Rodney v. Desimone Enterprises, Inc., No. Cv 01-0807502 (Jun. 27, 2002)

Connecticut Superior Court

Rodney v. Desimone Enterprises, Inc., No. Cv 01-0807502 (Jun. 27, 2002)

2002 Conn. Super. Ct. 8203-df, 32 Conn. L. Rptr. 441

Connecticut Superior Court·Decided June 27, 2002·No. No. CV 01-0807502 CT Page 8203-dg·Unpublished

Opinion

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT (#124) The defendant's Motion for Summary Judgment is premised on the reading of Conn. Gen. Stat. § 52-593 having as a prerequisite the entry of a judgment. The cases cited in support of this construction of the statute do not afford authority for the defendant's position.

On its face the language of Conn. Gen. Stat. § 52-593 does not require the entry of a judgment before recourse is had to this statutory relief. Section 52-593 provides in pertinent 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."

The defendant also asserts that because the case was voluntarily withdrawn Section 52-593 is not available to the plaintiff. This court does not find anything in the statutory language of Section 52-593 which precludes recourse to this statute if a case is voluntarily withdrawn. The defendant would link the provision of Sections 52-592, accidental failure of suit and Section 52-593, action against wrong defendant. None of the cases cited by the defendant support this.

In the instant case the first case was withdrawn because the plaintiff learned that the wrong party was being sued. The new action was brought within a month of that withdrawal.

This court concludes that Section 52-593 does not preclude recourse to it if the case has been voluntarily withdrawn because the action was brought against the wrong defendant; and that judgment need not have entered against the wrong defendant as a prerequisite to using the statute.

The motion for summary judgment is denied.

___________________ Hennessey, J. CT Page 8203-dh

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[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT (#124) The defendant's Motion for Summary Judgment is premised on the reading of Conn. Gen. Stat. § 52-593 having as a prerequisite the entry of a judgment. The cases cited in support of this construction of the statute do not afford authority for the defendant's position.

On its face the language of Conn. Gen. Stat. § 52-593 does not require the entry of a judgment before recourse is had to this statutory relief. Section 52-593 provides in pertinent 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."

The defendant also asserts that because the case was voluntarily withdrawn Section 52-593 is not available to the plaintiff. This court does not find anything in the statutory language of Section 52-593 which precludes recourse to this statute if a case is voluntarily withdrawn. The defendant would link the provision of Sections 52-592, accidental failure of suit and Section 52-593, action against wrong defendant. None of the cases cited by the defendant support this.

In the instant case the first case was withdrawn because the plaintiff learned that the wrong party was being sued. The new action was brought within a month of that withdrawal.

This court concludes that Section 52-593 does not preclude recourse to it if the case has been voluntarily withdrawn because the action was brought against the wrong defendant; and that judgment need not have entered against the wrong defendant as a prerequisite to using the statute.

The motion for summary judgment is denied.

___________________ Hennessey, J. CT Page 8203-dh

Rodney v. Desimone Enterprises, Inc., No. Cv 01-0807502 (Jun. 27, 2002), 2002 Conn. Super. Ct. 8203-df, 32 Conn. L. Rptr. 441 (Colo. Ct. App. 2002).

Pincite

2002 Conn. Super. Ct. 8203-df (Rodney v. Desimone Enterprises, Inc., No. Cv 01-0807502 (Jun. 27, 2002)) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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