Opinion
No. CV07-5011391S
September 25, 2007
MEMORANDUM OF DECISION
This is a Motion to Dismiss. The plaintiff brought a four-count complaint in accordance with C.G.S. § 52-592, Accidental Failure of Suit. The defendant moved to dismiss the complaint asserting that the court lacks subject matter jurisdiction as the claim is barred by the statute of limitations.
The defendants filed a memorandum of law and an affidavit in support of its motion. The plaintiff did not file an objection to the motion, any memorandum of law, affidavits or any response to the Motion to Dismiss.
The plaintiff has alleged the following facts: 1) on January 3, 1996, Mary Manginelli obtained a judgment against the defendant Richard D'Antonio, Sr. in the amount of $30,000.00; 2) On January 25, 1996, she recorded a judgment lien on the land records; 3) On June 15, 1998, she entered a nursing home; 4) On August 4, 1998, Mary Manginelli was infirm and incapacitated from attending to her business affairs properly; 5) On August 4, 1998, Richard D'Antonio secured a release of the judgment lien by himself or through his agent, Allen D'Antonio (Mary Manginelli's grandson); 6) On March 9, 2004, the property was sold to the defendants, Nancy Stevenson and Robert Moniello; and 7) On April 13, 2005, the plaintiff was appointed Administratrix for the Estate of Mary Manginelli.
The plaintiff asserts that the release was invalid because Richard D'Antonio obtained it without consideration, by fraud, by undue influence and Mary Manginelli lacked the mental capacity to realize what she was signing.
The defendants have asserted that the present action is the same cause of action as the first case which was commenced on August 26, 2005. One of the defendants in that first case had filed discovery requests which the plaintiff failed to answer timely. That defendant then filed a Motion for Sanctions and requested a non-suit be entered against the plaintiff. The court granted the motion and the plaintiff was non-suited on June 19th, 20th.
DISCUSSION
C.G.S. § 52-577 provides as follows: "No action founded upon a tort shall be brought but within thee years to the date of the act . . . complained of."
C.G.S. § 52-592(a) provides as follows:
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 nonsuit 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, except as provided in subsection (b) of this section, for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment.
In Gallo v. G. Fox Co., 148 Conn. 327 330 (1961) the court reiterated the meaning of the phrase "cause of action" as follows: "A cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief . . ." Bridgeport Hydraulic Co. v. Pearson, 139 Conn. 186, 197 9i A.2d 778; Viets v. Hartford, 134 Conn. 428, 434, 58 A.2d 389. The cause of action in this case is the claimed invalid release of the judgment lien on August 4, 1998 and the statute of limitations started with that act.
In this case the first action had to be brought within three years of August 4, 1998. However, the plaintiff did not commence the action by August 4, 2001, but on August 26, 2005.
Even if the plaintiffs had brought the first action under a claim with a six-year statute of limitations, it would still be untimely because it was not brought by August 4, 2004.
The statute is remedial in nature and the court must balance the need for case management against considerations of fairness in cases where parties are prevented by such things as mistake, inadvertence, excusable mistake or impossibility. Ruddock v. Brown, 243 Conn. 569, 706 A.2d 967 (1998). The plaintiff has not made such claim(s) and the first suit must be commenced in a timely fashion.
In this case the statute of limitations was a bar to the first action; therefore C.G.S. 52-592 cannot save it.
Accordingly, the Motion to Dismiss is granted.