Opinion
No. FST CV05 4005667
August 18, 2006
MEMORANDUM OF DECISION RE SUMMARY JUDGMENT
The pro se plaintiff, Anthony Santone, pursuant to General Statutes § 52-592, the accidental failure of suit statute, commenced an action on June 16, 2005, against the defendants, Huntington Condominium Association, Huntington Condominium Association, Inc., Huntington Condominium Association-Bridgeport, Inc. and Consolidated Management Services, Inc. with service of a writ and summons and seven-count complaint. On August 8, 2005, the plaintiff filed an amended nine-count complaint.
General Statutes § 52-592, in relevant part, provides: "(a) 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 the action has been otherwise avoided or defeated . . . for any matter of form; . . . the plaintiff . . . 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."
The defendants filed motion #112 for summary judgment on October 19, 2005, on the grounds that the statute of limitations for the plaintiff's claim had run and that the plaintiff cannot avail himself of the accidental failure of suit statute. On November 1, 2005, the plaintiff filed an objection to the defendants' motion. This court heard oral arguments on the defendants' motion on May 15, 2006.
"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." (Citation omitted; internal quotation marks omitted.) Morris v. Congdon, 277 Conn. 565, 568-69, 893 A.2d 413 (2006).
"It is well established that, [i]n seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact . . . The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . Once the moving party has met its burden . . . the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Socha v. Bordeau, 277 Conn. 579, 585-86, 893 A.2d 422 (2006).
"Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact . . . a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue." (Internal quotation marks omitted.) Fuchs v. Allstate Ins. Co., 96 Conn.App. 284, 289, 899 A.2d 284 (2006). "The existence of the genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence." (Internal quotation marks omitted.) DeCorso v. Watchtower Bible Tract Society of New York, Inc., 78 Conn.App. 865, 871, 829 A.2d 38, cert. denied, 266 Conn. 931, 837 A.2d 805 (2003).
"[B]efore a document may be considered by the court in support of [or opposition to] a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be . . . Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be." (Citation omitted; internal quotation marks omitted.) New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005). "[A] plaintiff's conclusory statements, in [an] affidavit and elsewhere . . . do not constitute evidence sufficient to establish the existence of disputed material facts." Gupta v. New Britain General Hospital, 239 Conn. 574, 583, 687 A.2d 111 (1996).
In the present case, the defendants argue in support of their motion for summary judgment that the plaintiff's action is barred by the statute of limitations and because no mistake, inadvertence, or excusable neglect prevented the defendant from litigating his prior 1997 lawsuit, the accidental failure of suit statute, § 52-592, does not apply. The defendants argue that because "the plaintiff has a lengthy history of delay and neglect, his latest actions should not be deemed excusable so as to invoke the accidental failure of suit statute."
The plaintiff counters that his ill health prevented him from attending the pretrial conference on August 9, 2004, which resulted in his case being dismissed without being tried on the merits. The plaintiff claims that there is a material issue of fact that should preclude summary judgment, that is, the issue of whether he was ill. The plaintiff asserts that his illness precluded the furtherance of his suit, that his illness caused his absence from the August 9, 2004 hearing, and that his suit was dismissed directly as a result of his absence from that hearing. The plaintiff maintains that this situation allows him to proceed under § 52-592.
"Deemed a saving statute, § 52-592 enables plaintiffs to bring anew causes of actions despite the expiration of the applicable statute of limitations." (Internal quotation marks omitted.) Lind-Larsen v. Fleet National Bank of Connecticut, 84 Conn.App. 1, 9-10, 852 A.2d 799, cert. denied, 271 Conn. 940, 861 A.2d 514 (2004). "[B]y its plain language, [§ 52-592] is designed to prevent a miscarriage of justice if the [plaintiff fails] to get a proper day in court due to the various enumerated procedural problems . . . It was adopted to avoid hardships arising from an unbending enforcement of limitation statutes . . . Its purpose is to aid the diligent suitor . . . Its broad and liberal purpose is not to be frittered away by any narrow construction." (Internal quotation marks omitted.) Davis v. Family Dollar Store, 78 Conn.App. 235, 240, 826 A.2d 262 (2003), appeal dismissed, 271 Conn. 655, 859 A.2d 25 (2004).
"[Section] 52-592(a) does not [however] guarantee that all cases will receive adjudication on their merits. Construction of the statute should not be so liberal as to render a statute of limitations for bringing a cause of action `virtually meaningless.'" Gillum v. Yale University, 62 Conn.App. 775, 786, 773 A.2d 986, cert. denied 256 Conn. 929, 776 A.2d 1146 (2001). Practice Book § 14-3(a) provides that "[i]f a party shall fail to prosecute an action with reasonable diligence, the judicial authority may, after hearing, on motion by any party to the action pursuant to [Practice Book] Section 11-1, or on its own motion, render a judgment dismissing the action with costs." In Ruddock v. Burrowes, 243 Conn. 569, 570-71, 706 A.2d 967 (1998), the Supreme Court noted that a dismissal based on a party's failure to attend a scheduled pretrial conference is a disciplinary dismissal, regardless of whether the absence was the result of mistake, inadvertence or excusable neglect. The court further stated: "Disciplinary dismissals do not, in all cases, demonstrate the occurrence of misconduct so egregious as to bar recourse to § 52-592 . . . Whether the statute applies cannot be decided in a factual vacuum. To enable a plaintiff to meet the burden of establishing the right to avail himself . . . of the statute, 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." (Citation omitted.) Id., 576-77.
In support of their motion for summary judgment, the defendants have submitted a number of certified transcripts of court proceedings in the plaintiff's original action. Defendants' Exhibit A is the transcript of a proceeding conducted by the court, Dewey, J., on March 18, 2004, at which time Judge Dewey questioned the plaintiff about the lack of activity in the file. Judge Dewey noted that the case was a 1997 case that should have been tried by 2001. When the plaintiff stated that his ill health for the past few years contributed to the lack of progress in the action, Judge Dewey asked whether there was a notice in the file that the plaintiff was ill. The plaintiff stated that there was not. Over the plaintiff's objection, Judge Dewey set a scheduling order and instructed the plaintiff: "If you get medical authority as to why you cannot continue, you are going to have to have a doctor come in and indicate why the scheduling order cannot be complied with." The court further instructed: "Sir, I'm setting the scheduling order. If you have a problem with it in the future file a motion."
Exhibit B is a transcript of a hearing held before the court, Rush, J., on July 19, 2004, on the defendants' motion to nonsuit the plaintiff for his failure to comply with Judge Dewey's order, specifically, that the plaintiff was to respond to the defendants' interrogatories by April 30, 2004. Because Judge Rush did not have a transcript of the proceeding before Judge Dewey, and because it appeared to him that there was an outstanding motion for a protective order relative to the interrogatories, Judge Rush continued his hearing to August 5, 2004, to provide the plaintiff an opportunity to prove to the court his contentions that responding to the outstanding interrogatories was a burden because he had previously responded to the same interrogatories.
Judge Rush noted that if he was convinced that Judge Dewey's order was that the plaintiff had to respond to the defendants' interrogatories by April 30, 2004, he would have entered a non-suit at that time. Notwithstanding the plaintiff's repeated assertions that he would be unable to respond to the interrogatories by the time established by Judge Rush, the judge observed: "[W]hat I have now are some interrogatories that were propounded on July 29, 2002. That is just about two years ago. A few weeks short of that. The only objection to those were that [the plaintiff] has answered the same questions before, which has now been withdrawn. There was also a request for 60 days to answer it, but that's long since gone also . . . And I expect counsel [for the defendants] to have those [answers] before the hearing and not to be delivered to her at the hearing. And I expect those to be fully complied with on August 5, and if they're not, you stand the risk of having a nonsuit."
The defendants' Exhibit D is a certified copy of the transcript of a court-ordered pretrial hearing conducted by Judge Wolven on August 9, 2004. The defendant did not appear at the hearing and in response to the judge's inquiry as to whether defense counsel had contact with the plaintiff, defense counsel responded:
"No, your Honor. I can tell you that Thursday we were in front of Judge Rush on another issue on this case, and he didn't show up for that either." Judge Wolven then ruled as follows: "Given Mr. Santone's failure to abide by the court order, the court will dismiss the case."
The plaintiff supports his opposition to the defendants' motion for summary judgment with two of his own affidavits, one dated November 1, 2005, the other, November 30, 2005. The plaintiff has also submitted several copies of emergency room reports. These reports, however, are not authenticated by certification or affidavit; thus, this court may not consider them in determining whether the plaintiff has met his burden to prove the existence of a genuine issue of material fact. See New Haven v. Pantani, supra.
The plaintiff avers in both of his affidavits "[t]hat as of August 9, 2004, and for a long time prior thereto the plaintiff suffered from serious illness, and was under treatment for said illnesses and disease" and that he "was not able to attend a pretrial . . . scheduled on August 9, 2004, as a result of a sudden emergency related to his illness and disease." In his affidavit dated November 30, he further avers that he "telephoned the Superior Court office of the clerk to notify the Court that [he] could not attend the pretrial settlement conference due to illness."
The plaintiff's averments that he was too ill to attend the court-ordered pretrial are self-serving, conclusory statements and not the concrete evidence necessary to demonstrate the existence of the genuine issue of material fact claimed to exist by the plaintiff, that is, that he was too ill to attend the pretrial. The documentary evidence submitted by the defendants demonstrates that the plaintiff repeatedly raised his alleged illness as the explanation for his failure to move his original action forward. Notwithstanding an order by Judge Dewey on March 18, 2004, some four months prior to the dismissal of this action, that he provide medical authority relative to his illness, the plaintiff failed to provide such authority. Concrete medical evidence was not provided in the original action nor has it been provided in the present action.
The defendants in the present case have met their burden to prove that no genuine issue of material fact exists regarding whether the dismissal of plaintiff's original action was a matter of form, and thus the plaintiff is precluded from bringing an action pursuant to General Statutes § 52-592. Accordingly, the defendants' motion for summary judgment is granted.
So Ordered.