Opinion
No. CV 00 0179069
May 12, 2003
MEMORANDUM OF DECISION
This is a personal injury action involving the plaintiff, William Olmstead, a pedestrian, and a bus driven by the defendant, Wafter M. Purvis, and owned by the defendant, Laidlaw Transit, Inc., in which the plaintiff claims he was struck by the bus on Ely Avenue in Norwalk on June 18, 1996. The plaintiff brought his first original action (Docket No. CV 97 0158219) against these defendants on March 21, 1997. This action was dismissed on June 19, 1998, under the so-called dormancy program for lack of "diligence." Practice Book § 251, now Practice Book § 14-3. On March 24, 1999, in response to a motion by the plaintiff to "reopen," the court, Karazin, J., granted the motion without further comment or conditions.
Practice Book § 14-3(a) provides in relevant part that "if a party shall fail to prosecute an action with reasonable diligence, the judicial authority may . . . render a judgment dismissing the action . . ."
On June 18, 1999, the case was again dismissed for dormancy, but this time, on July 16, 1999, the court, Karazin J., denied the plaintiff's second motion to reopen. On June 16, 2000, the plaintiff commenced the present action pursuant to General Statutes § 52-592 (a), the accidental failure of suit statute. This statute was analyzed in detail in Ruddock v. Burrowes, 243 Conn. 569, 706 A.2d 967 (1998), which makes two points relevant to this case, viz., that the statute "is remedial in nature and, therefore, warrants a broad construction"; id., 575; and that a dismissal pursuant to Practice Book § 251 [now Practice Book § 14-3] can be deemed a matter of "form" within the scope of § 52-592 (a). Ruddock v. Burrowes, supra, 243 Conn. 576.
In denying this second motion to reopen the dormancy dismissal, Judge Karazin wrote: "In motion #103 I opened the previous dismissal on 3/24/99 for the exact reason yet nothing has [been] done to have the motion heard in 6 months."
General Statutes § 52-592 (a) provides in relevant part that if an action has failed "to be tried on its merits" for a variety of reasons including "any matter of form," or the entry of a "nonsuit," the plaintiff may commence a new action "for the same cause at any time within one year after the determination of the original action . . ."
Pursuant to Practice Book § 17-44 et seq., the defendants have filed motion #106 seeking summary judgment (law short calendar, 1/27/03, column 6, position 53) on the basis that the one-year time period during which the plaintiff could commence a new suit under the accidental failure of suit statute had expired. The motion is premised on the contention that the one-year period began on the date when the original suit was first dismissed, that is, June 19, 1998, even though the case was subsequently reopened. The plaintiff argues, however, that because the first dismissal was vacated or set aside, the second dismissal on June 18, 1999 is the proper date from which to start measuring the one-year maximum time period under General Statutes § 52-592 (a) for commencing a new action. If the plaintiff is correct, the second suit, which commenced on June 16, 2000, was brought within the one-year time period of the accidental failure of suit statute. The court agrees with the plaintiff and, hence, the defendants' motion for summary judgment is denied.
The meaning of the phrase in General Statutes § 52-592 (a), "within one year after the determination of the original action," is the issue presented by the defendants' motion for summary judgment. The defendants argue that the order of June 16, 1999, "clearly reinstates the original Judgment of Dismissal entered on 6-18-98." The defendants cite Connecticut National Bank v. Great Neck Development Co., 215 Conn. 143, 574 A.2d 1298 (1990), as authority for this proposition.
Although Connecticut National Bank v. Great Neck Development Co., supra, 215 Conn. 143, involved setting aside a dismissal pursuant to Practice Book § 17-4, not commencing a new suit under the accidental failure of suit statute, the procedural history is similar to the present case. "On August 11, 1987, the plaintiff, Connecticut National Bank, began this action against the defendants Great Neck Development Company, Inc. (Great Neck), and Joseph Owen, seeking sums due on two promissory notes. On June 17, 1988, the trial court dismissed the action for failure to prosecute with due diligence. On August 31, 1988, within four months of the dismissal, the plaintiff filed a motion to open the judgment of dismissal. On September 16, 1988, the trial court, Fracasse, J., granted the motion `on [the] condition (that the] pleadings are closed and [the] case is claimed to [the] trial list by 11-1-88.' The pleadings were not closed until April 26, 1989.
"On January 10, 1989, the plaintiff filed a further motion to set aside the judgment of dismissal `entered by the court on November 1, 1988 pursuant to its order of September 1[6], 1988.' On February 8, 1989, despite the defendants' objection that the earlier conditions remained outstanding, the trial court, O'Neill, J., granted the motion.
"On September 14, 1989, the trial court, Mulcahy, J., granted the plaintiff's motion for summary judgment." Connecticut National Bank v. Great Neck Development Co., supra, 215 Conn. 144-45.
The Supreme Court held that the date of the original dismissal is not the controlling date, as "[t]here is nothing in the court record here, however, disclosing a reinstatement of the original judgment of dismissal. Neither the order originally setting aside the judgment of dismissal nor any subsequent court order discloses such an occurrence." Id., 147. This is equally true in the present case because Judge Karazin simply opened the original case by granting the motion without any conditions. It is true that in denying the second motion to reopen a subsequent dismissal, there was a reference by the court to the plaintiff having failed to do anything to close the pleadings and claim the matter for the trial list, but there was no attempt to reinstate the original dismissal of June 19, 1998.
Moreover, the Supreme Court explained that "[e]ven had the original judgment been reinstated, its effective date would have been November 1, 1988, and not the date it was first rendered. After a motion for opening a judgment is granted, the case stands as though no judgment was rendered. Thus, the rendering of a second judgment of dismissal for failure to meet the earlier conditions would stand as of the date of its reentry." (Internal quotation marks omitted.) Connecticut National Bank v. Great Neck Development Company, supra, 215 Conn. 147. Thus, the date for the commencement of the one-year period in the present case is June 18, 1999, not June 19, 1998, when the original action was first dismissed. June 18, 1999 is the date on which the one-year time limitation of General Statutes § 52-592 began to run, and this present action brought under that statute was timely filed. The defendants' motion for summary judgment dismissing this action is therefore denied.
So Ordered.
Dated at Stamford, Connecticut, this 12th day of May 2003.
William B. Lewis, Judge