Opinion
No. HHB CV 05 4002977 S
October 31, 2007
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT (#108)
This matter is before the court concerning the defendant's motion for summary judgment. The parties presented oral argument at the short calendar on October 1, 2007. After considering the parties' written submissions and oral arguments, the court issues this memorandum of decision. For the reasons set forth below, the motion is granted.
I BACKGROUND
This action involves the plaintiff, Zenon Drwiega's allegations of medical malpractice in the performance of a laminectomy and diskectomy on May 30, 2001 by defendant Joseph Aferzon, M.D. See complaint, all counts, ¶ 4. The plaintiff claims that, as a result of the defendant's negligence, he sustained personal injuries and damages. He and his spouse, plaintiff Maria Drwiega, also allege loss of consortium. A previous action, brought by the same plaintiffs, making the same allegations against the defendant, was dismissed by the court on December 1, 2003 (original action). See Drwiega v. Aferzon, Superior Court, judicial district of New Britain at New Britain, Docket No. CV 03 0521686 (December 1, 2003, Robinson, J.).
In his motion, the defendant contends that he is entitled to summary judgment because the limitations period contained in General Statutes § 52-584 expired prior to the commencement of this action, and the action is not saved by General Statutes § 52-592, the accidental failure of suit statute. The defendant asserts that the original action was not commenced within the time limited by law; that the "improper service" which occurred in the original action was not "due to unavoidable accident or the default or neglect of the officer to whom it was committed," as required by § 52-592; and the plaintiffs did not commence the present action within the one-year period provided by § 52-592. In support of his motion, the defendant has presented a copy of the marshal's return in this action and a copy of Judge Robinson's decision in the original action, cited above.
In their opposition, the plaintiffs argue that the original action was commenced within the time permitted by law, the "improper service" which occurred in the original action satisfied the elements required by § 52-592, and the instant action was timely commenced in accordance with General Statutes §§ 52-592 and 52-593a. In support of their opposition, the plaintiffs have presented copies of the summons and complaint in the original action, an affidavit from Connecticut State Marshal Robert J. Tasillo (Tasillo affidavit), and copies of the summons and complaint in this action.
II STANDARD OF REVIEW
"To succeed on a motion for summary judgment, [t]he movant must show 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 . . . [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." (Emphasis in original; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).
"[I]n 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 the material facts, which, under applicable principles of substantive law, entitle[s] him to a judgment as a matter of law." (Internal quotation marks omitted.) Socha v. Bordeau, 277 Conn. 579, 585, 893 A.2d 422 (2006). "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 such 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.) Id., 586.
"[O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." (Internal quotation marks omitted.) New Haven v. Pantani, 89 Conn.App. 675, 678, 874 A.2d 849 (2005). A preliminary showing of genuineness is required. See id., 679, citing Conn. Code of Evidence § 9-1. However, the Supreme Court has stated that parties may "knowingly waive . . . compliance with the procedural provisions of the Practice Book relating to motions for summary judgment." (Footnote omitted.) Krevis v. Bridgeport, 262 Conn. 813, 824, 817 A.2d 628 (2003). Also, the Supreme Court has stated, "[w]e previously have afforded trial courts discretion to overlook violations of the rules of practice and to review claims brought in violation of those rules as long as the opposing party has not raised a timely objection to the procedural deficiency." Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 273, 819 A.2d 773 (2003). Here, no objection was raised to any exhibit. Accordingly, the court deems such objections to have been waived. In the exercise of its discretion, the court has considered the exhibits which were presented.
Each side has referred to Judge Robinson's decision in the original action, which was presented with the defendant's motion papers, and as to which the court takes judicial notice. In addition, the defendant requests the court to take judicial notice of the court's file in the original action. "There is no question that the trial court may take judicial notice of the file in another case, whether or not the other case is between the same parties . . . [I]t is understood that matter[s] which it is claimed the court should judicially notice should ordinarily be called to its attention by a party seeking to take advantage of it in the course of presenting evidence in the case so that, if there is ground upon which it may be contradicted or explained, the adverse party will be afforded an opportunity to do so . . . Moreover, [j]udicial notice . . . meets the objective of establishing facts to which the offer of evidence would normally be directed . . ." (Citation omitted; internal quotation marks omitted.) Jewett v. Jewett, 265 Conn. 669, 678-79 n. 7, 830 A.2d 193 (2003).
III DISCUSSION Commencement Of Action Within Time Limit Provided By Law
The court first addresses the issue of whether, as the plaintiffs contend, the original action was commenced, as required by the accidental failure of suit statute, General Statutes § 52-592. Judge Robinson's decision sets forth various undisputed facts concerning the original action, which are reflected in the court's file concerning it, and as to which the court takes judicial notice. Therein, the court stated, "As is indicated by the State Marshal's Return, Service was made on June 5, 2003 as follows: [']Then and by virtue hereof, on the 5th day of June 2003, I made due and legal service on the within named defendant, JOSEPH AFERZON, M.D., by leaving a true and attested verified copy of the within original Writ, Summons, Complaint, State of Amount In Demand and Certificate of Reasonable Inquiry, with and in the hands of Irene Flich, Office Manager who stated she was duly authorized to accept service for said defendant, at in the Town of New Britain.['] The defendant appeared in this matter on June 26, 2003." Drwiega v. Aferzon, supra, Superior Court, Docket No. CV 03 0521686. See also Tasillo affidavit, ¶ 3.
Judge Robinson also stated, "Section 52-57 of the Connecticut General Statutes concerns the manner of service of process in this state. Subsection 52-57(a) of this statute provides that: [']Except as otherwise provided, process in any civil action shall be served by leaving a true and attested copy of it, including the declaration or complaint, with the defendant, or at his usual place of abode, in this state.[']" Drwiega v. Aferzon, supra, Superior Court, Docket No. CV 03 0521686.
The court found that "the Marshal's Return of Service indicates that the service in this matter was not made in the hands of the defendant Joseph Aferzon, M.D., nor was it made at his usual place of abode." Id. The plaintiffs argued that proper service had been made on the office manager "who in accordance with Conn. Gen. Stat. § 52-57(c) can lawfully receive service of process on behalf of Joseph Aferzon, M.D. LLC." Id.
Section 52-57(c) provides, "[i]n actions against a private corporation, service of process shall be made either upon the president, the vice president, an assistant vice president, the secretary, the assistant secretary, the treasurer, the assistant treasurer, the cashier, the assistant cashier, the teller or the assistant teller or its general or managing agent or manager or upon any director resident in this state, or the person in charge of the business of the corporation or upon any person who is at the time of service in charge of the office of the corporation in the town in which its principal office or place of business is located. In actions against a private corporation established under the laws of any other state, any foreign country or the United States, service of process may be made upon any of the aforesaid officers or agents, or upon the agent of the corporation appointed pursuant to section 33-922."
The court also stated, "[t]he plaintiff[s'] reliance on the provisions of Subsection 52-57(c) is misplaced in light of the fact that the instant action was brought against Joseph Aferzon, M.D., the individual and not Joseph Aferzon, M.D., LLC . . . Whereas the action was brought against an individual and not a corporation, the provisions of § 52-57(a) C.G.S. apply. For the foregoing reasons, the defendant's motion to dismiss for lack of personal jurisdiction is granted." (Footnote omitted.) Id. Here, as noted above, the current, second action is also brought against the defendant as an individual.
This second action was commenced when the defendant was served by the marshal on December 7, 2004, as stated on the return in this action. See defendant's Exhibit A (return); Tasillo affidavit, ¶ 6. As noted above, in their complaint, the plaintiffs allege that the defendant's negligent conduct occurred on May 30, 2001, more than three years earlier.
General Statutes § 52-584 is the applicable statute of limitation here. "Section 52-584 requires [health care malpractice] actions to be brought 'within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered . . .' The statute also establishes a repose period under which 'no such action may be brought more than three years from the date of the act or omission complained of . . .' [T]he relevant 'date of the act or omission complained of, . . .' as that phrase is used in § 52-584, is 'the date when the negligent conduct of the defendant occurs and . . . not the date when the plaintiff first sustains damage.'" Grey v. Stamford Health System, Inc., 282 Conn. 745, 750-51, 924 A.2d 831 (2007). "[A]n action commenced more than three years from the date of the negligent act or omission complained of is barred by the statute of limitations contained in § 52-584, regardless of whether the plaintiff had not, or in the exercise of [reasonable] care, could not reasonably have discovered the nature of the injuries within that time period." (Internal quotation marks omitted.) Neuhaus v. DeCholnoky, 280 Conn. 190, 201, 905 A.2d 1135 (2006).
The plaintiffs assert that this action is timely under the accidental failure of suit statute, General Statutes § 52-592. They contend that the original action was commenced by their acknowledged "improper" attempt to serve the defendant by leaving the original process in the hands of the office manager. See plaintiff's opposition, p. 1.
General Statutes § 52-592(a) provides, in relevant part, "(a) If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits 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, . . . the plaintiff . . . may commence a new action . . . for the same cause at any time within one year after the determination of the original action . . ." (Emphasis added.)
The plaintiffs also contend that the instant action is timely, even though it was commenced more than one year after the original action was dismissed, based on the grace period provided in General Statutes § 52-593a. Section 52-593a states, in relevant part, "(a) Except in the case of an appeal from an administrative agency governed by section 4-183, a cause or right of action shall not be lost because of the passage of the time limited by law within which the action may be brought, if the process to be served is personally delivered to a state marshal authorized to serve the process and the process is served, as provided by law, within thirty days of the delivery." P.A. 03-224 increased the time period for service of process from 15 to 30 days in Sub sec. (a).
The court is guided by appellate authority in determining whether the original action was "commenced." The Supreme Court recently reiterated that, "under the law of our state, . . . an action is commenced not when the writ is returned but when it is served upon the defendant." (Footnote omitted; internal quotation marks omitted.) Rocco v. Garrison, 268 Conn. 541, 549, 848 A.2d 352 (2004).
Two recent appellate decisions provide useful illustrations. See Davis v. Family Dollar Store, 78 Conn.App. 235, 826 A.2d 262 (2003), appeal dismissed, 271 Conn. 655, 859 A.2d 25 (2004) and Rocco v. Garrison, supra. In Davis v. Family Dollar Store, supra, the plaintiff gave a sheriff service of process papers three days prior to the expiration of the limitations period. The sheriff failed to make service and returned the writ of summons and complaint to the plaintiff over six months later. Relying on General Statutes § 52-592, the plaintiff filed a new action. See id., 78 Conn.App. 236. Since the applicable statute of limitations had expired, see id., 236, the Appellate Court affirmed the trial court's granting of summary judgment, concluding, "[T]he [plaintiff] must satisfy all of the criteria in § 52-592 in order to prevail . . . The plaintiff, here, has not fulfilled the requirements of § 52-592. The original action was not commenced, resulting in an unseasonable suit. Although the statute is remedial, the language is clear and unambiguous . . . Without the commencement of an original action, no action exists for the statute to save." (Citations omitted; internal quotation marks omitted.) Id., 242. The Supreme Court thereafter dismissed the appeal on the ground that certification was improvidently granted. Id., 271 Conn. 657.
In Rocco v. Garrison, supra, 268 Conn. 541, the defendant received, by certified mail, four days prior to the expiration of the applicable statute of limitations period, a summons and complaint which had been filed in federal court. See id., 545-46. The defendant, however, did not sign and return the formal waiver of service form and thus, under the Federal Rules of Civil Procedure, formal service of process was not effected until after the statute of limitations lapsed. See id., 546. After a summary judgment motion was granted in the United States District Court, based on the expiration of the statute of limitations, the plaintiff filed another action in the Superior Court, relying on § 52-592. Id.
In reversing the Superior Court's granting of summary judgment, the Supreme Court found that "[b]y following the procedure set forth in [Fed.R.Civ.P.] 4(d)(2) to obtain a waiver of formal service from the defendant, the plaintiffs, for all practical purposes, also satisfied the requirements of state law pertaining to formal service of process. In Connecticut, an action is commenced when the writ, summons and complaint have been served upon the defendant . . . [T]he summons, a copy of the complaint and a notice of the action were delivered to the defendant by certified mail four days before the expiration of the statute of limitations. Moreover, the plaintiffs filed the complaint in the District Court, as required under the federal rules, prior to the issuance of the signed and sealed summons . . . Accordingly, there is ample support for our conclusion that the original action was commenced in a timely manner within the meaning of [§ 52-592]." (Citations omitted; emphasis added.) Rocco v. Garrison, supra, 268 Conn. 553.
"When read together, the Davis and Rocco decisions make it clear that improper or insufficient service is different from no service at all . . . If the statutory time has lapsed after service was previously made, albeit improperly, an action has commenced for purposes of § 52-592. In contrast if service was not made by the statutory period, irrespective of whether service of process was timely delivered to a marshal and even attempted, the action has not commenced." (Citation omitted.) Illescas v. Needham, Superior Court, judicial district of Hartford at Hartford, Docket No. CV 04 4005457 (August 10, 2006, Elgo, J.) ( 41 Conn. L. Rptr. 806). "It is not attempted service but actual service that commences an action in Connecticut." Gallop v. Commercial Painting Co., Inc., 42 Conn.Sup. 187, 189, 612 A.2d 826 (1992) [ 6 Conn. L. Rptr. 9]. See also Hird v. Iskra, Superior Court, judicial district of New Britain at New Britain, Docket No. CV 03 0520308 (December 14, 2004, Berger, J.) ( 38 Conn. L. Rptr. 410) (prior action arising from motor vehicle accident was "commenced" under § 52-592, where service delivered to defendant by certified mail, pursuant to General Statutes § 52-63, which permits process to be served in that manner, one day after limitations period expired, due to General Statutes 52-593a's former fifteen-day grace period for service.)
Section 52-63(b) provides, "Service of civil process may be made on a motor vehicle operator licensed under the provisions of chapter 246 by leaving a true and attested copy of the writ, summons and complaint at the office of the Commissioner of Motor Vehicles at least twelve days before the return day and by sending such a true and attested copy at least twelve days before the return day, by registered or certified mail, postage prepaid and return receipt requested, to the defendant at his last address on file in the Department of Motor Vehicles if (1) it is impossible to make service of process at the operator's last address on file in the Department of Motor Vehicles, and (2) the operator has caused injury to the person or property of another."
The plaintiffs also argue that the defendant had actual notice of the case within § 52-584's three-year limitation period, based on service on the office manager on June 5, 2003, and the filing of the defendant's appearance in the original action on June 26, 2003. As explained above, service on the office manager was not authorized by law; it had no legal significance. Similarly unavailing to the plaintiffs is the defendant's filing of an appearance in the original action. As the Supreme Court stated in Young v. Margiotta, 136 Conn. 429, 433, 71 A.2d 924 (1950), an action is begun "only when the defendants are brought within the jurisdiction of the court by service of a writ upon them or by their voluntary appearance." Filing an appearance to timely contest personal jurisdiction is neither a voluntary appearance nor a substitute for service of process. As stated above, to avail themselves of § 52-592(a), the plaintiffs must show that the original action was "commenced within the time limited by law." Here, the undisputed facts show that the original action was not commenced.
As the court concluded in the original action, the defendant's motion to dismiss was timely filed within thirty days of the filing of the appearance. See Drwiega v. Aferzon, supra, Superior Court, Docket No. CV 03 0521686, #101; Practice Book § 10-30.
As set forth above, in the original action against the defendant, the court determined that personal jurisdiction was lacking over the defendant because he had not been served. Only the office manager was served. Under these circumstances, the original action was not "commenced" within the meaning of § 52-592(a). Accordingly, the plaintiffs' attempt at service, by serving the wrong person, was insufficient, as a matter of law, to trigger § 52-592. In the absence of service on the defendant within the limitations period, the original action was not commenced. In the absence of a commenced prior action, there was no action to be saved by § 52-592. "Without the existence of a prior action, the plaintiff cannot invoke the protection of § 52-592. Section 52-592 requires that the initial suit be commenced within the time limited by law." (Internal quotation marks omitted.) Davis v. Family Dollar Store, supra, 78 Conn.App. 240-41. Since the defendant was not served until December 7, 2004, which was not within the limitations period provided in § 52-584, this action is time-barred. See Neuhaus v. DeCholnoky, supra, 280 Conn. 201.
Since, as to the motion, the above discussion is dispositive, the court need not address the defendant's other arguments.
CONCLUSION
For the reasons stated above, the defendant's motion for summary judgment is granted.
It is so ordered.