Lina Kung et al. v. Charles Deng et al. (2011)

MEMORANDUM OF DECISION

The plaintiffs, Lina Kung and Ngan–Qui Fung, filed a motion to open judgment, pursuant to General Statutes § 52–212(a), on January 6, 2011.   The defendants, Charles Deng, Donald Gallant and Dawn Tosti, filed objections to the plaintiff's motion.   The plaintiffs' action against the defendants, was dismissed by the court, Devine, J., on September 7, 2010.   The court dismissed this action because the plaintiffs failed to produce medical records by July 31, 2010, pursuant to a June 9, 2010 court order.

“A motion to open and vacate a judgment ․ is addressed to the [trial] court's discretion ․” (Internal quotation marks omitted.)  Reiner, Reiner & Bendett, P.C. v. Cadle Co., 278 Conn. 92, 107, 897 A.2d 58 (2006).   “To prevail on a motion to open, the movant has the burden of showing that good cause exists.”   Brandage v. Administrator, Unemployment Compensation Act, Superior Court, judicial district of Waterbury.   Docket No. CV 08 4018201 (November 19, 2009, Cutsumpas, J.).   Thus, “[t]he plaintiff must establish that a good cause of action, the nature of which must be set forth, existed when the judgment of nonsuit was rendered, and that the plaintiff was prevented from prosecuting it because of mistake, accident or other reasonable cause.”   Biro v. Hill, 231 Conn. 462, 467, 650 A.2d 541 (1994).

“The superior courts have frequently denied motions to open judgment where nonsuit was granted because of the plaintiff's failure to respond to discovery requests in a timely fashion, finding that such failure was not due to ‘mistake, accident or other reasonable cause.’  ․ In Cruz v. National Associated Properties, Inc., Superior Court, judicial district of New Haven, Docket No. CV 05 5000411 (July 20, 2007, Lager, J.), after failing to comply with discovery requests, plaintiff's counsel claimed that the requested documents were irrelevant to the proceedings.   The court determined that counsel ‘could not choose to unilaterally disregard the court's order to provide proper discovery compliance,’ and sustained the defendant's objection to the plaintiff's motion to open a judgment of nonsuit.  Id.;  see also Fleischer v. Cerino, Superior Court, judicial district of Ansonia–Milford, Docket No. CV 03 081462 (August 20, 2004, Ronan, J.T.R.) (denying motion to reopen judgment of nonsuit despite plaintiff's eventual substantial compliance with discovery, because plaintiff's noncompliance over a twelve-month period was not due to mistake, accident or other reasonable cause);  Weinstock v. Jarmosko, Superior Court, judicial district of Hartford, Docket No. 33 54 11 (July 10, 1990, Maloney, J.) (2 Conn. L. Rptr. 74, 74) (denying motion to set aside dismissal where plaintiff repeatedly failed to comply with discovery orders over a seven-month period, despite warnings that such failure would result in dismissal).”   Wilson v. Lowes Home Centers, Inc., Superior Court, judicial district of New Haven, CV 04 4004807 (November 7, 2007, Holden, J.) (sustaining defendant's objection to the motion to open judgment).

In the present case, the court is satisfied that the plaintiffs have failed to meet their burden of demonstrating that they were prevented from prosecuting this action because of mistake, accident or other reasonable cause.   Moreover, the court is persuaded by the line of Superior Court decisions that have denied motions to open judgment where nonsuit was granted because of the plaintiffs' failure to respond to discovery requests in a timely fashion.

As argued by the defendants at the hearing on the motion to dismiss, the parties had several pretrials with specific orders pertaining to the production of medical records with orders dated March 24, 2010 and June 9, 2010.   The defendants are prejudiced in their defense of this matter without compliance of discovery.   The case was dismissed after clear and concise orders were issued by the court as to the appropriate sanctions for failure to disclose and production of the medical records sought.

Therefore, in its discretion, the court denies the plaintiffs' motion to open judgment and sustains the defendants' objection.

Devine, J.

Devine, James J., J.