Opinion
No. CV05 5000078-S
August 31, 2005
MEMORANDUM OF DECISION RE MOTION TO STRIKE #101
I DISCUSSION
On February 16, 2005, the plaintiff, David Martorelli, commenced this action pursuant to General Statutes § 52-592, the accidental failure of suit statute, which allows a party to file a second lawsuit, under certain conditions, within one year after the determination of the original action. In his complaint in negligence against the defendant, Lowes Home Centers, Inc. (Lowes), the plaintiff alleges that on February 2, 2002, at 10:15 a.m., he slipped and fell on ice and snow in its garden center.
Section 52-592 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 . . . for any matter of form . . . the plaintiff . . . 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."
On March 4, 2005, the defendant filed a motion to strike on the ground that the plaintiff's complaint is barred by the statute of limitations, and, therefore, cannot be saved under § 52-592. A memorandum of law in support of the motion was submitted in which the defendant argues that (1) the underlying case was filed on March 12, 2002, and a judgment of nonsuit was entered on August 15, 2002; (2) the plaintiff filed a motion to open the nonsuit dated June 2, 2003; and (3) under the General Statute, § 52-592, the plaintiff had one year from August 15, 2002, to commence a new action or at the latest one year from June 2, 2003, which the plaintiff did not do.
The motion is dated June 2, 2003, but was filed with the court on June 16, 2003.
On April 7, 2005, the plaintiff filed his memorandum of law in opposition to the motion. The plaintiff argues CT Page 11768-le that the issue to be decided is when did the plaintiff receive actual or constructive notice of the dismissal of the underlying action and was this present action commenced within one year after the date the plaintiff received notice. The plaintiff argues that because both parties had been communicating with each other, even after June 2003, about settling this case and the defendant was asking the plaintiff to help locate a witness, the plaintiff did not become aware of the dismissal of the first case until December 2004. The plaintiff further argues that a motion to open nonsuit was filed on June 2, 2003, but never ruled on by the court for "reasons unknown." A supplemental memorandum of law was filed by the defendant on April 18, 2005, asserting that the plaintiff did not diligently prosecute this case because the plaintiff never sought a ruling on the motion to open the nonsuit and that this case was then brought more than one year following dismissal and notice of dismissal of the underlying case.
In support of this argument on notice, the plaintiff relies on Henriquez v. Allegra, 68 Conn.App. 238, 789 A.2d 1142 (2002). In Henriquez, the court stated that "a plaintiff who fails to receive timely notice of the dismissal of his original action is not barred from pursuing his action pursuant to § 52-592" but that "the plaintiff still must commence his action under § 52-592 within one year after the date the court determines that he received notice of the dismissal." Id., 247.
"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). In the present case, the plaintiff has failed to explain why he never sought a ruling on the motion to open the nonsuit or why he did not file a subsequent action within one year after notice of the dismissal of the original action. Under these circumstances, § 52-592 cannot save the present case from having been brought beyond the applicable statute of limitations. Accordingly, the instant motion is granted.
So Ordered.
BY THE COURT
Peter Emmett Wiese, Judge CT Page 11768-lf