which the court granted July 8, 1999. Id. The plaintiff did not respond to the motion for nonsuit and did not attempt to open the judgment. Id. Barr also pursued a similar action and obtained a judgment for nonsuit. Id., 603-04. The plaintiff brought a second action on the same claims on July 6, 2000 invoking § 52-592. Id., 604. The defendant, Peerless, filed a motion to dismiss arguing that the plaintiff's failure to prosecute the case diligently was not due to mere mistake, inadvertence or excusable neglect. Id. In opposition to the motion to dismiss, the plaintiff contended that he had failed to respond to discovery requests because of miscommunication with one of his attorneys, who practiced in Pennsylvania. Id. He also gave other explanations for various mistakes that had been made, for example that counsel's secretary failed to prepare a motion to open the judgment as instructed. Id., 605.
The court held that the plaintiff's actions constituted excusable neglect and did not rise to the level of egregious conduct. Id., 607. The court stated, "This is not a situation beset by years of unnecessary litigation and `cumulative transgressions.' . . . Rather, as the plaintiff explained, after filing his action in 1998, he failed to respond timely to the request to revise and to discovery demands, due, in part, to miscommunication with counsel in Pennsylvania." (Citation omitted.) Id., 607-08. The court further explained that the facts presented in Stevenson were very different from the set of facts present in previous cases where egregious conduct had been found. Id., 608. For example, in Skibeck v. Avon, 24 Conn.App. 239, 587 A.2d 166, cert. denied, 219 Conn. 912, 593 A.2d 138 (1991), the Appellate Court affirmed the trial court's decision to grant summary judgment in an action that had been filed pursuant to § 52-592. In that case, the trial court dismissed the case three times for failure to appear and failure to prosecute over the course of many years of litigation. Id., 240-41. The court stated, "[t]o allow this action to continue at this time would defeat the basic purpose of the public policy that is inherent in statutes of limitation, i.e., to promote finality in the litigation process." Id., 243.
The actions of plaintiff's former counsel do not amount to egregious conduct so as to prevent the plaintiff from availing himself of the provisions of § 52-592. Like Stevenson, a judgment for nonsuit entered in the present action because of a failure to comply with discovery requests. The plaintiff has provided the court with the verified statement of the plaintiff's attorney in the first action dated January 14, 2004. In his statement, the attorney avers that the plaintiff failed to comply with discovery requests due to mistake or accident. (Verified Statement of Edward A. Jazlowiecki, Esq., ¶ 5). Jazlowiecki further avers that, "[o]ver a period of two years, [his] office made several requests to the [healthcare] providers, both written and by telephone in an attempt to secure the discovery material. Upon receipt of said documentation, they were provided to defense counsel." Id., ¶ 7. He avers that during the prior action, his office experienced managerial difficulties involving a high turn-over of attorneys and support staff making it difficult to properly follow up the medical documentation and other matters concerning the file. Id., ¶ 8. Jazlowiecki also points to the plaintiff, Kazimierz Szablowski's death and the appointment of an administratrix as creating additional delays. Id., ¶ 9. Further, unlike Stevenson, the plaintiff in this case did not allow the judgment of nonsuit to enter unopposed and sought to re-open the judgment of nonsuit. Taking the facts in the light most favorable to the plaintiff, the plaintiff has set forth enough for the court to conclude that the lack of compliance with discovery requests was due to mistake, inadvertence or excusable neglect. Furthermore, although the facts underlying this action occurred five years ago, this case has not seen years of "unnecessary litigation" and "cumulative transgressions" as in cases such as Skibeck. The conduct in this case does not seem to arise to the level of egregious conduct as occurred in Skibeck where the court dismissed the case three times.
In Biro v. Sidley Austin, Superior Court, judicial district of Stamford, Docket No. CV 95 0149415 (October 1, 1996, Tobin, J.) ( 17 Conn. L. Rptr. 629), the court stated, "a failure to comply with three deadlines for requests for disclosure [was] not necessarily egregious and dilatory conduct." The court allowed the action, brought pursuant to § 52-592, to go forward despite the fact that the case arose from events that occurred almost 14 years prior in the Middle East and that litigation had been pending for almost eight years with three suits going to the Connecticut Supreme Court twice. Id. The court held that much of the delays had been within the purview of the law. Id. Allowing the case presently before the court to go forward is appropriate because the hardship imposed on the defendant is not so extreme as to undermine public policy. The events underlying the action occurred here in Connecticut and the litigation has only been pending for three and half years.
The Superior Court addressed the issue of egregious conduct in Boland v. Perez, Superior Court, judicial district of Fairfield, Docket No. CV 02 0394427 (September 5, 2003, Levin, J.). In Boland, the plaintiff brought a second action pursuant to § 52-592 and the defendant moved for summary judgment asserting that the statute could not be used to save the plaintiff's action because the omissions of the plaintiff went beyond simple accident or mere negligence. Id. The defendants argued that the plaintiff failed to: file responsive pleadings to the defendants' special defenses; respond to the defendants' standard written interrogatories and production requests; or respond to the court's order of compliance. Id. The court held that the plaintiff's conduct did not rise to the level of egregious conduct and denied the defendant's motion for summary judgment because there was an issue of fact as to when notice of the nonsuit was received by the plaintiff. Id. The case presently before the court is factually similar to Boland where the plaintiff failed to respond to the court's order of compliance. In this case, the plaintiff has submitted evidence that compliance was made with discovery requests on July 21, 2002, October 24, 2001 and July 11, 2002. Further, the plaintiff has submitted evidence to show that compliance has been made in this second action. It is therefore submitted that the conduct of plaintiff's counsel in the first action was due to mere mistake, inadvertence or excusable neglect and did not rise to the level of egregious conduct.
The case presently before the court is distinguishable from Harmon v. Ruth, Superior Court, judicial district of New Britain, Docket No. CV 03 0519435 (May 5, 2003, Bryant, J.), a somewhat factually similar case, where the court granted summary judgment after concluding that plaintiff's counsel had failed to obtain and disclose medical records because the plaintiff simply refused to pay for them. Here the failure to disclose medical records was the result of a turnover in staff at counsel's office, the death of the plaintiff and other problems including the legibility of various records that were disclosed. These problems do not amount to egregious conduct as the conduct described in Harmon did.
This decision is in keeping with the general philosophy of the Connecticut Supreme Court. The court has recently reiterated this philosophy in a case involving the accidental failure of suit stating: "The accepted policy is to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court . . . Our practice does not favor the termination of proceedings without a determination of the merits of the controversy where that can be brought about with due regard to necessary rules of procedure." (Internal quotation marks omitted). Rocco v. Garrison, 268 Conn. 541, 558 (2004). This decision is also in accordance with the court's recent decision in Laperuta v. State, Superior Court, judicial district of New Britain, Docket No. 04 0525115 (May 19, 2004, Cohn, J.) Therefore, the defendants' motion for summary judgment should be denied.
Henry S. Cohn, J.