Frank Piscatello, Jr. v. Beacon Hill Condominium Association, Inc. et al. (2011)

MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION FOR ARTICULATION

The defendant has moved the court to articulate the basis for its denial of the defendant's motion for summary judgment in which the defendant argued that the plaintiff was not entitled to the benefit of the accidental failure of suit provisions of § 52–592(a), C.G.S.

§ 52–592(a) provides, in relevant part, “If any action commenced within the time limited by law, has failed ․ to be tried on the merits because of insufficient service or return of the writ due to unavoidable accident OR the default or neglect of the officer to whom it was committed ․ the plaintiff ․ may commence a new action ․ for the same cause at any time within one year after the determination of the original action ․” (Emphasis added.)   The unavoidable accident can be on the part of someone other than the officer to whom the writ was committed.   In many cases the writ is not committed to the officer for return.   That can be and often is a responsibility retained by the attorney who assigned to the marshal the responsibility for only serving the writ, not the duty to return it to court.

The defendant has interpreted provisions of the statute and the facts in this case as though the marshal —and only the marshal—must be the party who is responsible for the “insufficient return of the writ” in order for the statute to be applicable.   That is not what the statute provides.

It cites Serrano v. Zwanch as illustrative of that ruling.   However, in Serrano, it was found that the sheriff was to return the writ to court having been told to do so.   Those are not the facts in this case.

In the instant case, the plaintiff's counsel has stated that he—not the marshal—failed through human error to return the writ to court.

In its brief in support of the motion for summary judgment, the defendant notes that there are no appellate level decisions in this state that have interpreted the accidental failure of suit statute where the original complaint has never been returned to court.   The defendant concedes that our trial courts have allowed actions to be saved under the statute in situations where the writ was not returned to court.   It goes on to argue that in such cases, there must still be an unavoidable accident or mistake on the part of the officer.   This court disagrees with the defendant's contention that the error or mistake must be that of the officer in order to get the benefit of the saving statute.

The defendant also cites a case wherein the plaintiff “voluntarily” decided not to return this writ and summons to court.   Those are not the facts in this case.

In this case, the officer did not fail or neglect to retain the process to court.   Plaintiff's counsel states that it was his mistake.

The writ in the instant case was properly served and returned to court.

For the foregoing reasons, the court denied the defendant's motion for summary judgment on July 21, 2011.

BY THE COURT,

JOSEPH W. DOHERTY, JUDGE

Doherty, Joseph W., J.