Opinion
No. CV 99 0424954
July 9, 2003
MEMORANDUM OF DECISION
Before the court is a motion for summary judgment filed by the third-party defendant, Monarch Tool and Manufacturing Company. Monarch moves for summary judgment on the ground that there are no material facts in dispute and it is entitled to judgment as a matter of law because the third-party plaintiff, Hacker Instruments, Inc., failed to serve the third-party complaint within the one-year statute of limitation provided in General Statutes § 52-577a (b). Resolution of the motion requires a review of the procedural history of the case.
On April 14, 1999, the plaintiff, Prital Patel, filed a two-count complaint against Hartford Hospital, School of Allied Health and Hacker. Count one is a negligence claim and is brought against the hospital and the school. Count two is a product liability claim brought against Hacker. The plaintiff alleges that she was injured while using a knife sharpener at the school where she was enrolled in the histology program. The plaintiff further alleges that Hacker manufactured the knife sharpener. In its answer and third-party complaint, however, Hacker alleges that it markets knife sharpeners.
The plaintiff alleges, and the hospital and the school admit, that the hospital controls, manages and directs the school.
On November 12, 1999, Hacker filed a request for leave to serve a third-party complaint, sounding in product liability, upon Monarch, the alleged manufacturer of the knife sharpener. The court did not rule on this request. On February 2, 2000, Hacker filed a motion to serve the third-party complaint. On June 6, 2002, the court, Blue, J., granted Hacker's motion and ordered that service be made on or before July 6, 2000, with a return date of July 18, 2000. The sheriff's return indicates that service was made upon Monarch on June 22, 2000, via certified mail, return receipt requested. On August 28, 2000, Monarch filed its answer and special defense as to the third-party complaint. By way of a special defense, Monarch asserts that the third-party complaint is barred by § 52-577a (b) because it was not served timely.
On March 19, 2002, Monarch filed a motion for summary judgment as to the third-party complaint on the ground that it is entitled to judgment as a matter of law because the third-party complaint is barred by the one-year statute of limitation set forth in § 52-577a (b). In support of its motion, Monarch filed a memorandum of law and the following exhibits: a copy of the summons, writ and complaint filed by the plaintiff and the sheriff's return (Exhibit A); a copy of the sheriff's return attesting that service of the third-party summons, writ and complaint was made upon Monarch, via certified mail (Exhibit B); and a copy of the summons, writ and complaint filed by Hacker (Exhibit C).
Although the documents submitted by Monarch in support of its motion for summary judgment are not properly authenticated, it is submitted that the court may take judicial notice of them as they are all a part of the file in the case now before the court.
On March 28, 2002, Hacker filed a memorandum of law in opposition to Monarch's motion for summary judgment and the following exhibits: a copy of the motion to serve the third-party complaint, date-stamped February 2, 2000 by the clerk's office and the June 6, 2000 order granting the motion (Exhibit A); uncertified copies of short calendar reclaim slips (Exhibit B); and a copy of a judicial notice (JNDO) indicating that the motion to implead was granted (Exhibit C).
"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 . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." (Internal quotation marks omitted.) Gould v. Mellick Sexton, 263 Conn. 140, 146, 819 A.2d 170 (2003)." "Summary judgment may be granted where the claim is barred by the statute of limitations." Doty v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996).
Monarch argues that it is entitled to summary judgment on the third-party complaint because Hacker failed to serve the third-party complaint within one year from the date the plaintiff's cause of action was returned to court in accordance with § 52-577a (b). Monarch contends that it was served on June 22, 2000, more than one year after the plaintiff's action was returned to court.
Monarch mistakenly asserts that "[t]he operative date with which to measure the one-year limitation is the `return date' on the complaint." (Monarch's Memorandum of Law in Support of its Motion for Summary Judgment, p. 5.) Pursuant to § 52-577a (b), the one-year limitation period begins to run on the date the plaintiff's product liability action "is returned to court." The date stamped by the clerk's office on the summons indicates when the complaint was "returned to court."
In opposition, Hacker argues that Monarch's motion for summary judgment should be denied because it sought permission to file the third-party complaint before the one-year statute of limitation expired, but the court did not act upon the motion until after the one-year period had passed. More specifically, Hacker argues that in accordance with General Statutes § 52-102a (a), it filed a motion for permission to serve the third-party complaint on February 2, 2000, however, the court did not grant the motion until June 6, 2000. Hacker also contends that it reclaimed the motion on two occasions in an attempt to get the court to rule on the motion. Additionally, Hacker argues that Monarch had notice of the product liability claim brought against it in the third-party complaint because the plaintiff has brought a separate product liability action against Monarch, therefore, Monarch is not prejudiced by being served after the one-year statute of limitation.
Hacker's argument that it attempted to reclaim the motion cannot be considered by the court in ruling on the motion for summary judgment because the short calendar reclaim slips filed by Hacker in opposition to the motion are not properly authenticated, nor are they a part of the contents of the file. "Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." (Internal quotation marks omitted.) Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997). Therefore the court cannot consider the short calendar reclaim slips in ruling on the motion for summary judgment.
On July 24, 2000, Hacker filed a motion to consolidate this action with Patel v. Monarch Tool Manufacturing Co., Superior Court, judicial district of New Haven, Docket No. CV 00 0437776. The court, Silbert, J., granted the motion to consolidate on August 7, 2000.
General Statutes § 52-577a (b) provides that in a products liability action "a product seller may implead any third party who is or may be liable for all or part of the claimant's claim, if such third-party defendant is served with the third-party complaint within one year from the date the cause of action brought under subsection (a) of this section is returned to court."
General Statutes § 52-102a (a) provides: "A defendant in any civil action may move the court for permission as a third-party plaintiff to serve a writ, summons and complaint upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him. The motion may be filed at any time before trial and permission may be granted by the court if, in its discretion, it deems that the granting of the motion will not unduly delay the trial of the action nor work an injustice upon the plaintiff or the party sought to be impleaded."
A review of the contents of the file now before the court and the evidence submitted by the parties in support of their respective positions reveals the following. The plaintiff's underlying action was returned to court on April 14, 1999, as evidenced by the date-stamp by the clerk's office. Pursuant to § 52-577a (b), Hacker was required to serve the third-party complaint upon Monarch by April 14, 2000. The sheriff's return indicates, however, that service of the third-party complaint was not made until June 22, 2000. It is therefore clear that the third-party complaint was not served timely.
Hacker's argument that the third-party complaint is not barred by § 52-577a (b) because, pursuant to § 52-102a (a), it moved the court for permission to serve the third-party complaint before the one-year statute of limitation had expired, but the court did not grant the motion until after the one year passed, is unavailing. This court is not bound by the June 6, 2000 order granting Hacker's motion to serve the third-party complaint because the motion was granted after the one-year statute of limitation had expired. See, e.g., Wagner v. Clark Equipment Co., 259 Conn. 114, 130-31, 788 A.2d 83 (2002) (noting that "[a] judge is not bound to follow the decisions of another judge made at an earlier stage of the proceedings").
Applying the statutory requirements of §§ 52-102a (a) and 52-577a (b) to the undisputed facts of this case, Hacker's third-party complaint was not timely served upon Monarch, and, therefore, Monarch's motion for summary judgment is granted.
Skolnick, J.