JOSEPH ABATE ET AL. v. MARTIN BROWN ET AL.

2006 Ct. Sup. 19098
No. CV-04-4001483-SConnecticut Superior Court Judicial District of Ansonia-Milford at Derby
October 17, 2006

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM RE SUMMARY JUDGMENT
JOSEPH H. SYLVESTER, JUDGE TRIAL REFEREE.

The plaintiffs were injured in a motor vehicle accident that occurred on November 13, 1999. They commenced an action against the defendants in a timely manner. A motion for non-compliance, filed by the defendants was granted on April 8, 2002. The defendants received a copy of the notice of this decision. However, counsel for the plaintiffs states in an affidavit that he never received notice of this decision. He further states that the next notice he received from the court was a notice of a status conference dated April 20, 2004. Counsel attached a copy of this notice to his affidavit. Based on this counsel for the plaintiffs filed a motion for default. It was, according to him, in response to this motion that he learned of the non-suit of April 2002. On November 11, 2004, the plaintiff instituted this cause of action pursuant to § 52-592, the accidental failure of suit statute.

The defendants have filed a motion for summary judgment and argue that present law suit is untimely because § 52-592 requires that the an action brought pursuant to this section be brought within one (1) year of the determination of the original action. The defendants’ position is therefore, that this action should have been commenced within one (1) year of the granting of the motion for non-suit or by April 8, 2003.

The case of Henriquez v. Allegre, 68 Conn.App. 238 (2002) is remarkably similar to the facts in this case. In that case the Appellate Court concluded that the failure of the plaintiff to receive timely notice of a dismissal extends the time within which the plaintiff may commence an action pursuant to § 52-592. The question for this court to decide is when did counsel receive notice of the dismissal, which triggered the one (1) year period commence within which to file a new action. This court holds that the one (1) year period was triggered when counsel for the CT Page 19099 plaintiff received defendant’s motion for default on or about April 26, 2004 (counsel for the plaintiff does not state the date this motion was received by him in his affidavit but states in the memorandum in objection for summary judgment that this motion was received on April 29, 2004). This court’s decision is guided not only by the narrow legal analysis of whether the failure of a plaintiff to receive timely notice of a dismissal extends the time within which a plaintiff may commence an action but by, as the Appellate Court stated in Henriguez, “. . . our Supreme Court’s longstanding and principled view that the policy of our law is `to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court (Internal quotations omitted.)” Coppola v. Coppola, 243 Conn. 657, 665 (1998).

Therefore, the motion for summary judgment is denied. CT Page 19100