Daniel Fiamengo v. Norman Pattis et al. (2014)

MEMORANDUM OF DECISION RE DEFENDANT NEIL M. O'LEARY'S MOTION FOR SUMMARY JUDGMENT (# 135)

The plaintiff, Daniel Fiamengo, commenced the present action against the defendants, Norman Pattis and Neil O'Leary, by service of process on August 23, 2013.   O'Leary is moving for summary judgment on the grounds that the complaint fails to state a claim upon which relief can be granted, the claims are barred by the applicable statute of limitations, the action was not commenced within the meaning of General Statutes § 52–592, and the claims are barred by res judicata and/or collateral estoppel.   The plaintiff's motion for summary judgment disputes the arguments in O'Leary's brief.

The plaintiff's complaint alleges seven counts of assault and battery against O'Leary.   The plaintiff alleges that the assault and battery occurred on November 21, 2001, when O'Leary was a Waterbury police officer.   The relevant counts allege that O'Leary committed an assault and battery and could have prevented the same from occurring while the plaintiff was in the custody of the Waterbury police but O'Leary failed to do so.   The counts further allege that O'Leary conspired with other officers to commit the assault and battery.

“Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law ․ [S]ince litigants ordinarily have a constitutional right to have issues of fact decided by a jury ․ the moving party for summary judgment is held to a strict standard ․ of demonstrating his entitlement to summary judgment.”  (Citation omitted;  internal quotation marks omitted.)  Grenier v. Commissioner of Transportation, 306 Conn. 523, 534–35 (2012).  “Summary judgment may be granted where the claim is barred by the statute of limitations.”  Doty v. Mucci, 238 Conn. 800, 806 (1996).   Summary judgment is appropriate on statute of limitation grounds when the “material facts concerning the statute of limitations [are] not in dispute ․” Burns v. Hartford Hospital, 192 Conn. 451, 452 (1984).

General Statutes § 52–577 provides:  “No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.”  “Section 52–577 is an occurrence statute, meaning that the time period within which a plaintiff must commence an action begins to run at the moment the act or omission complained of occurs ․ When conducting an analysis under § 52–577, the only facts material to the trial court's decision on a motion for summary judgment are the date of the wrongful conduct alleged in the complaint and the date the action was filed.”  (Citations omitted;  internal quotation marks omitted.)  Rosenfield v. Rogin, Nassau, Caplan, Lassman & Hirtle, LLC, 69 Conn.App. 151, 158–59 (2002).   Additionally, General Statutes § 52–584 provides in relevant part:  “No action to recover damages for injury to the person ․ caused by negligence, or by reckless or wanton misconduct ․ shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of ․”

In the present case, the plaintiff alleged that the wrongful conduct occurred November 21, 2001.   The action was commenced on August 23, 2013, which is outside the time limitations set forth in §§ 52–577 and 52–584.   The plaintiff argues that he is hindered in opposing this motion because of his inability to access his main file.   The documents that the plaintiff argues are missing, however, would not create a genuine issue of material fact as to the statute of limitations issue presently before the court.   Accordingly, there exists no genuine issue of material fact as to the statute of limitations running, and O'Leary is entitled to judgment as a matter of law on the counts against him.

Moreover, neither § 52–592, nor General Statutes § 52–593 applies to the present action.  Section 52–592(a) 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 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, or because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form;  or if, in any such action after a verdict for the plaintiff, the judgment has been set aside, or if a judgment of nonsuit has been rendered or a judgment for the plaintiff reversed, the plaintiff ․ may commence a new action, except as provided in subsection (b) of this section, for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment.”   Section 52–593 provides in relevant part:  “When a plaintiff in any civil action has failed to obtain judgment by reason of failure to name the right person as defendant therein, the plaintiff may bring a new action and the statute of limitations shall not be a bar thereto if service of process in the new action is made within one year after the termination of the original action.”

“There is no question that the trial court may take judicial notice of the file in another case, whether or not the other case is between the same parties.”  (Internal quotation marks omitted.)  Drabik v. East Lyme, 234 Conn. 390, 398 (1995).  Section 52–592 does not apply to the present action because the plaintiff did not bring the same cause of action against O'Leary in either of the previous actions that the plaintiff cites in his motion for summary judgment and memorandum of law.   O'Leary was not named as a defendant and no claims were made against him in Fiamengo v. Burgdorff Superior Court, judicial district of New London, Docket No. CV–08–5009882–S.   Additionally, neither statute applies to the plaintiff's case against two other Waterbury police officers in the United States District Court for the District of Connecticut, Fiamengo v. Saucier, Docket No. 3:04–CV–01699 TPS, because O'Leary was not named as a defendant and judgment was entered in the officers' favor in 2007.

Accordingly, O'Leary's motion for summary judgment is granted, and the plaintiff's motion for summary judgment is denied.

Seymour L. Hendel, J.T.R.

Hendel, Seymour L., J.T.R.