Opinion
No. CV10 6014230S
June 23, 2011
MEMORANDUM OF DECISION IN RE MOTION TO DISMISS (#101)
PROCEDURAL AND FACTUAL BACKGROUND
The trial court, Zoarski, J., rendered a judgment of nonsuit on August 3, 2009, in connection with the plaintiff's original action, Mercado v. Murrell, Superior Court, judicial district of New Haven, Docket No. 07 5010592 (August 3, 2009) ( Mercado I). On July 29, 2010, the plaintiff, Patricia Mercado, commenced this action ( Mercado II) against the defendant, Phyllis J. Murrell, for injuries sustained after a motor vehicle accident allegedly caused by the defendant's negligence on April 23, 2005. In Mercado II, the plaintiff's complaint sets forth identical allegations and claims as those in Mercado I, pursuant to the accidental failure of suit statute, General Statutes § 52-592 et seq.
The court will take judicial notice of the procedural history in Mercado I. See Hryniewicz v. Wilson, 51 Conn.App. 440, 444, 722 A.2d 288 (1999) (stating that "[t]he trial court has the power to take judicial notice of court files of other actions between the same parties").
Section 52-592(a) 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 . . . a judgment of nonsuit has been rendered . . . the plaintiff . . . may commence a new action . . . for the same cause at any time within one year after the determination of the original action . . ."
A review of the court file in Mercado I reveals the following procedural history. In Mercado I, the plaintiff filed a two-count complaint on April 17, 2007, against the defendant for the alleged negligent operation of a motor vehicle. On July 18, 2007, the defendant submitted her answer and special defenses, to which the plaintiff replied on July 23, 2007. On August 2, 2007, the defendant served the plaintiff with interrogatories and requests for production (discovery requests). On August 13, 2007, the plaintiff requested an extension of time to respond to the discovery requests until October 1, 2007.
On February 25, 2008, the defendant filed a motion for nonsuit after failing to receive responses to the discovery requests. One week later, however, the plaintiff responded to the discovery requests. On June 2, 2009, the defendant filed another motion for nonsuit arguing that the plaintiff had yet to comply fully with the discovery requests. In particular, the defendant asserted that several records and documents were not provided, and attached a letter dated April 3, 2008, addressed to the plaintiff's attorney highlighting the documents still needed. Three days later, on June 5, 2009, the plaintiff filed an objection to the defendant's motion for nonsuit. On June 15, 2009, the court ordered that full compliance with the discovery requests was required by July 10, 2009, or a judgment of nonsuit would be granted upon the defendant's motion. After the plaintiff failed to comply fully by July 10, 2009, the defendant filed a motion for nonsuit.
On July 30, 2009, the plaintiff filed a notice of intent to argue the defendant's motion for nonsuit and submitted two objections to the motion. In the objections, the plaintiff's attorney argued that his client was currently incarcerated and that he recently became aware of her present location. Moreover, the plaintiff argued that she did not fail to respond completely to the discovery requests and would be able to secure the necessary documents for the defendant within thirty days. On August 3, 2009, the court granted the defendant's motion for nonsuit. The plaintiff did not file a motion to open the judgment within four months as required by General Statutes § 52-212.
Section 52-212(a) provides in relevant part: "Any judgment rendered or decree passed upon a default or nonsuit in the Superior Court may be set aside, within four months following the date on which it was rendered or passed . . ."
The plaintiff thereafter commenced Mercado II on July 29, 2010, within the one-year time limitation set forth in the accidental failure of suit statute, § 52-592. On October 14, 2010, the defendant filed a motion to dismiss Mercado II on the ground that despite § 52-592, the court lacks subject matter jurisdiction because the plaintiff failed to commence the action within the two-year statute of limitations provided by General Statutes § 52-584. The plaintiff submitted a memorandum of law in opposition to the defendant's motion to dismiss. In support of the opposition, the plaintiff submits the following evidence: (1) an affidavit executed by the plaintiff's counsel, (2) a status conference agreement form dated October 26, 2009, and (3) correspondence via electronic mail between the plaintiff's counsel and the defendant's counsel. This matter was heard at short calendar on April 4, 2011. At oral argument, both parties agreed for this court to decide the present motion as a motion for summary judgment.
Section 52-584 provides in relevant part: "No action to recover damages for injury to the person . . . caused by negligence . . . shall be brought but within two years from the date when the injury is first sustained or discovered . . ."
Although the plaintiff submitted her opposition to the court at the short calendar hearing, it should be noted that the plaintiff has yet to file its opposition with the court. The plaintiff also has not certified that she served the defendant with a copy of the opposition.
"A statute of limitations defense `must be specially pleaded and cannot be raised by a [motion to dismiss.]'" Gello v. Stevens, Superior Court, judicial district of New Haven, Docket No. 09 5030093 (December 14, 2010, Robinson, J.), quoting Ross Realty Corp. v. Surkis, 163 Conn. 388, 391, 311 A.2d 74 (1972); see also Viejas Band of Kumeyaay Indians v. Lorinsky, 116 Conn.App. 144, 155 n. 14, 976 A.2d 723 (2009) (when asserting that an action is not saved by § 52-592, the proper motion to file is a motion for summary judgment); see also LaBow v. LaBow, 85 Conn.App. 746, 750, 858 A.2d 882 (2004), cert. denied, 273 Conn. 906, 868 A.2d 747 (2005).
DISCUSSION
"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 as to any 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.) Sherman v. Ronco, 294 Conn. 548, 553-54, 985 A.2d 1042 (2010). "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." (Internal quotation marks omitted.) Jackson v. Tohan, 113 Conn.App. 782, 786, 967 A.2d 634, cert. denied, 292 Conn. 908, 973 A.2d 104 (2009).
"Summary judgment may be granted where the claim is barred by the statute of limitations." (Internal quotation marks omitted.) Flannery v. Singer Asset Finance Co., LLC, 128 Conn.App. 507, 512-13 (2011); Rosenfield v. I. David Marder Associates, LLC, 110 Conn.App. 679, 684, 956 A.2d 581 (2008). "Filing an action beyond the date established by the applicable limitations is an appropriate ground on which to grant a motion for summary judgment when the `material facts concerning the statute of limitations [are] not in dispute . . .'" Vestuti v. Miller, 124 Conn.App. 138, 140 n. 2, 3 A.3d 1046 (2010), quoting Burns v. Hartford Hospital, 192 Conn. 451, 452, 472 A.2d 1257 (1984).
The defendant argues that despite the accidental failure of suit statute, the court lacks subject matter jurisdiction over the present case, as the plaintiff failed to commence the action within the two-year statute of limitations provided in § 52-584. The defendant argues that the plaintiff cannot avail herself of the accidental failure of suit statute because the plaintiff cannot establish that the prior action was dismissed for mistake, inadvertence or excusable neglect.
The defendant did not plead § 52-584 as a special defense. The plaintiff, however, failed to "bring to the court's attention the fact that the [defendant has] not alleged § 52-584 as a special defense. The plaintiff, therefore, [waives] any objection to the [defendant's] failure to plead § 52-584 as a special defense." Mountaindale Condominium Assn., Inc. v. Zappone, 59 Conn.App. 311, 318, 757 A.2d 608, cert. denied, 254 Conn. 947, 762 A.2d 903 (2000).
In opposition to the motion, the plaintiff does not address the statute of limitations under § 52-584. Rather, the plaintiff argues that the present action falls within the scope of § 52-592 because the plaintiff's noncompliance with discovery requests and a court order was not egregious, but instead occurred as a result of mistake, inadvertence or excusable neglect.
As a threshold issue, the court must determine whether the present action was commenced within the applicable statute of limitations, § 52-584. Section 52-584 provides in relevant part: "No action to recover damages for injury to the person . . . caused by negligence . . . shall be brought but within two years from the date when the injury is first sustained or discovered . . ." In the present case, the plaintiff alleges that she sustained personal injuries caused by the defendant's negligence on April 23, 2005. The defendant, however, was not served with process until July 29, 2010. "The date the action was commenced is the date of service of process, which is when the writ of summons and complaint were served on the defendants." Bryne v. Burke, 112 Conn.App. 262, 272 n. 11, 962 A.2d 825, cert. denied, 290 Conn. 923, 966 A.2d 235 (2009), citing Rocco v. Garrison, 268 Conn. 541, 553, 848 A.2d 352 (2004). Therefore, unless § 52-592 warrants relief, the statute of limitations provided by § 52-584 bars the plaintiff from bringing this claim.
"General Statutes § 52-592 commonly is known as the saving statute." Tellar v. Abbott Laboratories, Inc., 114 Conn.App. 244, 250, 969 A.2d 210 (2009). Section 52-592(a) 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 . . . a judgment of nonsuit has been rendered . . . the plaintiff . . . may commence a new action . . . for the same cause at any time within one year after the determination of the original action . . ." Section 52-592 "is remedial and is to be liberally interpreted . . . to ensure the plaintiff the right to a trial of his claim." (Citations omitted; internal quotation marks omitted.) Tellar v. Abbott Laboratories, Inc., supra, 250. "[L]ooming behind § 52-592 is the overarching policy of the law to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court." (Internal quotation marks omitted.) Skinner v. Doelger, 99 Conn.App. 540, 554-55, 915 A.2d 314, cert. denied, 282 Conn. 902, 919 A.2d 1037 (2007); see also Peabody N.E., Inc. v. Dept. of Transportation, 250 Conn. 105, 127, 735 A.2d 782 (1999).
Section 52-592 "is not available to every plaintiff whose action fails for any of the reasons enumerated in the statute, but, rather, is available to those plaintiffs who bring their original actions within the last year of the applicable statute of limitations periods. [The Supreme Court notes], however, that, even in such cases, the period within which to file a complaint would not necessarily extend the statute of limitations period by one year but would, instead, extend the filing period only to one year from the date of the failure of the original action." Peabody N.E., Inc. v. Dept. of Transportation, 250 Conn. 105, 127, 735 A.2d 782 (1999).
"In the seminal case of Ruddock v. Burrowes . . . our Supreme Court considered whether a disciplinary dismissal may be characterized as a dismissal `for any matter of form' for purposes of obtaining relief pursuant to § 52-592. The court concluded that `disciplinary dismissals are not excluded categorically from the relief afforded by § 52-592(a)' . . . rather, whether the dismissal of a prior proceeding permitted a plaintiff recourse to the statute `depends upon the nature and the extent of the conduct that led to the disciplinary dismissal.'" (Citations omitted.) Vestuti v. Miller, supra, 124 Conn.App. 143-44. Therefore, "[d]isciplinary dismissals do not, in all cases, demonstrate the occurrence of misconduct so egregious as to bar recourse to § 52-592." Ruddock v. Burrowes, 243 Conn. 569, 576, 706 A.2d 967 (1998).
"Disciplinary dismissals refer to cases dismissed for a variety of punitive reasons, such as the failure to attend a scheduled pretrial conference . . . or the failure to close the pleadings in a timely manner." (Internal quotation marks omitted.) Vestuti v. Miller, supra, 124 Conn.App. 144 n. 5. In particular, "[a] nonsuit for failure to comply with discovery is termed a disciplinary dismissal." Salvas v. Halperin, Superior Court, judicial district of Windham, Docket No. 03 0071552 (May 5, 2005, Riley, J.).
"[Our Supreme Court has] noted the fact-sensitive nature of the [§ 52-592] inquiry and held that, [t]o enable a plaintiff to meet the burden of establishing the right to avail himself or herself of [§ 52-592], 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." (Emphasis in original; internal quotation marks omitted.) Plante v. Charlotte Hungerford Hospital, 300 Conn. 33, 50, 12 A.3d 885 (2011). "Whether the statute applies cannot be decided in a factual vacuum; Ruddock v. Burrowes, supra, 243 Conn. 576; [and a] determination of the applicability of § 52-592 depends on the particular nature of the conduct involved." Stevenson v. Peerless Industries, Inc., 72 Conn.App. 601, 607, 806 A.2d 567 (2002). "[I]t is appropriate to consider each case along a continuum; at one extreme are dismissals for mistake or inadvertence, at the other extreme are dismissals for serious misconduct or a series of cumulative transgressions." (Internal quotation marks omitted.) Tellar v. Abbott Laboratories, Inc., supra, 114 Conn.App. 251.
"While the increase in time that has resulted from the course of the pleadings is one factor for the court to weigh, the nature and the extent of the conduct which led to the disciplinary dismissal also is determined by the number of transgressions, the flagrancy of them and consideration of any facts which might mitigate their weight, such as uncooperative or inaccessible clients or other exigencies facing the attorney responsible for the timely prosecution of the plaintiffs' claims." Oliver v. Foo, Superior Court, judicial district of Fairfield, Docket No. 99 0360739 (November 5, 2003, Doherty, J.).
On a summary judgment motion involving § 52-592, when there is an absence of a genuine issue of material fact as to the procedural history of the original action and the evidence submitted by the parties, the determination of whether a plaintiff may avail himself or herself of § 52-592 is a legal issue for the trial court to determine. Gillum v. Yale University, 62 Conn.App. 775, 784-86, 773 A.2d 986, cert. denied, 256 Conn. 929, 776 A.2d 1146 (2001); see also St Val v. Molinar, Superior Court, judicial district of Stamford-Norwalk, Docket No. 03 0193234 (June 23, 2003, Lewis, J.T.R.) ("[w]hether the prior dismissal was a `matter of form' is, in the absence of a genuine issue of material fact, a legal issue for the trial court to determine"). This standard is illustrated by controlling decisions interpreting claims pursuant to § 52-592. In Vestuti v. Miller, supra, 124 Conn.App. 138, our Appellate Court recently addressed a situation where there was a genuine issue of material fact as to the parties' explanations for the plaintiff's failure to attend a pretrial conference. The trial court granted the defendant's motion for a judgment of nonsuit in the original action after the plaintiff failed to attend a pretrial conference. Id., 139-40. Subsequently, the plaintiff commenced another action pursuant to § 52-592, setting forth identical allegations and claims. Id., 140. In response, the defendant moved for summary judgment arguing "that the plaintiff's attorney knew about the pretrial conference and, thus, made a conscious decision not to attend." Id., 141. The trial court, Cronan, J., granted the defendant's motion without finding facts regarding the plaintiff's attorney's "claimed `inadvertent' failure to attend the pretrial conference due to the complexity of the trial she was litigating and her failure to request a recess to attend the pretrial conference." Id., 142 n. 4.
In reversing the trial court, the Appellate Court stated that the trial court's "memorandum of decision fails to consider the claimed justification for the failure of the plaintiff's attorney to attend the pretrial conference." Id., 145. The court further held "that this alleged justification creates a genuine issue of material fact as to whether the plaintiff can establish that the disciplinary nonsuit was a matter of form . . ." (Internal quotation marks omitted.) Id. Although the court points out that "[t]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment"; id., 142; the court also explains that "[w]ithout the trial court appropriately weighing the evidence and determining credibility, there is an insufficient evidentiary basis for this case to be accurately placed on the § 52-592 continuum." (Internal quotation marks omitted.) Id., 146-47; see also Gillum v. Yale University, supra, 62 Conn.App. 785 (rejecting the argument "that a jury should have been entitled to resolve the issue of whether the conduct should be considered to be a `matter of form' for purposes of [§ 52-592]"); see also Plante v. Charlotte Hungerford Hospital, supra, 300 Conn. 51. Nevertheless, as noted above, in the absence of a genuine issue of material fact, the determination of whether a plaintiff may avail himself or herself of § 52-592 is a legal issue for the trial court to determine.
Our Appellate Court has also recently addressed § 52-592 in connection to a plaintiff's noncompliance with discovery requests when determining whether a plaintiff may avail himself or herself § 52-592. In Tellar v. Abbott Laboratories, Inc., supra, 114 Conn.App. 246, the defendant served sixty-six interrogatories and nineteen documentary requests, which the plaintiff failed to answer. The court later granted the defendant's motion to compel discovery, and after the plaintiff failed to respond in any manner, the court rendered a judgment of dismissal. (Emphasis added.) Id. The plaintiff subsequently commenced an action pursuant to § 52-592, which was later dismissed by the trial court upon hearing the defendant's motion to dismiss. Id., 248-49. In reversing the trial court, the Appellate Court held that the plaintiff's conduct was not repeated or protracted, but consisted of a single failure to comply with a discovery request and a court order. Id., 252. The court focused on the plaintiff's undisputed explanation for his noncompliance; namely, that his attorney's family was suffering through severe health issues and his attorney's legal secretary underwent surgical procedures that required hospitalization. Id., 254. Based on these facts, the court found that the matter involved excusable neglect and remanded the case for further proceedings. Id., 255.
Another Appellate Court decision is similar to the present case. In Stevenson v. Peerless Industries, Inc., supra, 72 Conn.App. 603, the defendant filed a motion for judgment of nonsuit in response to the plaintiff's failure to comply with a request to revise and discovery requests. "The plaintiff did not respond to the motion for a judgment of nonsuit, nor did he attempt to open the judgment," [upon the trial court's granting of the motion for a judgment of nonsuit] Id., 603-04. The plaintiff filed a second action setting forth identical allegations and claims pursuant to § 52-592, which the defendant moved to dismiss on the ground that the plaintiff's failure to diligently prosecute the previous matter was not due to mistake, inadvertence or excusable neglect. Id.
In opposition to the motion to dismiss, the plaintiff argued that his failure to comply with discovery requests was due to miscommunication with one of the attorneys, who practiced in Pennsylvania. Id., 604-05. Moreover, the plaintiff also contended that once he received the discovery responses from the Pennsylvania attorney, the legal secretary for the plaintiff's attorney failed to recognize them as such, and therefore, neglected to prepare a motion to open the judgment, as instructed. Id., 605. Although the trial court granted the defendant's motion to dismiss, the Appellate Court reversed, holding that the plaintiff's actions did not rise to a level of egregious conduct. Id., 610 "[T]he court considered the fact that (1) the plaintiff's failure to respond to the discovery request occurred in the time span of six months . . . (2) the conduct did not result in considerable delay or inconvenience to the court or to opposing parties; (3) the plaintiff provided a credible excuse for his failure to respond; (4) it did not appear that the plaintiff failed to respond to [the defendant's] request for dilatory reasons or as a delay tactic, particularly when viewed in light of the fact that this case has not been plagued by years of unnecessary litigation . . . and (5) the plaintiff represented that he [was] prepared to comply with all requests." (Citations omitted; internal quotation marks omitted.) Tellar v. Abbott Laboratories, Inc., supra, 114 Conn.App. 253, citing Stevenson v. Peerless Industries, Inc., supra, 72 Conn.App. 609-10. Significantly, despite acknowledging that the plaintiff failed to file a motion to open the judgment of nonsuit in the previous action, the Appellate Court ruled that the plaintiff could avail himself of the accidental failure of suit statute. Stevenson v. Peerless Industries, Inc., supra, 72 Conn.App. 603, 609-10.
See Goncalves v. Superior Plating Co., Superior Court, judicial district of Fairfield, Docket No. 08 5015711 (September 9, 2010, Arnold, J.) (holding that one instance of noncompliance with a discovery request and an order is insufficient to strip the plaintiff of his right to avail himself of § 52-592); but see Coriano v. Menhennett, Superior Court, judicial district of Fairfield, Docket No. 05 4007629 (February 17, 2006, Rodriguez, J.) (granting the defendant's motion for summary judgment on the grounds that the plaintiff's attorney did not comply with the discovery requests for over four years); see also Saczawa v. Korba, Superior Court, judicial district of New Britain, Docket No. 03 0521291 (June 25, 2004, Cohn, J.) (allowing the plaintiff to proceed under § 52-592 even though a judgment of nonsuit was entered after the plaintiff failed to comply fully with discovery requests and a court order. The original action was commenced in 1999. In March 2002, the defendant filed a motion for nonsuit and the court, Cohn, J., ordered that the plaintiff comply with the requests by May 3, 2002. On May 14, 2002, the defendant filed another motion for nonsuit for failure to comply with the court order, which the court granted in June 2002).
In the present case, the defendant relies on the procedural history of Mercado I in support of her motion for summary judgment. The defendant bases her argument on the fact that the plaintiff failed to respond completely to the discovery requests during the time period of August 2007, through August 2009, and failed to comply with a court order. This is not a situation, however, where the plaintiff did not provide any response to the defendant's discovery requests. Moreover, the plaintiff's conduct consisted of only a single failure to comply with a court order involving the discovery requests.
In opposition to the defendant's motion, the plaintiff's attorney submits an affidavit attesting to the fact that the plaintiff was incarcerated throughout this period of noncompliance. See Ferreira v. Astrzenecalp, Superior Court, judicial district of Fairfield, Docket No. 08 5018490 (June 15, 2009, Hiller, J.) (holding that the plaintiff had the right to avail himself of § 52-592, as his previous noncompliance with discovery requests was caused by his difficulty in communicating with his attorney while being incarcerated and relocated on numerous occasions). The defendant does not dispute this fact, but instead argues that "obtaining [the plaintiff's] signature [for the necessary authorizations] was not impossible." Similar to Tellar v. Abbott Laboratories, Inc., supra, 114 Conn.App. 254, the plaintiff's attorney further attests that during this time period, multiple members of his immediate family were suffering from grave health and mental issues, and that his staff member was out of the office and eventually hospitalized for significant periods of time. Again, the defendant does not contradict these facts.
Although not required, the plaintiff also pleads facts in her complaint in support of availing herself of the accidental failure of suit statute. "While it has been suggested that it might be desirable for the plaintiff to plead sufficient facts necessary to bring the matter within the purview of § 52-592 . . . [our Supreme Court] has never held this to be a requirement . . . It has been and is the holding of [our Supreme Court] that matters in avoidance of the Statute of Limitations need not be pleaded in the complaint but only in response to such a defense properly raised." (Internal quotation marks omitted.) Beckenstein Enterprises-Prestige Park, LLC v. Keller, 115 Conn.App. 680, 690, 974 A.2d 764, cert. denied, 293 Conn. 916, 979 A.2d 488 (2009).
Before her noncompliance, the plaintiff timely replied to the defendant's answer and special defenses and moved the court for an extension of time to respond to the discovery requests. The plaintiff also filed objections to each motion for nonsuit heard by the trial court, which demonstrates that Mercado I was not prosecuted with "lackadaisical behavior by the [plaintiff] at every turn." (Internal quotation marks omitted.) Gillum v. Yale University, supra, 62 Conn.App. 783. Taking into consideration the uncontradicted procedural history of Mercado I and explanations submitted by the plaintiff, "there is [also] no indication that the plaintiff was attempting to thwart the defendant in [her] quest for discovery"; Goncalves v. Superior Plating Co., supra, Superior Court, Docket No. 08 5015711; and there is no evidence that the plaintiff failed to respond to the discovery requests for dilatory reasons or as a delay tactic.
While a motion to open the judgment of nonsuit in Mercado I is not a prerequisite for filing a new action under § 52-592, it should be noted that the plaintiff does provide an explanation for her failure to file a motion to open within four months as required by § 52-212. Section 52-212(a) provides in relevant part: "Any judgment rendered or decree passed upon a default or nonsuit in the Superior Court may be set side, within four months following the date on which it was rendered or passed . . ." In his affidavit, the plaintiff's attorney again references the serious health issues of his immediate family members and staff member. According to the plaintiff's attorney, these health issues caused the judgment of nonsuit to go unnoticed, which allowed the four months to elapse. Specifically, he avers that his replacement staff members most likely neglected to input this court order, which made him unaware of the judgment of nonsuit. The plaintiff's attorney also refers to and attaches a copy of a status conference agreement form that was signed by both parties' counsel approximately three months after the judgment of nonsuit was ordered by the court. This form purportedly assigned Mercado I to trial on either March 16, 2010, or April 6, 2010. As a result, the plaintiff's attorney argues that this form caused confusion and a reasonable belief that Mercado I was still pending.
"[P]ursuant to General Statutes § 52-592 . . . both the dismissal and the denial of a motion to open the dismissal may be followed by reinstitution of the underlying claim regardless of whether a motion to open the judgment has been filed . . ." (Citations omitted.) Morelli v. Manpower, Inc., 226 Conn. 831, 836-37, 628 A.2d 1311 (1993); see also Stevenson v. Peerless Industries, Inc., supra, 72 Conn.App. 603, 609-10 (holding that the plaintiff could avail himself of the accidental failure of suit statute by examining the facts that led to the judgment of dismissal; not the facts concerning the plaintiff's failure to file a motion for nonsuit).
In support of her motion, the defendant cites decisions in which the trial court held that a plaintiff could not avail itself of § 52-592. In Harmon v. Ruth, Superior Court, judicial district of New Britain, Docket No. 03 0519435 (May 5, 2003, Bryant, J.), the court granted the defendant's motion for summary judgment after concluding that the plaintiff's counsel failed to obtain and disclose medical records because the plaintiff refused to pay for them. The present case is readily distinguishable from Harmon, as the evidence submitted demonstrates that the plaintiff's failure to comply fully with the discovery requests in this case was not wilful, but was due to the incarceration of the plaintiff and the serious health issues involving the family of the plaintiff's attorney and the law firm's staff member. It is evident that these reasons for noncompliance are not analogous to those of Harmon.
The defendant's reliance on Pepitone v. Serman, 69 Conn.App. 614, 794 A.2d 1136 (2002), is similarly misplaced. In Pepitone, the Appellate Court affirmed the trial court's decision to grant the defendant's motion for summary judgment after the action was delayed nine years and dismissed twice. Id., 619-20. The plaintiff also failed to reply to the defendant's special defenses or answer her counterclaim, and provided no explanation for its conduct. Id., 620. Here, the plaintiff's conduct differs from and does not rise to the level of egregious conduct that transpired in Pepitone. The plaintiff timely answered the defendant's special defenses and provided evidence explaining her failure to comply fully with the discovery requests. Again, the plaintiff's noncompliance does not rise to the same level of egregious conduct involved in Pepitone.
The defendant also cites to Gillum v. Yale University, supra, 62 Conn.App. 775, where the Appellate Court held that the plaintiffs could not assert a cause of action under § 52-592. The present case is distinguishable from Gillum because in Gillum the trial court dismissed the plaintiff's action three separate times for dormancy, as a result of the plaintiff's failure to comply with discovery requests and failure to attend a mandatory pretrial conference.
The parties do not dispute the procedural facts of Mercado I that have brought this case before the court. Moreover, unlike Vestuti v. Miller, supra, 124 Conn.App. 146, the plaintiff provides explanations for her failure to comply fully with discovery requests. As a result, the court need only to decide whether any material fact is in dispute, and "whether the [defendant is] entitled to judgment in [her] favor as a matter of law." Gillum v. Yale University, supra, 62 Conn.App. 786. While the court should not condone the plaintiff's inaction in Mercado I; See St. Val v. Molinar, Superior Court, Docket No. 03 0193234; the plaintiff's conduct was not so egregious as to bar the plaintiff from availing herself of § 52-592. Although the plaintiff did not completely respond to the discovery requests during the time period of August 2007, through August 2009, the plaintiff's conduct involved only a single failure to comply with a court order. See Tellar v. Abbott Laboratories, Inc., supra, 114 Conn.App. 252. Unlike the plaintiff in Tellar, the plaintiff in the present case provided partial responses to discovery requests. See id., 246. Further, the plaintiff offers explanations similar to those that have been approved by our Appellate Court; specifically, that family members of the plaintiff's attorney were suffering from grave health and mental issues, and that a staff member of the law firm was hospitalized for significant periods of time. See id., 254. There is also nothing in the record to suggest that the plaintiff's noncompliance was for dilatory reasons or a delay tactic. Accordingly, the plaintiff is entitled to avail herself of § 52-592, as the procedural history of Mercado I does not reveal serious misconduct or a series of cumulative transgressions.
CONCLUSION
Based on the foregoing, the defendant failed to meet her burden that she is entitled to judgment as a matter of law. The plaintiff's counsel's submission of evidence demonstrating that his noncompliance was not egregious but rather was a product of excusable neglect, creates a genuine issue of material fact as to whether the plaintiff can establish that the disciplinary nonsuit in Mercado I was a matter of form. Accordingly, the court therefore denies the defendant's motion.