Delvin Keene v. Larry Livingston (2010)

MEMORANDUM OF DECISION ON MOTION TO REOPEN JUDGMENT

In this matter a default judgment was entered against the defendant Larry Livingston in 2004.   In August 2007 Mr. Livingston filed a motion to reopen judgment pursuant to § 52-212 of the general statutes.   The vehicle for advancing the statutory right is Practice Book § 17-43.

Both statute and practice book state that the party seeking to reopen a judgment “shall state in general terms the nature of the claim or defense and shall particularly set forth the reason why the plaintiff or defendant failed to appear.”   The foregoing must be stated under oath.

The affidavit submitted by Mr. Livingston states he had been residing at 28 Norfolk Street, West Haven since November 1999 and did not receive the summons or complaint in this matter.   It could have been more specific but the court takes it to mean that on the date service was made he was living at the West Haven address not the 518 Winchester Avenue, New Haven address where the plaintiff's marshal said he made abode service on April 28, 2003.   There is a reference to a Justin Livingston who it is claimed never worked for or represented the defendant on the date of the incident which involves a suit by the plaintiff for injuries he allegedly received in a cafe owned and operated by the defendant as a result of an assault.   There is no reference to a possible defense in the affidavit but this self-represented litigant did set forth a defense in the motion itself which was not submitted, however, under oath.

An objection to the motion was filed by the plaintiff who attached an affidavit of the marshal who made abode service.   He states under oath that:

(2) I spoke to his neighbor, who verified that he occupied the apartment in the building and directed me to his door (at Winchester Avenue address).

(3) I personally went to the Department of Liquor Control of the State of Connecticut, in Hartford, CT, and confirmed with said office that Larry Livingston stated on his application for a Liquor Permit that his residence address listed was 518-520 Winchester Avenue, New Haven, CT.

The defendant entered an appearance on August 20, 2007 in which he listed his “mailing address” as per the standard appearance form as 28 Norfolk Street, West Haven, Connecticut.   The objection to the defendant's motion was filed June 18, 2010.   On that motion this court set the matter down for oral argument on August 2, 2010 which was later apparently changed to August 16, 2010.

The court denies the motion to reopen for the following reasons:

(1) The Practice Book requires that the defendant seeking to reopen the judgment state under oath that he/she had a good defense to the action.   As noted the motion does state a defense but it is not under oath and the affidavit attached to the motion does not state there is a good defense to the action.

(2) Most of the documents attached to the motion to reopen merely state what is a billing address in West Haven, notices sent to that address listing the defendant's name and that of a Mary Hamilton, a deed transferring the property to him and the woman.   None of the documents directly verify or support an assertion that the defendant actually lived at that address.   Only one document, a statutory form power of attorney, can be read as a statement by the defendant that he lives at the West Haven address.

(3) The sheriff's affidavit offers convincing proof that at the time abode service was made the defendant lived at the Winchester Avenue address in New Haven.

(4) It is interesting to note that to enforce the judgment the plaintiff's attorney filed a petition to examine judgment debtor served on the defendant, listing the 518 Winchester Avenue, New Haven address.   The petition directed any proper officer to serve the petition presumably at the Winchester Avenue address.   A court document indicates on 8/13/07 the defendant failed to appear and a capias was issued.   However, the capias was vacated on 8/20/07 as defendant appeared and was sworn on the latter date.

(5) The court procured a copy of the notice sent to the defendant notifying him of a hearing on his motion to reopen on August 16, 2010.   The document listed the appearance of this self-represented party, identifying him as:  Livingston, Larry, 28 Norfolk Street, West Haven, Connecticut 06516.

On August 16, 2010 Mr. Livingston did not appear in court.

Based on the foregoing the motion to reopen is denied.

Thomas J. Corradino

Judge Trial Referee

Corradino, Thomas J., J.T.R.