No. CV02 038 95 10
June 25, 2003
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This is the plaintiff, Pauline Minkowski's, second action concerning an alleged motor vehicle accident that occurred on February 8, 1999. The original action was brought against three defendants: Matthew Mirsky, who was operating the motor vehicle with which the plaintiff collided and; Robert Sarosi and the Chimney Store, Inc., the two owners of that motor vehicle. The defendants are residents of or incorporated in the state of New York. In the original action, the plaintiff properly served process on the commissioner of motor vehicles pursuant to General Statutes § 52-62. Through clerical error, the plaintiff placed incorrect addresses for the defendants Sarosi and Mirsky on the summons page. Accordingly, these defendants did not receive certified copies of the writ, summons and complaint, which is required under subsection § 52-62 (c). See footnote 1 of this decision. Sarosi and Mirsky filed a motion to dismiss which was granted by the court, Skolnick, J., because of insufficient service.
General Statutes § 52-62 provides in relevant part: "Any nonresident of this state who causes a motor vehicle to be used or operated upon any public highway or elsewhere in this state shall be deemed to have appointed the Commissioner of Motor Vehicles as his CT Page 7547-ex attorney and to have agreed that any process in any civil action brought against him on account of any claim for damages resulting from the alleged negligence of the nonresident or his agent or servant in the use or operation of any motor vehicle upon any public highway or elsewhere in this state may be served upon the commissioner and shall have the same validity as if served upon the nonresident personally . . . Process in such a civil action against a nonresident shall be served by the officer to whom the process is directed upon the Commissioner of Motor Vehicles by leaving with or at the office of the commissioner, at least twelve days before the return day of the process, a true and attested copy thereof, and by sending to the defendant or his administrator, executor or other legal representative, by registered or certified mail, postage prepaid, a like true and attested copy, with an endorsement thereon of the service upon the commissioner, addressed to the defendant or representative at his last-known address."
The plaintiff commenced this second action against Sarosi and Mirsky pursuant to General Statutes § 52-592, et seq., the accidental failure of suit statute. Sarosi and Mirsky now move for summary judgment arguing that § 52-592 is inapplicable in this case because, in the original action, the suit was never "commenced," and the action is now barred by the statute of limitations. The plaintiff asserts that the original action was commenced when service was made upon the commission of motor vehicles, and that § 52-592 permits her to bring this second action because the original suit was dismissed for the accidental insufficiency of service.
General Statutes § 52-592 provides in pertinent part: "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." (Emphasis added.)
Standard of Review
"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 CT Page 7547-ev 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.) Gaynor v. Payne, 261 Conn. 585, 590, 804 A.2d 170 (2002). Summary judgment is appropriate to challenge the statute of limitations; see Burns v. Hartford Hospital, 192 Conn. 451, 472 A.2d 1257 (1984); and is the appropriate vehicle to challenge the applicability of the accidental failure of suit statute. Biro v. Sidley Austin, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV93 132616 (July 12, 1994, Dean, J.) ( 12 Conn. L. Rptr. 130, 131 n. 1).
The material facts are not contested. The fundamental dispute in this case concerns the applicability of the General Statutes § 52-592. Specifically, the issue is whether the original suit was "commenced," and whether the attempted service on Sarosi and Mirsky was "insufficient service . . . due to unavoidable accident." General Statutes § 52-592. The issue of whether § 52-592 is applicable to this case is a legal issue to be resolved by the court and may therefore be raised through a motion for summary judgment. See Gillum v. Yale University, 62 Conn. App. 775, 785, 773 A.2d 986, cert. denied, 256 Conn. 929, 776 A.2d 1146 (2001).
In its decision on Sarosi and Mirsky's motion to dismiss in the original action, the court, Skolnick, J., determined that neither Sarosi nor Mirsky were served. Minkowski v. Mirsky, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 01 381557 (November 8, 2001, Skolnick J.). Accordingly, the court found that it lacked in personam jurisdiction over the defendants. Id. One criteria that triggers the application of § 52-592 is the lack of jurisdiction. See footnote 2 of this decision. Both Sarosi and Mirsky are out-of-state residents, and therefore, "deemed to have appointed the Commissioner of Motor Vehicles as [their] attorney to accept service of process." General Statutes § 52-62 (a). Moreover, serving the process upon the commissioner of motor vehicles "shall have the same validity as if served upon the nonresident personally." General Statutes § 52-62 (a). In Connecticut, an action is commenced when the writ, summons and complaint are served upon the defendant. Hillman v. Greenwich, 217 Conn. 520, 527, 587 A.2d 99 (1991). Here, the commissioner, standing in the shoes of the defendants, was properly served. Accordingly, the action was commenced for the purposes of § 52-592.
Furthermore, our Supreme Court has consistently has held that our CT Page 7547-ew accidental failure of suit statute "is remedial and is to be liberally interpreted." Ross Realty Corp. v. Surkis, 163 Conn. 388, 393, 311 A.2d 74 (1972); accord Baker v. Baningoso, 134 Conn. 382, 387, 58 A.2d 5 (1948); Johnston v. Sikes, 56 Conn. 589, 596 (1888) (a very liberal construction is given to saving statute). In a similar case, Flynn v. Citarella, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 98 262918 (November 30, 1998, Levine, G., J.) ( 23 Conn. L. Rptr. 206, 206-07), the plaintiff's original action was dismissed for want of in personam jurisdiction. As in this case, the plaintiff had properly served the commissioner of motor vehicles, however, failed to send copies of the process to the out-of-state defendants, and therefore, the case was dismissed. The plaintiff then recommenced the action under the accidental failure of suit statute, § 52-592. In response, the defendant filed a motion for summary judgment claiming that § 52-592 was inapplicable and that the action was barred by the statute of limitation. The court, Levine, G., J., citing our Supreme Court's "mandate for liberal construction" of § 52-592, denied the defendant's motion for summary judgment finding that § 52-592 allows a party to reclaim an action, dismissed for an insufficient attempt of service under the motor vehicle service statute. The same result was reached in O'Connor v. Storm, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 87 023331 (March 14, 1988, Nash, J.) ( 3 C.S.C.R. 349, 349-50), where the court held that a case dismissed due to incorrect service under the motor vehicle service statute can be brought again pursuant to § 52-592.
In this case, the plaintiff accidently mailed Sarosi's and Mirsky's service of process to an incorrect address. While perhaps, with greater vigilance, such a mistake could have been prevented, some human error, such as this, is not always avoidable. Nonetheless, the plaintiff's failure to send a copy of the writ, summons and complaint to Sarosi and Mirsky at their correct addresses caused insufficient service of process. The service of process was not, however, entirely absent because the commissioner of motor vehicles was properly serviced. Accordingly, the plaintiff may pursue this action pursuant to § 52-592.
For the above reasons the defendants' Motion for Summary Judgment is denied.