Ralph Marcarelli v. City of New Haven (2013)

MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT NO. 101

The plaintiff, Ralph Marcarelli, brings this action against the defendant, the city of New Haven, seeking money damages for injuries arising from an alleged slip and fall.   The plaintiff commenced this action under our accidental failure of suit statute;  General Statutes § 52–592; ¹  following the entry of a judgment of dismissal against the plaintiff in the underlying action for failure to file a status conference agreement form.   At issue is whether the underlying disciplinary dismissal ² constitutes a mere “matter of form,” arising from “mistake, inadvertence or excusable neglect,” thereby permitting the plaintiff to seek recourse under § 52–592.  Ruddock v. Burrowes, 243 Conn. 569, 576–77, 706 A.2d 967 (1998).   For the reasons set forth below, this court finds the dismissal here was in fact a matter of form.   Therefore, the plaintiff may bring the present action under § 52–592.   The motion for summary judgment is denied.

FACTS AND PROCEDURAL HISTORY

On June 12, 2001, the plaintiff commenced the underlying action titled Marcarelli v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV 01 0447106.   On May 3, 2007, the court issued a notice requesting that the parties select two alternate trial dates by the submission of a status conference agreement form no later than November 14, 2007.   On or about November 6, 2007, the underlying case was referred to the plaintiff's current attorney, who filed an appearance on the same day.   Notwithstanding the notice from the court, the plaintiff failed to file a status conference agreement form and, on December 20, 2007, the court entered a judgment of dismissal against the plaintiff.

On January 23, 2008, the plaintiff filed a motion to open the judgment of dismissal, which was subsequently denied by the court, Keegan, J., on February 9, 2009.   Thereafter, on March 17, 2009, the plaintiff appealed the court's order denying his motion to open.   In a per curiam opinion dated May 4, 2010, our Appellate Court affirmed the decision of the trial court.  Marcarelli v. New Haven, 120 Conn.App. 904, 991 A.2d 1119 (2010).

On March 11, 2011, the plaintiff commenced the present action pursuant to § 52–592.   On June 9, 2011, the defendant moved for summary judgment on the ground that § 52–592 is inapplicable, arguing that the plaintiff's conduct constitutes an egregious error that far surpasses the mistake, inadvertence or excusable neglect anticipated by the statute.   On August 31, 2012, the plaintiff filed an objection to the plaintiff's motion.   On September 17, 2012, the court, Fischer, J., denied the defendant's motion for summary judgment, holding that “[i]t is a question of fact whether counsel's failure to file the status conference form was a mistake or egregious error pursuant to [§ ]52–592.”

Subsequently, on April 11, 2013, the court, Nazzaro, J., held an evidentiary hearing regarding the circumstances surrounding the underlying judgment of dismissal, including the plaintiff's failure to file the status conference agreement form.   The plaintiff and defendant each submitted post-hearing briefs on May 1, 2013 and May 2, 2013, respectively.

DISCUSSION

As previously stated, the dispositive issue is whether the underlying disciplinary dismissal was a mere matter of form, arising from mistake, inadvertence or excusable neglect, thereby permitting the plaintiff to seek recourse under § 52–592.

Section 52–592 provides a plaintiff with a one-year opportunity to commence a new action for the same cause if a prior action has failed to be tried on its merits for any manner of form.  “Our Supreme Court has long held that § 52–592 is remedial and is to be liberally interpreted ․ Its essential purpose is to ensure the plaintiff the right to a trial of his claim.”  (Citations omitted;  internal quotation marks omitted.)  Teller v. Abbott Laboratories, Inc., 114 Conn.App. 244, 250, 969 A.2d 210 (2009).  “Although § 52–592 should be broadly construed because of its remedial nature, it should not be construed so broadly as to hamper a trial court's ability to manage its docket by dismissing cases for appropriate transgressions.”  (Internal quotation marks omitted.)  Stevenson v. Peerless Industries, Inc., 72 Conn.App. 601, 607, 806 A.2d 567 (2002).

Whether a disciplinary dismissal may properly be characterized as a matter of form depends on the nature and extent of the conduct that led to the disciplinary dismissal.  Ruddock v. Burrowes, supra, 243 Conn. 570.   “Disciplinary dismissals do not, in all cases, demonstrate the occurrence of misconduct so egregious as to bar recourse to § 52–592 ․ Whether the statute applies cannot be decided in a factual vacuum.   To enable a plaintiff to meet the burden of establishing the right to avail himself or herself of the statute, a plaintiff must be afforded an opportunity to make a factual showing that the prior dismissal was a matter of form in the sense that the plaintiff's noncompliance with a court order occurred in circumstances such as mistake, inadvertence or excusable neglect.”  (Citation omitted;  internal quotation marks omitted.)  Id., 576–77.   Accordingly, “it is appropriate to consider each case along a continuum;  at one extreme are dismissals for mistake or inadvertence, at the other extreme are dismissals for serious misconduct or a series of cumulative transgressions.”  Gillum v. Yale University, 62 Conn.App. 775, 783, 773 A.2d 986, cert. denied, 256 Conn. 929, 776 A.2d 1146 (2001).

To illustrate, in Tellar v. Abbott Laboratories, Inc., supra, 114 Conn.App. 252, our Appellate Court concluded that the plaintiff was entitled to the relief afforded by § 52–592 where the conduct that prompted the underlying dismissal “was neither repeated nor protracted.   It consisted of a singular failure to comply with a discovery request over the course of four months.”   The court further noted that “the plaintiff provided a credible explanation for his failure to comply with the discovery request—namely, the grave health of members of his counsel's family that the defendant at no time has disputed.   Furthermore ․ the plaintiff fully complied with the discovery request prior to filing his motion to open the judgment in the first action and prior to instituting the present action.   His fifty-one-page response to the defendant's discovery request was filed ․ less than eight months after the request first was made.   Such compliance belies any contention that the plaintiff engaged in a pattern of repeated delay.”  Id., 254.

In so holding, the court in Tellar distinguished a line of cases where plaintiffs were denied recourse under § 52–592 in light of their serious or repeated misconduct.  Id., 251–53.   Most notably, the court distinguished Gillum v. Yale University, supra, 62 Conn.App. 783, where the plaintiffs were precluded from bringing an action under § 52–592, as the underlying action was “beset by lackadaisical behavior by the plaintiffs at every turn.”   In that case, the plaintiffs' conduct occasioned three judgments of dismissal over the course of six years.  Id., 783.   Moreover, the plaintiffs repeatedly ran deadlines to their limits before either filing motions to reopen or complying with court orders and, even after the third dismissal, the plaintiffs failed to provide the court with an explanation for their conduct.   Id., 783–84.

In the present case, the judgment of dismissal arose from the singular failure of the plaintiff to file a status conference agreement form, within the eight days following the appearance of his current attorney in the underlying matter.   At the evidentiary hearing, the plaintiff's attorney testified that notice was mailed to former counsel, and that the notice was either lost during the plaintiff's transition between attorneys or simply overlooked by the plaintiff's attorney.   Hr'g Tr. 15:14–16:6.   Moreover, it is clear that the plaintiff's failure to file the form was not part of a larger “pattern of repeated delay.”   For instance, following the entry of the judgment of dismissal, the plaintiff promptly filed a motion to open and, after that motion was denied, filed an appeal.   More importantly, the plaintiff has represented to this court that, on or about November 14, 2007, the underlying action was ready for trial in all respects.   Accordingly, as in Tellar, the plaintiff's conduct falls within the ambit of mistake, inadvertence or excusable neglect, and does not rise to the level of egregious conduct required to preclude the application of § 52–592.

CONCLUSION

For the foregoing reasons, this action filed under § 52–592 survives.   The motion for summary judgment is denied.

By the Court,

Nazzaro, J.

FOOTNOTES

FN1. Subsection (a) of General Statutes § 52–592 provides, in relevant part:  “If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits ․ for any matter of form ․ the plaintiff ․ may commence a new action ․ for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment.”.  FN1. Subsection (a) of General Statutes § 52–592 provides, in relevant part:  “If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits ․ for any matter of form ․ the plaintiff ․ may commence a new action ․ for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment.”

FN2. “Disciplinary dismissals refer to cases dismissed for a variety of reasons, such as the failure to attend a scheduled pretrial conference ․ or the failure to close the pleadings in a timely manner.”  (Internal quotation marks omitted.)  Vestuti v. Miller, 124 Conn.App. 138, 144 n.5, 3 A.3d 1046 (2010)..  FN2. “Disciplinary dismissals refer to cases dismissed for a variety of reasons, such as the failure to attend a scheduled pretrial conference ․ or the failure to close the pleadings in a timely manner.”  (Internal quotation marks omitted.)  Vestuti v. Miller, 124 Conn.App. 138, 144 n.5, 3 A.3d 1046 (2010).

Nazzaro, John J., J.