Stacey Rich v. LLC (2012)

MEMORANDUM OF DECISION

By motion dated and filed August 30, 2012, the defendant DiNardo Auto Sales, LLC et al., moves to open the judgment entered on May 2, 2012 by the Court, (Moran, J.) after defaults entered against the defendants.   The defendant claims that he was prevented from making a defense to this action by mistake, accident or other reasonable cause and that he has a good defense to the action.

The court heard testimony from the moving party, the defendant's daughter Julie Coriano, the plaintiff, Maria Micciche and Iris Lignor.

General statutes section 52–212 and practice book section 17–43 govern motions to open default judgments.

Section 52–212 requires a party moving for the opening of a judgment to make a two part showing that:1) a good defense existed at the time an adverse judgment was rendered;  and 2) the defense was not at that time raised by reason of the mistake, accident or other reasonable cause.  In re Baby Girl B., 224 Conn. 263, 284 (1992).

The defendant, Pasquale Dinardo testified that he had a minor stroke on January 6, 2012.   He was hospitalized for three days until January 9, 2012.   He suffered what was called a brainstem ischemic stroke.   He recuperated at home for a couple weeks to regain his strength and stabilize his health.   He further testified he lives with his daughter, is not confined to the house and returned to work in a short time.   He asserts he did not work at the car dealership after his stroke and transferred the business to his daughter.   However he indicated that he went to the dealership on almost a daily basis from January 12 to April 12.   He indicates he must have received court paperwork but does not recall ever seeing it or opening the mail.   However the dealership continued to do business.

The defendant further testified on cross examination that his daughter would have opened the mail and that she did not give it to him.   He acknowledges the motion for default was granted on March 7, 2012 and the certificate of closed pleadings was on April 2, 2012, although he claims not to have seen these documents he acknowledges he was at the dealership on a daily basis.

The defendant's daughter testified that she worked at the dealership as a secretary and after her father's stroke he was tired and slurring his words while at work.   She acknowledges running the business but that she was having her own difficulties.   She testified that she does not recall seeing the court documents or opening the mail during the period of time from January to April 2012.   She said she did open the mail sometimes but doesn't remember seeing any court documents.   She does acknowledge however that she traveled to Boston with her father during that same time frame to answer to another default judgment case in federal court in Boston.

The plaintiff called Maria Micciche and she testified that she works at the Dunkin' Donuts in Ansonia and that Mr. DiNardo frequented the store on a regular basis from January to April 2012.   She stated he was absent for a short period of time only.   He came in the morning and stayed a few hours.

The plaintiff also called Iris Lignor who worked at the Dunkin' Donuts.   She saw Mr. DiNardo in the store in February 2012.   She served him coffee during that period of time she did acknowledge a slight change in his appearance during that period of time.

The court record indicates the plaintiff's motion for default for failure to plead was dated February 17, 2012.   This was five weeks after the defendant returned home.   The court granted in default on March 17, 2012, ten weeks after the defendant returned home.   The court notice of the hearing in damages was set for April 30, 2012 and in the court notice of judgment was dated May 4, 2012.

The court should not open the default judgment in cases where the defendants received actual notice of the writ and chose to ignore the court's authority.   Black v. Universal C.I T. Credit Corp., 150 Conn. 188, 194, (1962).   “Negligence is not grounds for vacating the judgment, and it has been consistently held that the denial of a motion to open a default judgment should not be held an abuse of discretion where the failure to assert a defense was the result of negligence.  Pantlin & Chananie Development Corp. v. Hartford Cement & Building Co. 196 Conn. 233, 240–41 (1985).   Negligence of a party or his counsel is insufficient for purposes of section 52–212 of the Connecticut Gen. Statutes to set aside a default judgment.  Segretario v. Stewart–Warner Corp., 9 Conn.App. 355, 363, (1986).

The court does not find the testimony of the defendant Mr. DiNardo or his daughter Julie Coriano to be credible.   The evidence shows that this defendant received notice of this action.   The defendant was able to leave the home go to do business on a daily basis spend several hours there and testified that neither opened the mail.   The daughter testified she may have seen the mail but she never gave it to her father.   The business, however, continued to be active on a daily basis from February through April 2012.

Because the defendants have not shown that their failure to appear at trial resulted from mistake, accident or other reasonable cause, the court need not decide if a valid defense existed at the time.

For the foregoing reasons, the motion is denied.

IANNOTTI, J.

Iannotti, Frank A., J.