ZINIEWICZ v. POLESZCZUK, No. CV02 07 70 15S (Feb. 27, 2002)

LIDIA ZINIEWICZ v. BARBARA POLESZCZUK.

2002 Ct. Sup. 2517
No. CV02 07 70 15SConnecticut Superior Court, Judicial District of Ansonia-Milford at Milford
February 27, 2002

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION
MORAN, JUDGE.

On December 16, 1983, the plaintiff, Lidia Ziniewicz, lent her son and then daughter-in-law, the defendant, Barbara Poleszczuk, the sum often thousand dollars. The loan was evidenced by a promissory note payable on demand. No payments were made on the note and demand for payment was not made by the plaintiff until January 5, 2002. On January 29, 2002 the plaintiff brought this action to recover the sum due under the note. The plaintiff requests a prejudgment attachment of real property owned by the defendant to secure the sum claimed due under the note.

General Statutes § 42a-3-118 (b) provides that “if demand for payment is made to the maker of a note payable on demand, an action to enforce the obligation of a party to pay the note must be commenced within six years after the demand.” This action was commenced only a few weeks after demand for payment was made by the plaintiff, so clearly this action is within the six year statute of limitations period required under the first portion of the statute. The statute, however, further provides that “[i]f no demand for payment is made to the maker, an action to enforce the note is barred if neither principal nor interest on the note has been paid for a continuous period of ten years.” The statute, therefore, requires that either demand or an action on the note must occur within ten years of the last payment, if any.[1] When no payment at all is made on a demand note, an action must be commenced within ten years of its making.[2]

In this case, neither demand for payment was made, not an action brought on the note, until more than eighteen years of nonpayment had passed. The action is, therefore, time barred by the limitations period of General Statutes § 42a-3-118 (b). The court finds that the plaintiff has not shown probable cause that a judgment will be rendered in this matter in her favor. General Statutes § 52-278d (a). The prejudgment attachment sought is denied. CT Page 2518

MORAN, J.

[1] See generally Republic Credit v. Northeast Modular Homes, Superior Court, judicial district of New Haven, Docket No. 432994 (April 18, 2001, Jones, J.); Republic Credit Corp. v. McCarty, Superior Court, judicial district of Stamford / Norwalk at Norwalk, Docket No. 175412 (April 9, 2001, Lewis, J.).

[2] The Uniform Commercial Code Comment to the statute provides that, “[t]he second sentence of subsection (b) bars an action to enforce a demand note if no demand has been made on the note and no payment of interest or principal has been made for a continuous period of 10 years. This covers the case of a note that does not bear interest or a case in which interest due on the note has not been paid. This kind of case is likely to be a family transaction in which a failure to demand payment may indicate that the holder did not intend to enforce the obligation but neglected to destroy the note. A limitations period that bars stale claims in this kind of case is appropriate if the period is relatively long.”