Rose Pinchuk v. Pasquale Ciullo et al. (2010)

RULING RE PLAINTIFF'S MOTION TO REARGUE

This matter came to the court as a result of a letter dated July 23, 2010 from the plaintiff's attorney Timothy C. Moynahan on behalf of attorney Robert Keepnews, an employee of Mr. Moynahan's law firm.   The letter was generated by a succession of rulings by the court in which several motions to open a judgment of dismissal and corresponding motions to reargue were denied.   The letter requested a chambers conference to permit Mr. Moynahan to explain to the court and defendant's counsel, his and others' observation of Mr. Keepnews's mental condition which he claimed was responsible for these outcomes.   In lieu of a chambers conference the court held a hearing and permitted Mr. Moynahan, in effect to, reargue the last motion to reargue which had been denied by the court.   In addition, it afforded Mr. Moynahan an opportunity to describe to the court certain behaviors by attorney Keepnews which Mr. Moynahan claims are evidence of a “disabling mental illness.”   The court heard the parties at length and permitted the parties to file supplemental memoranda of law.   Mr. Moynahan's memorandum of law was supplemented by an affidavit provided over his own signature.

A motion to reargue is appropriate when there are new facts which had not been presented earlier.  Doyle v. Abbenante, 89 Conn.App. 658, 665 (2005).   Clearly, because attorney Keepnews denied the existence of any mental health condition he would and, indeed, could not have presented any information to the court concerning this subject in the several motions to open and corresponding motions to reargue which he filed.

The court has read the cases cited by the parties and finds that none of the trial court decisions cited are persuasive.   In fact, the court disagrees with defense counsel's reading of these cases and the propositions for which they were offered.   Furthermore, contrary to the defendant's reading of Jacquith v. Revson, 159 Conn. 427, 432 (1970), and Jacobson v. Robington, 139 Conn. 532 (1953), neither case holds that illness of counsel, per se, does not constitute reasonable cause under P.B. § 17-43 or Gen.Stat. § 52-212.

The court notes that discovery had been delinquent since at least January 2009, thus requiring the defendant to file motions to compel on March 6, 2009 and November 8, 2009.   As of the date of this court's order of dismissal in April 2010, compliance was still lacking.   It was only after the intervention of Mr. Moynahan that compliance was eventually affected on or about August 13, 2010.   Other than delay and expense, the defendant has suffered no material prejudice which the defendant has identified.

It is apparent to the court from attorney Keepnews's successive unsuccessful attempts to open the judgment of dismissal and the court's response to them that attorney Keepnews did not understand the reasons why his motions were deficient and was incapable of doing so.

Attorney Moynahan represents to the court that on or about March 23, 2010 he discovered that something was “possibly wrong” with Mr. Keepnews' mental state which he characterizes as a “disabling mental illness or disorder which prevented him from ably performing his duties.”

Relevant to Mr. Keepnews' mental health is a transcript which counsel provided the court from a hearing held on June 29, 2010 before Judge Pickard in Litchfield.   This transcript reveals that Judge Pickard detected the same symptoms as attorney Moynahan described to him relating to the condition of Mr. Keepnews' mental health.   Judge Pickard described the attorney's conduct as “floundering” and in need of a continuance of a trial management conference to allow him to “extricate, himself ․ from his floundering.” ¹

Although the negligence of a party or his counsel has never justified the opening of a judgment of dismissal, to deprive a plaintiff with a facially meritorious claim from having her day in court because of a delinquency caused by her attorney's mental condition is a grossly unfair, draconian remedy which is wholly disproportionate to the offense and contrary to the policy of the law which is to bring about a trial on the merits of the dispute whenever possible and to advance substantial justice.  Forster v. Gianopoulos, 105 Conn.App. 702 (2008).   While Mr. Keepnews' mental condition is yet unidentified and unsupported by a medical provider, the court is persuaded that it prevented Mr. Keepnews from carrying out his responsibilities to his client in a competent manner.   The court is further persuaded that both the long delay in discovery compliance and the numerous failed attempts at opening judgment are products of Mr. Keepnews' mental conditions.   Such a circumstance constitutes reasonable cause within the meaning of P.B. § 17-43 and Gen.Stat. § 52-212.

Accordingly, upon reconsideration, based upon the newly presented facts the motion to reargue is granted, the judgment of dismissal is set aside and in lieu thereof the court awards defense counsel attorneys fees which have been incurred in connection with the following:

1. the motions to compel;

2. all motions to open;

3. all motions to reargue;  including the proceeding upon which this ruling is based.

Counsel for the defendant shall file an affidavit of attorneys fees detailing the time devoted to these matters with the hourly rate for each attorney.

BY THE COURT

A. WILLIAM MOTTOLESE J.T.R.

FOOTNOTES

FN1. Floundering is defined in Webster's New World Dictionary, Sec. Ed. at 536 as follows:  “To speak or act in an awkward, confused manner with hesitation and frequent mistakes.”.  FN1. Floundering is defined in Webster's New World Dictionary, Sec. Ed. at 536 as follows:  “To speak or act in an awkward, confused manner with hesitation and frequent mistakes.”

Mottolese, A. William, J.T.R.