Kuselias v. Zingaro & Cretella, LLC ( 2024 )

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KRISTEN KUSELIAS v. ZINGARO &
CRETELLA, LLC, ET AL.
(AC 45952)
Suarez, Clark and Seeley, Js.
Syllabus
The plaintiff sought to recover damages from the defendants, an attorney
and the law firm with which he was engaged in the practice of law, for
their alleged legal malpractice in connection with their representation
of her during certain postdissolution proceedings. The trial court had
rendered a judgment of nonsuit in a prior action against these same
defendants as a result of the plaintiff’s failure to comply with certain
discovery orders and thereafter denied the plaintiff’s motion to open
the judgment. The plaintiff commenced the present action pursuant to
the accidental failure of suit statute (§ 52-592), alleging, inter alia, that
the defendants had entered into a stipulation with the plaintiff’s former
husband and his attorney that had been reached without her participa-
tion and, as a result, she had incurred additional legal fees, loss of
income and financial obligations. The defendants filed a motion for
summary judgment, arguing that the plaintiff’s prior action against the
defendants alleged nearly identical claims, and that her claims of legal
malpractice and negligent misrepresentation were time barred and could
not be saved by § 52-592. The defendants argued that the prior action
had resulted in a judgment of nonsuit against the plaintiff for disciplinary
reasons following her noncompliance with the court’s discovery orders
and, therefore, that judgment had not been rendered as a result of a
matter of form. The trial court rendered judgment granting the defen-
dants’ motion for summary judgment, observing that it was undisputed
that, at the time of the hearing on the motion to open the judgment of
nonsuit, the plaintiff had still not disclosed an expert witness, and that
the plaintiff’s attorney, V, had claimed at the hearing that an expert had
not been disclosed because he did not want to ask the plaintiff to pay
for an expert witness after a judgment of nonsuit had been rendered. The
court concluded that the failure to disclose an expert was a deliberate
decision to avoid costs and that this failure constituted intentional,
dilatory conduct and was clearly egregious. The court also noted that,
although the plaintiff had averred that she experienced psychological
stress and related mental health symptoms when she attempted to com-
ply with her discovery obligations because they caused her to recall
unpleasant facts related to her relationship with her former husband,
these concerns did not constitute excusable neglect, inadvertence, or
mistake. The court subsequently denied the plaintiff’s motion to reargue
and reconsider, and this appeal followed. Held:
1. The plaintiff could not prevail on her claim that the trial court improperly
rendered summary judgment in favor of the defendants with respect to
the legal malpractice and negligent misrepresentation counts of her
complaint, which was based on her claim that those counts were not
time barred by the applicable statute of limitations (§ 52-577) because
they were properly brought pursuant to § 52-592: the trial court correctly
determined that there was no genuine issue of material fact that the
conduct that led to the judgment of nonsuit in the prior action was not
a matter of form, it was undisputed that the plaintiff had failed to disclose
an expert witness by the time of the hearing on the motion to open the
judgment of nonsuit in the prior action, and the plaintiff’s deliberate
strategy of failing to retain an expert to avoid costs was contrary to her
obligations pursuant to the applicable rule of practice (§ 13-4) and the
discovery deadlines imposed by the court in the prior action, and, thus,
insofar as the judgment of nonsuit was based on the plaintiff’s failure
to disclose an expert, the judgment resulted from a deliberate disregard
for the court’s authority; moreover, the court considered the fact that
the judgment of nonsuit in the prior action was based on the plaintiff’s
failure to respond to interrogatories and requests for production, and
it was clear that the plaintiff had engaged in a pattern of missing dead-
lines for compliance and, after the fact, having sought extensions of
time in which to comply; furthermore, this court agreed with the trial
court that the personal trauma experienced by the plaintiff when
attempting to comply with the trial court’s clear and unambiguous dis-
covery orders, although difficult, did not amount to excusable neglect,
and neither the record nor the plaintiff’s affidavit suggested that V
counseled the plaintiff with respect to the effect of her failure to comply
with the court’s orders.
2. The trial court did not abuse its discretion in denying the plaintiff’s
motion to reargue and reconsider its ruling on the defendant’s motion
for summary judgment: the plaintiff’s motion did not demonstrate to
the trial court that there was some decision or other principle of law
that would have had a controlling effect and had been overlooked or
that there had been a misapprehension of facts but, rather, was the
quintessential example of a party seeking the proverbial second bite of
the apple, as the record reflected that the plaintiff used the motion to
present a different argument than that on which she had relied in oppos-
ing the motion for judgment of nonsuit in the prior action, when she
sought to open the judgment of nonsuit, and in opposing the motion
for summary judgment in the present action; moreover, the plaintiff
submitted certain evidence in support of the motion to reargue and
reconsider that contradicted the evidence on which she had relied pre-
viously, and the nature of that evidence, which pertained to events that
predated the judgment of nonsuit, compelled the conclusion that it was
not newly discovered, and, under our rules of practice (§ 17-45), the
time to submit relevant evidence in connection with a motion in support
of or in opposition to a motion for summary judgment is before the
motion is heard, not following an adverse ruling on the motion.
Argued November 9, 2023—officially released March 12, 2024
Procedural History
Action to recover damages for, inter alia, the defen-
dants’ alleged legal malpractice, and for other relief,
brought to the Superior Court in the judicial district of
New Haven, where the court, Abrams, J., granted the
defendants’ motion for summary judgment and ren-
dered judgment thereon; thereafter, the court, Abrams,
J., denied the plaintiff’s motion to reargue and recon-
sider, and the plaintiff appealed to this court. Affirmed.
Kenneth A. Votre, for the appellant (plaintiff).
Valerie M. Ferdon, with whom, on the brief, was
Kerry R. Callahan, for the appellee (defendants).
Opinion
SUAREZ, J. The plaintiff, Kristen Kuselias, brought
the civil action underlying this appeal, in which she
raised claims of legal malpractice, breach of contract,
and negligent misrepresentation against the defendants,
the law firm of Zingaro & Cretella, LLC, and Attorney
Eugene J. Zingaro. The plaintiff appeals from (1) the
judgment of the trial court rendered in favor of the
defendants after it granted their motion for summary
judgment with respect to all three counts of her com-
plaint and (2) the denial of her subsequent motion to
reargue and reconsider. The plaintiff claims that the
court erred by (1) granting the defendants’ motion for
summary judgment with respect to her claims of legal
malpractice and negligent misrepresentation, despite
her assertion that these claims could properly be
brought pursuant to General Statutes § 52-592, the acci-
dental failure of suit statute, and (2) denying her motion
to reargue and reconsider its ruling on the motion for
summary judgment. We affirm the judgment of the
trial court.
The following procedural history is relevant to the
claims raised in the present appeal. In July, 2021, the
plaintiff commenced the underlying action. In the plain-
tiff’s complaint, she raised three claims related to the
legal representation that she received from Zingaro and
the law firm with which he was engaged in the practice
of law, Zingaro & Cretella, LLC, in connection with
postdissolution proceedings involving her former hus-
band.
In count one of the plaintiff’s complaint, sounding in
legal malpractice, she alleged that, from approximately
August 12 to December 7, 2015, the defendants repre-
sented the plaintiff in the postdissolution proceedings.
The plaintiff retained the defendants ‘‘to perform dis-
covery and schedule a hearing to have the financial
orders [that were the product of the dissolution action]
opened and redetermined based on the discovery of
new and significantly different financial information
[than] was produced at the time of the divorce.’’ The
defendants’ appearance was in lieu of another attorney,
Michael Perzin. Perzin had successfully litigated a
motion to open the August 30, 2012 judgment of dissolu-
tion on the basis of alleged fraud committed by the
plaintiff’s former husband during the dissolution pro-
ceeding.1 Specifically, following an Oneglia hearing,2
the court determined that the plaintiff had substantiated
the allegations of fraud beyond mere suspicion, thus
permitting her to engage in discovery.
The plaintiff further alleged that, on or about October
22, 2015, Zingaro filed a second motion to open and
vacate the August 30, 2012 judgment of dissolution and
requested that the court schedule a hearing on the
motion. The court scheduled a hearing for December
7, 2015. In her complaint, the plaintiff alleged that, at
the hearing on the motion to open, Zingaro, having
failed to conduct reasonable discovery to reveal the
nature and extent of the fraud that had occurred in
connection with the dissolution action,3 conferred with
the plaintiff’s former husband and his attorney. The
result of this meeting was a stipulation that the plaintiff
alleges was reached without her participation and was
detrimental to her as it left her unable to support herself.
The plaintiff alleged that the defendants ‘‘agreed to ter-
minate the plaintiff’s then existing support and alimony
four years earlier than had been agreed to in the initial
August 30, 2012 judgment [of dissolution], failed to
obtain adequate support, and failed to obtain an ade-
quate division of marital assets for the plaintiff.’’ Addi-
tionally, the plaintiff alleged that ‘‘the defendants failed
to structure, discuss with the plaintiff, and negotiate
protections for the plaintiff relating to the plaintiff’s
former husband’s retirement accounts. The defendants
waived any and all claims for unpaid support, sanctions,
additional discovery, and attorney’s fees. The defen-
dants actually disclaimed the fraud upon which the
judgment was opened.’’ Moreover, the plaintiff alleged
that ‘‘[t]he defendants also waived claims for attorney’s
fees and support based upon the former husband’s earn-
ing capacity.’’ The plaintiff alleged that the defendants
effectively ‘‘waived all the benefits obtained by opening
the judgment for fraud.’’ The plaintiff further alleged
that the stipulation, which was ‘‘approved’’ by the defen-
dants and which they pressured her to accept, failed
to meet the applicable standard of care in several enu-
merated ways, caused her ‘‘sustained economic and
monetary loss due to a loss of property and alimony
rights, future alimony, and a division of hidden assets.’’
Furthermore, the plaintiff alleged that the defendants’
conduct caused her to incur additional legal fees, loss
of income, and financial obligations.
In count two, sounding in breach of contract, the
plaintiff, relying on the factual allegations set forth in
count one, alleged that ‘‘[t]he legal relationship and
agreement between the plaintiff and the defendants
constituted a contract which was formed by the execu-
tion of the retainer agreement and by virtue of the oral
agreements and understandings of the parties.’’ The
plaintiff alleged that the contract ‘‘was a contract for
a specific result, namely, the representation of the plain-
tiff’s interests during her postjudgment action.’’
According to the plaintiff, the defendants breached the
terms of the contract, and, as a direct and proximate
result of that breach, she suffered a variety of damages.
In count three, sounding in negligent misrepresenta-
tion, the plaintiff, relying on the factual allegations set
forth in count one, alleged that ‘‘[t]he defendants, at
various times during [their] representation, made mate-
rial representations of fact that the defendants knew,
or reasonably should have known, were untrue.’’ These
misrepresentations related to the adequacy of the ali-
mony award and property division, the accuracy of the
financial information provided by the plaintiff’s former
husband, the adequacy of the stipulation to protect the
plaintiff’s rights in the marital estate and the marital
income, the fact that the defendants would conduct
reasonable discovery, and the fact that the defendants
would obtain for the plaintiff adequate alimony and
support. The plaintiff alleged that she reasonably relied
on these material factual misrepresentations and that,
as a result, she ‘‘was damaged and lost the likelihood of
additional alimony, additional property, incurred exces-
sive and unnecessary attorney’s fees, and lost support
and interest.’’
In her complaint, the plaintiff alleged that the action
was brought pursuant to the accidental failure of suit
statute, § 52-592. Alternatively, the plaintiff alleged that
the action was being brought pursuant to an executive
order, namely, Executive Order No. 7G, which was issued
by Governor Ned Lamont on March 19, 2020.4 The plain-
tiff sought monetary and punitive damages, costs, attor-
ney’s fees, and any further relief that the court deemed
fair, just, and equitable.
In their answer, the defendants admitted that they
represented the plaintiff in the postdissolution proceed-
ings and that they had advised her and negotiated a
settlement on her behalf. The defendants either denied
or left the plaintiff to her proof with respect to many of
the factual allegations in her complaint. The defendants
denied that they breached the applicable standard of
care, breached any contract with the plaintiff, or made
any misrepresentations to the plaintiff. By way of a first
special defense, the defendants alleged that the first
and third counts were barred by the three year statute of
limitations applicable to tort actions, General Statutes
§ 52-577. By way of a second special defense, the defen-
dants alleged that the second count was barred by the
three year statute of limitations applicable to actions for
breach of an oral contract, General Statutes § 52-581.
On January 11, 2022, the defendants filed a motion for
summary judgment. The defendants argued in relevant
part that ‘‘[t]he plaintiff initiated an original action
against the defendants three years ago; [Kuselias v.
Zingaro & Cretella, LLC, Superior Court, judicial dis-
trict of New Haven, Docket No. CV-XX-XXXXXXX-S (Kusel-
ias I)]; alleging legal malpractice, breach of contract,
and negligent misrepresentation. Kuselias I resulted in
a judgment of nonsuit against the plaintiff for her blatant
disregard of court orders. The plaintiff has now [in
the present case] filed a nearly identical complaint,
Kuselias II,5 seeking to relitigate the same claims. Con-
trary to the plaintiff’s contentions, the first and third
counts are time barred and cannot be saved by the
accidental failure of suit statute . . . .’’6 (Footnote
added.)
In the defendants’ memorandum of law accompa-
nying their motion for summary judgment, the defen-
dants elaborated on their argument, stating that, as a
matter of law, the claims in the first and third counts
of the complaint were subject to the three year statute
of limitations for tort claims codified in § 52-577. The
defendants argued that the plaintiff terminated the
defendants’ representation of her in the postdissolution
proceedings on May 7, 2016, and, thus, she was required
to commence the action based on counts one and three
no later than May 7, 2019. The plaintiff, however, com-
menced the present action in July, 2021.
The defendants argued that there was no genuine
issue of material fact with respect to whether the acci-
dental failure of suit statute could be applied to save
the claims set forth in counts one and three.7 Specifi-
cally, the defendants argued that the facts in Kuselias
I reflect that the judgment of nonsuit was rendered for
disciplinary reasons following the plaintiff’s egregious
noncompliance with discovery, not because of a matter
of form that would have brought the failure of the prior
action to be tried within the purview of the accidental
failure of suit statute. In an attempt to demonstrate that
the accidental failure of suit statute could not be applied
in the present case, the defendants relied on exhibits
that they had attached to their memorandum of law.
These exhibits detailed the procedural history in Kusel-
ias I and, in particular, the history of the plaintiff’s
noncompliance with discovery that led the court,
Wahla, J., on October 26, 2020, to grant the defendants’
motion for a judgment of nonsuit for the plaintiff’s fail-
ure to comply with discovery.
In support of their motion for summary judgment in
Kuselias II, the defendants presented evidence that, in
Kuselias I, the plaintiff had repeatedly failed to meet
deadlines, and then failed to meet extended deadlines,
for compliance with a request for production of certain
documents, interrogatories, and a request to disclose
an expert witness. The defendants presented evidence
that, in Kuselias I, in light of the plaintiff’s repeated
noncompliance, they brought a motion for order of com-
pliance before the court, Wilson, J., which granted the
motion, thereby affording the plaintiff until March 16,
2020, to comply with discovery.8 The plaintiff did not
comply with this deadline, which led the defendants to
bring the motion for nonsuit in Kuselias I.
In support of their motion for summary judgment in
Kuselias II, the defendants also relied on the fact that,
after the court granted the motion for nonsuit in Kusel-
ias I, the plaintiff filed a motion to open in Kuselias
I, which is governed by General Statutes § 52-212.9 In
connection with the motion for summary judgment, the
defendants submitted as an exhibit the transcript from
the May 5, 2021 hearing on the motion to open. The
transcript reflects that, in Kuselias I, the court, Wahla,
J., afforded the plaintiff’s counsel an opportunity to
explain what reasonable cause existed that prevented
the plaintiff from prosecuting her action. The plaintiff’s
counsel, Kenneth A. Votre, represented that the plaintiff
had ‘‘difficult issues’’ as a result of the dissolution of
her marriage and that he had difficulty obtaining the
records sought, he had to depend on third parties to
obtain the information sought, and someone working
in his office had contracted COVID-19, which resulted
in his office being closed for an undisclosed amount of
time. In its ruling, the court emphasized the importance
of compliance with the rules of discovery, and observed
that, ‘‘when someone knocks on the door of the court,
we have procedures in place to follow.’’ The court was
not persuaded by the arguments raised by the plaintiff’s
counsel, noting that the arguments were, in effect, an
invitation for the court to ignore the noncompliance at
issue. The court stated that it had reviewed the file
and did not see that good faith efforts to comply with
discovery had been made. Thus, in Kuselias I, the court
ultimately denied the motion to open. The plaintiff did
not appeal from the judgment of nonsuit or the denial
of her motion to open in Kuselias I.
The plaintiff in Kuselias II filed a memorandum of
law in opposition to the defendants’ motion for sum-
mary judgment. Not disputing that counts one and three
were time barred, the plaintiff attempted to demon-
strate that a genuine issue of material fact existed with
respect to the applicability of the accidental failure of
suit statute. In support of the plaintiff’s memorandum
of law, the plaintiff submitted her own affidavit. Relying
on the averments therein, the plaintiff in her objection
attempted to demonstrate that, in Kuselias I, she made
attempts to comply with the court’s discovery order
but could not do so ‘‘[d]ue to the onset of panic attacks
and anxiety [and that she] was triggered when she
reviewed the documents from her divorce. This inability
in the prior action led the trial court to grant [a] nonsuit
in favor of the [defendants] without an evidentiary hear-
ing.’’ The plaintiff attempted to demonstrate that she
‘‘simply could not discuss and provide the information
[regarding the discovery request at issue] to counsel.’’
She argued that the averments in the affidavit demon-
strated that she attempted to respond to the discovery
request, developed anxiety and panic attacks when she
attempted to respond to the request, became homeless
and unemployed during the period of time at issue,
concealed her suffering due to the fear that exposure
would affect her children and custody, and ‘‘kept this
information from her counsel and the court because of
fear and embarrassment.’’ In light of the foregoing, the
plaintiff argued that a genuine issue of material fact
existed with respect to whether the failure to comply
with the court’s discovery request in Kuselias I was due
to excusable neglect, rather than serious misconduct.
Thus, the plaintiff argued that the circumstances of her
noncompliance in Kuselias I entitled her to the benefit
of the accidental failure of suit statute in Kuselias II.
On May 16, 2022, the court, Abrams, J., heard oral
argument with respect to the defendants’ motion for
summary judgment in Kuselias II. On August 29, 2022,
the court, in a thorough memorandum of decision, ren-
dered its judgment granting the motion. The court aptly
summarized the plaintiff’s argument, namely, that she
was entitled to try her case on its merits because the
judgment of nonsuit in Kuselias I had been rendered
for a matter of form. The court noted that the plaintiff
had attempted to demonstrate that she was unable to
comply with discovery ‘‘as a result of the emotional
turmoil triggered by her attempts to review the docu-
ments relevant to discovery. . . . She contends that
she could not discuss and provide the information to
counsel and that she hid her problem out of fear and
embarrassment.’’ (Citation omitted.) In its analysis of
whether the accidental failure of suit statute applied,
the court correctly stated that ‘‘[t]he critical question
is whether the judgment of nonsuit entered in Kuselias
I resulted from a ‘matter of form.’ The defendants argue
that there is no genuine issue of material fact that the
nonsuit did not result from mistake, inadvertence, or
excusable neglect. Rather, they contend, the plaintiff
blatantly disregarded the court’s orders with respect
to interrogatory responses, document production, and
expert disclosure compliance. . . . They specifically
point out that the plaintiff has not offered any explana-
tion for her failure to disclose an expert witness. . . .
Moreover, they argue that the noncompliance in this
case was not a singular, isolated incident, but a pattern
that persisted over one year and four months. . . .
They point out that, neither the fact [that] the produc-
tion demanded required review of a large volume of
nearly 7000 pages of documents, nor that the plaintiff
became confused with respect to timelines will carry
the day. . . . Finally . . . they suggest that the expla-
nation the plaintiff offers in her affidavit for discovery
noncompliance—that she had a difficult time and her
counsel did not understand how to help her—is vague
at best.’’
The court observed that, setting aside the plaintiff’s
reasons for not responding to requests for production
of documents or replying to interrogatories in Kuselias
I, there was no genuine issue of material fact that, at
the time of the May 5, 2021 hearing on the motion to
open the judgment of nonsuit in Kuselias I, the plaintiff
had still not disclosed an expert witness. Indeed, the
court observed that, at the May 5, 2021 hearing, the
plaintiff’s counsel acknowledged that an expert had not
been disclosed because he did not feel it was appro-
priate to ask his client to pay for an expert witness in
light of the fact that a judgment of nonsuit had been
rendered. The court stated that failing to disclose an
expert witness without a viable explanation is not a
matter of form, and that ‘‘there is no genuine dispute
of material fact that the plaintiff’s failure to disclose an
expert did not result from excusable neglect, mistake,
or inadvertence.’’ In ruling on the motion for summary
judgment, the court noted that ‘‘the plaintiff’s only piece
of evidence, her affidavit, does not address her failure to
comply with expert disclosure, but only her purported
inability to address the task of reviewing documents.
. . . Nor does the plaintiff address noncompliance with
expert disclosure in her brief. In the absence of a genu-
ine dispute of material fact, whether a prior judgment
of nonsuit resulted from a matter of form is a legal
question for the trial court.’’ (Citation omitted.) The
court concluded that the record in Kuselias I reflected
that the failure to disclose an expert was a decision
made by the plaintiff to avoid costs, and that this failure
amounted to intentional and dilatory conduct that was
‘‘clearly egregious’’ in nature.
With respect to the issue of noncompliance with dis-
covery in Kuselias I, the court, in ruling on the motion
for summary judgment in Kuselias II, noted that the
plaintiff had attempted to demonstrate that it was very
difficult for her to comply with the defendants’ interrog-
atories and its request for the production of documents.
The court stated, however, that, because the plaintiff
did not aver in her affidavit that her failure to respond
to the defendants’ discovery requests was the result of
a serious illness or a circumstance beyond her control,
her affidavit was, itself, proof that Kuselias I was not
terminated due to mistake or inadvertence. Although
the court noted that the plaintiff had averred that she
experienced psychological stress and related mental
health symptoms when she attempted to comply with
her discovery obligations, the court reasoned that ‘‘[a]
lack of diligence resulting from being busy, distracted,
or otherwise experiencing the stresses of life is not, in
and of itself, excusable neglect, inadvertence, or mis-
take.’’ The court noted that, although it did not mean
to diminish the plaintiff’s psychological symptoms, it
was presented with a situation in which it appeared
that the plaintiff’s counsel did not fulfill his obligation
‘‘to step in and address the issues outlined in the plain-
tiff’s affidavit’’ but had, instead, pursued a policy of
‘‘simply [standing] back and [waiting] repeatedly [to]
throw themselves on the mercy of the court after failure
to meet deadline after deadline.’’
On September 19, 2022, after the court rendered sum-
mary judgment in favor of the defendants with respect
to all three counts of the plaintiff’s complaint, the plain-
tiff filed a motion to reargue and reconsider pursuant
to Practice Book § 11-11 et seq. The plaintiff argued
that the court had misapprehended the facts and misap-
plied the law. On September 27, 2022, the defendants
filed an objection to the plaintiff’s motion to reargue
and reconsider. On September 30, 2022, the plaintiff
filed a reply to the defendants’ objection. By order dated
October 11, 2022, the court denied the plaintiff’s motion
to reargue and reconsider. This appeal from the court’s
rendering of summary judgment and the court’s denial
of the motion to reconsider followed. Additional proce-
dural history will be set forth as relevant.
I
First, the plaintiff claims that the court erred in grant-
ing the defendants’ motion for summary judgment with
respect to her claims of legal malpractice and negligent
misrepresentation because these claims could properly
be brought pursuant to the accidental failure of suit
statute. We are not persuaded.
We begin by setting forth the following applicable
legal principles. ‘‘In seeking summary judgment, it is
the movant who has the burden of showing the nonexis-
tence of any issue of fact. The courts are in entire
agreement that the moving party for summary judgment
has the burden of showing the absence of any genuine
issue as to all the material facts, which, under applicable
principles of substantive law, entitle him to a judgment
as a matter of law. The courts hold the movant to a
strict standard. To satisfy his burden the movant must
make a showing that it is quite clear what the truth is,
and that excludes any real doubt as to the existence of
any genuine issue of material fact. . . . As the burden
of proof is on the movant, the evidence must be viewed
in the light most favorable to the opponent. . . . When
documents submitted in support of a motion for sum-
mary judgment fail to establish that there is no genuine
issue of material fact, the nonmoving party has no obli-
gation to submit documents establishing the existence
of such an issue. . . . Once the moving party has met
its burden, however, the opposing party must present
evidence that demonstrates the existence of some dis-
puted factual issue. . . . It is not enough, however, for
the opposing party merely to assert the existence of
such a disputed issue. Mere assertions of fact . . . are
insufficient to establish the existence of a material fact
and, therefore, cannot refute evidence properly pre-
sented to the court under Practice Book § [17-45]. . . .
Our review of the trial court’s decision to grant [or
to deny a] motion for summary judgment is plenary.’’
(Footnote omitted; internal quotation marks omitted.)
Atlantic St. Heritage Associates, LLC v. Atlantic Realty
Co., 216 Conn. App. 530, 539–40, 285 A.3d 1128 (2022).
‘‘[I]n the context of a motion for summary judgment
based on a statute of limitations special defense, [the
defendants] typically [meet their] initial burden of
showing the absence of a genuine issue of material
fact by demonstrating that the action had commenced
outside of the statutory limitation period. . . . When
the plaintiff asserts that the limitations period has been
tolled by an equitable exception to the statute of limita-
tions, the burden normally shifts to the plaintiff to estab-
lish a disputed issue of material fact in avoidance of
the statute. . . . Put differently, it is then incumbent
upon the party opposing summary judgment to establish
a factual predicate from which it can be determined,
as a matter of law, that a genuine issue of material
fact exists.’’ (Citation omitted; internal quotation marks
omitted.) Iacurci v. Sax, 313 Conn. 786, 799, 99 A.3d
1145 (2014). In the present case, although the plaintiff
relies not on an equitable exception to the statute of
limitations, but on a remedial statute, the plaintiff’s
burden in opposing the defendants’ motion for summary
judgment is not in dispute. After the defendants set forth
uncontroverted facts demonstrating that the claims set
forth in counts one and three of Kuselias II were
brought outside of the statutory limitation period estab-
lished by § 52-277, it was incumbent on the plaintiff to
establish a factual predicate from which it could be
determined that a genuine issue of material fact existed
with respect to the applicability of § 52-592.
Section 52-592 (a) provides: ‘‘If any action, com-
menced 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 unavoid-
able 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,
or, if the plaintiff is dead and the action by law survives,
his executor or administrator, 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.’’
‘‘Deemed a ‘saving statute,’ § 52-592 enables plaintiffs
to bring anew causes of actions despite the expiration
of the applicable statute of limitations.’’ Pepitone v.
Serman, 69 Conn. App. 614, 619, 794 A.2d 1136 (2002).
Section 52-592 ‘‘is remedial and is to be liberally inter-
preted.’’ Ross Realty Corp. v. Surkis, 163 Conn. 388,
393, 311 A.2d 74 (1972). ‘‘[B]y its plain language, [§ 52-
592] is designed to prevent a miscarriage of justice if
the [plaintiff fails] to get a proper day in court due to
the various enumerated procedural problems. . . . It
was adopted to avoid hardships arising from an unbend-
ing enforcement of limitation statutes. . . . Its purpose
is to aid the diligent suitor. . . . Its broad and liberal
purpose is not to be frittered away by any narrow con-
struction. The important consideration is that by invok-
ing judicial aid, a litigant gives timely notice to his
adversary of a present purpose to maintain his rights
before the courts.’’ (Internal quotation marks omitted.)
Davis v. Family Dollar Store, 78 Conn. App. 235, 240,
826 A.2d 262 (2003), appeal dismissed, 271 Conn. 655,
859 A.2d 25 (2004).
The plaintiff expressly relies on the portion of § 52-
592 (a) applicable to ‘‘any matter of form.’’ Our Supreme
Court has explained: ‘‘In previous cases considering the
application of the accidental failure of suit statute, we
have declined to adopt an extremely broad construction
of the statute to the effect that, [t]he phrase, any matter
of form, was used in [contradistinction] to matter of
substance, as embracing the real merits of the contro-
versy between the parties. . . . Rather, we have
emphasized that § 52-592 (a) does not authorize the
reinitiation of all actions not tried on . . . [their] mer-
its, and that, [i]n cases where we have either stated or
intimated that the any matter of form portion of § 52-
592 would not be applicable to a subsequent action
brought by a plaintiff, we have concluded that the fail-
ure of the case to be tried on its merits had not resulted
from accident or even simple negligence. . . .
‘‘In concluding that even disciplinary dismissals are
not excluded categorically from the relief afforded by
§ 52-592 (a), we have noted the fact-sensitive nature of
the inquiry and held that, [t]o 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. . . . Indeed, even in the disciplin-
ary context, only egregious conduct will bar recourse
to § 52-592.’’ (Citations omitted; emphasis omitted; foot-
notes omitted; internal quotation marks omitted.)
Plante v. Charlotte Hungerford Hospital, 300 Conn. 33,
49–51, 12 A.3d 885 (2011); see also, e.g., Ruddock v.
Burrowes, 243 Conn. 569, 575–76, 706 A.2d 967 (1998)
(holding that disciplinary dismissal in prior action did
not automatically foreclose plaintiffs from seeking
recourse under accidental failure of suit statute and
discussing balance that court must strike when weigh-
ing remedial nature of statute and ‘‘the responsibility
of the court to establish standards for the processing of
cases and also, when necessary, to enforce compliance
with such standards’’ (internal quotation marks omit-
ted)).
In the present case, the plaintiff was afforded an
opportunity to present evidence and make a factual
showing that the disciplinary dismissal—the judgment
of nonsuit—that occurred in Kuselias I was a matter
of form that fell within the ambit of § 52-592. In her
opposition to the motion for summary judgment, the
plaintiff relied on the procedural history of Kuselias I
and the alleged circumstances of her noncompliance
with discovery in Kuselias I, as detailed in her affidavit.
In its decision rendering summary judgment, the
court accurately characterized the evidence before it
with respect to the plaintiff’s failure to disclose an
expert in Kuselias I. The court explained: ‘‘Failure to
disclose an expert without a viable explanation is not
a matter of form. . . . This rule is particularly applica-
ble in the present legal malpractice case because the
plaintiff must furnish an expert to establish both the
relevant standard of care and causation. . . . Consis-
tent with Practice Book § 13-4, the [plaintiff was bound
to adhere to the discovery deadline ordered by the
court]. . . .
‘‘In the present matter, there is no genuine dispute
of material fact that the plaintiff’s failure to disclose an
expert did not result from excusable neglect, mistake,
or inadvertence. Per the original scheduling order in
Kuselias I, the plaintiff had a September 20, 2019 dead-
line, which the court twice extended, to disclose
experts. . . . On May 5, 2021, at oral argument on the
motion to open, the plaintiff’s counsel informed the
court that, ‘[i]n order for us to put this case on track,
we would have to disclose our expert witness. And we
have not disclosed an expert because at this point the
case is in a [nonsuit state]. I can’t ask the client to pay
for an expert for no reason at this point. But I could
promptly do so within [thirty] to [forty-five] days . . . .’
Counsel also pointed out that Kuselias I had not been
scheduled for trial. Denying the motion [to open], Judge
Wahla elaborated that the plaintiff had not complied
with the expert disclosure deadline because she never
obtained an expert in the first instance, and still had
not done so as of the May 5, 2021 hearing. . . . Rejecting
the plaintiff’s contentions, Judge Wahla chastised the
plaintiff’s counsel: ‘Disclosure is not meant whether it’s
going to be a jury trial or not. Disclosure is meant that
the other party can depose, discern where the case
stands so that the resolution can be brought.’ For her
part, the plaintiff’s only piece of evidence, her affidavit,
does not address her failure to comply with expert
disclosure, but only her purported inability to address
the task of reviewing documents. . . . Nor does the
plaintiff address noncompliance with expert disclosure
in her brief [submitted in opposition to the motion for
summary judgment].’’ (Citations omitted; emphasis
omitted; footnote omitted.)
It was not in dispute that the plaintiff failed to retain,
let alone disclose, an expert witness by the time of the
May 5, 2021 hearing on the motion to open the judgment
of nonsuit in Kuselias I. In light of the explanation
proffered by the plaintiff’s counsel at the May 5, 2021
hearing on the motion to open, the failure to retain an
expert may only be attributed to the plaintiff’s deliber-
ate goal of avoiding costs. This deliberate strategy was
contrary to the plaintiff’s obligations pursuant to Prac-
tice Book § 13-4, which governs the timely disclosure
of expert witnesses, and the multiple deadlines for dis-
closure imposed by the court in Kuselias I. In granting
the motion for summary judgment in Kuselias II, the
court concluded that a genuine issue of material fact
did not exist with respect to the issue of whether ‘‘inten-
tional dilatory conduct’’ led to the judgment of nonsuit
in Kuselias I, and we agree. This is not a circumstance
in which the action was defeated by mistake, inadver-
tence, or excusable neglect; insofar as it was based on
the plaintiff’s failure to disclose an expert, the judgment
of nonsuit resulted from a deliberate disregard for the
court’s authority. Accordingly, the plaintiff did not dem-
onstrate that there was a genuine issue of material fact
with respect to whether the accidental failure of suit
statute applied.10
In addition to examining the judgment of nonsuit as
it related to the plaintiff’s failure to disclose an expert,
the court in Kuselias II also considered the fact that
the judgment of nonsuit rendered in Kuselias I was
based on the plaintiff’s failure to respond to interrogato-
ries and requests for production. It is clear from the
relevant materials on which the defendants relied in
support of their motion for summary judgment, related
to the proceedings in Kuselias I, that the plaintiff
engaged in a pattern of missing deadlines for compli-
ance and then seeking further extensions of time in
which to comply with the discovery requests. The evi-
dence before the court reflects that Judge Wahla, in
denying the plaintiff’s motion to open the judgment of
nonsuit, took issue with the fact that any difficulties
that the plaintiff may have experienced in responding to
these requests were not brought to the court’s attention
until after she failed to comply. The court chastised
the plaintiff for commencing Kuselias I and then engag-
ing in a pattern of disregarding discovery orders. The
court expressly stated that the plaintiff did not act in
good faith with respect to the requests and, for that
reason, it did not find that there was reasonable cause
to grant the motion to open.
In opposing the motion for summary judgment in
Kuselias II, the plaintiff submitted her own affidavit,
in which she attempted to demonstrate that the judg-
ment of nonsuit was rendered as the result of a matter
of form. The reasons set forth in the affidavit, viewed
in the light most favorable to the plaintiff, do not suggest
mistake or inadvertence. The plaintiff does not dispute
that noncompliance occurred but asserts that the non-
compliance was the result of excusable neglect in that
she experienced negative emotional, physical, and psy-
chological effects when she either considered or attempted
to comply with the discovery requests at issue that were
made by the defendants. The plaintiff averred that she
suffered anxiety, hopelessness, panic attacks, sleep dis-
turbances, poor concentration, flashbacks, painful
thoughts, nightmares, increased heart rate, and ‘‘severe
pressure in [her] head.’’ She did not, however, describe
the frequency or duration of these negative events dur-
ing the lengthy period in which she failed to comply
with discovery orders. Rather, the plaintiff stated in her
affidavit that the discovery requests triggered negative
emotions and anxiety because they caused her to recall
unpleasant facts related to her relationship with her
former husband, the representation afforded to her by
Zingaro, and the stipulation that Zingaro negotiated on
her behalf. The plaintiff explained in the affidavit that
she had made some attempts to respond to the discov-
ery requests, but she was ‘‘unable to do so.’’11 The plain-
tiff also averred that she was unaware of the importance
of her timely responses, did not understand at the time
how her emotional issues were affecting her, and did
not make her attorney aware of the reasons why she
was not quickly responding to the requests. The plaintiff
stated in her affidavit that myriad stressors, some of
which were not directly tied to the postdissolution
action, were affecting her emotional well-being, includ-
ing general financial hardship, her beginning a new job,
the onset of the COVID-19 pandemic, the fact that her
children were ‘‘suddenly homeschooling’’ during the
pandemic, and the fact that she decided not to undergo
genetic testing to determine her future likelihood of
suffering from a rare genetic and terminal disorder.12
In granting the motion for summary judgment, the
court properly considered these averments in the light
most favorable to the plaintiff.13 The court concluded,
however, that they did not amount to excusable neglect.
Rather, the court, although acknowledging ‘‘the severity
of the problems the plaintiff encountered,’’ reasoned
that they were largely based on ‘‘the personal stress
and strain engendered by litigation’’ related to an acri-
monious divorce. The law does not provide an easily
applied test to determine what situations amount to
excusable neglect. Our case law merely contrasts
excusable neglect, or matter of form in general, with
conduct that might be deemed to be egregious or con-
duct that suggests gross negligence. Kuselias I does
not reflect an isolated failure to comply with discovery
requests, that a mistake was made, or that a delay
occurred due to an unfortunate misunderstanding or
oversight. Rather, Kuselias I reflects a reoccurring fail-
ure to comply timely with discovery obligations due to
a lack of diligence by the plaintiff and her attorney. We
agree with the court that the events and personal trauma
experienced by the plaintiff when she attempted to
respond to the court’s clear and unambiguous discovery
orders, although difficult for her to endure, did not
amount to excusable neglect. The evidence before the
court in connection with the motion for summary judg-
ment reflects a pattern of the plaintiff attempting to
comply with the orders at issue, repeatedly being ‘‘trig-
gered’’ by the information related to her former husband
and Zingaro, and then simply failing to comply with the
orders. The plaintiff’s affidavit, viewed in the light most
favorable to her, reflects that compliance was difficult,
but not impossible, and that, although she was mindful
that she was having difficulty prosecuting the action
that she had initiated, the result of the plaintiff’s efforts
was not to comply with the court’s orders. The plaintiff
describes numerous obstacles to justify her failure to
respond to the discovery requests but does not describe
a constant inability that made compliance impossible
over the lengthy period of time in which noncompliance
occurred in this case. Like the trial court, we note that
neither the record nor the plaintiff’s affidavit suggests
that the plaintiff’s counsel took any steps to assist the
plaintiff or to counsel her with respect to the effect of
her failure to comply with clear and unambiguous court
orders, let alone communicate these reasons to the
court in a timely manner prior to missed deadlines.
Instead, the plaintiff, in her affidavit, averred that ‘‘coun-
sel did not make [her] aware [of] the importance of the
responses’’ and that ‘‘[her] attorney did not understand
how to help [her].’’
The facts of this case are analogous to those that
were at issue in Estela v. Bristol Hospital, Inc., 179
Conn. App. 196, 180 A.3d 595 (2018) (Estela II). Estela
II followed a prior action between the parties; Estela
v. Bristol Hospital, Inc., Superior Court, judicial district
of New Britain, Docket No. CV-XX-XXXXXXX-S (Estela I);
that resulted in a judgment of nonsuit as a result of the
plaintiff’s discovery noncompliance. Id., 200, 210. The
plaintiff in Estela II, relying on the accidental failure
of suit statute to avoid a claim that the action was time
barred, commenced a second, nearly identical action
against the same defendant that he had named in Estela
I. Id., 201–202. The defendant filed a motion for sum-
mary judgment in Estela II on the ground that the action
was time barred. Id. Later, the court granted the defen-
dant’s motion to bifurcate the trial to determine whether
§ 52-592 saved the plaintiff’s case. Id., 205–206. The trial
court, concluding that Estela I was not dismissed as a
matter of form, determined that the plaintiff could not
avail himself of the remedial benefit of § 52-592. Id.,
202–203. An appeal to this court followed. Id., 203.
This court, in Estela II, noted that the trial court
properly had considered the plaintiff’s justifications for
the discovery noncompliance that had led to the disci-
plinary dismissal in Estela I and had properly consid-
ered whether the plaintiff’s conduct amounted to a mat-
ter of form in accordance with the analysis of our
Supreme Court in Ruddock v. Burrowes, supra, 243
Conn. 575–76. Estela v. Bristol Hospital, Inc., supra, 179
Conn. App. 215. After conducting a thorough analysis
of the evidence presented to the trial court in connec-
tion with the defendant’s motion for summary judgment
in Estela II, this court agreed with the trial court that
§ 52-592 did not apply because the plaintiff failed to
demonstrate that the noncompliance at issue in Estela
I was the result of mistake, inadvertence, or excusable
neglect.14 Id., 218. As was the case in Estela II, in the
present case, the disciplinary dismissal followed the
plaintiff’s repeated failures to comply with the court’s
discovery orders and, at least to the extent that it was
based on the strategic decision of the plaintiff’s counsel
not to disclose an expert as a cost saving measure, was
purposeful in nature.
We are mindful of the difficulties that the plaintiff
experienced in her attempts to comply with discovery
in Kuselias I, but there is an element of lackadaisical
behavior with respect to the need to either comply with
orders or to promptly seek an extension of time once
it becomes apparent that compliance is impossible. See,
e.g., Gillum v. Yale University, 62 Conn. App. 775, 783,
787, 773 A.2d 986 (concluding that § 52-592 (a) did not
apply and describing conduct in first case as ‘‘ ‘lackadai-
sical behavior by the plaintiffs at every turn’ ’’), cert.
denied, 256 Conn. 929, 776 A.2d 1146 (2001).
In light of the foregoing, we conclude that the court
correctly examined the evidence before it and correctly
determined that a genuine issue of material fact did not
exist with respect to whether the conduct that led to
the judgment of nonsuit in Kuselias I was a matter of
form. Accordingly, we conclude that the court properly
rendered summary judgment in favor of the defendants
because the plaintiff was unable to demonstrate that
she was entitled to the remedial benefit of the accidental
failure of suit statute.15
II
Next, the plaintiff claims that the court erred in deny-
ing her motion to reargue and reconsider its ruling on
the motion for summary judgment. We are not per-
suaded.
As stated previously in this opinion, after the court
rendered summary judgment in favor of the defendants
with respect to all three counts of the plaintiff’s com-
plaint, the plaintiff filed a motion to reargue and recon-
sider pursuant to Practice Book § 11-11. The plaintiff
argued that the court had misapprehended the facts
and misapplied the law. Specifically, the plaintiff argued
that ‘‘[t]he court failed to apprehend or address the
facts establishing that the plaintiff in fact cooperated
fully in discovery in the underlying action. She was
deposed, provided all requested documents, and
responded to interrogatories. These facts alone estab-
lish a genuine issue of material fact sufficient to deny
the motion for summary judgment.’’
In connection with the motion to reargue and recon-
sider, the plaintiff submitted the affidavit of Votre, the
attorney who represented her in Kuselias I and Kusel-
ias II. In his seven page affidavit, which sets forth fifty-
four separate averments, Votre stated that the plaintiff
‘‘in fact substantially complied’’ with the discovery
requests made by the defendants in Kuselias I but that
the defendants had ‘‘twisted the facts before this court’’
to demonstrate otherwise. The plaintiff also submitted
what is captioned as an ‘‘amended and corrected affida-
vit . . . in support of motion to reargue.’’ In the plain-
tiff’s affidavit, which is eleven pages long and sets forth
seventy-three separately numbered averments, the
plaintiff stated that she had ‘‘in fact substantially com-
plied, if not completely complied, with the discovery
requests in [Kuselias I]. The defendants’ arguments
twisted the facts before this court . . . .’’ She also
averred that she had ‘‘produced in an organized manner
nearly 6000 pages of documents in full compliance with
the defendants’ production requests long before any
nonsuit was entered.’’ The plaintiff also averred that,
on December 14 and 29, 2020, she had responded to
the defendants’ second set of interrogatories, which
was nearly a duplicate of the first set of interrogatories
that had been submitted to her.
The defendants objected to the plaintiff’s motion on
several grounds, including that (1) the plaintiff’s conten-
tions were ‘‘blatantly false’’ and the record plainly
revealed that the plaintiff had ignored all deadlines and
discovery orders until after the judgment of nonsuit
had been rendered against her in October, 2020, (2) the
motion was an improper attempt by the plaintiff to
obtain ‘‘ ‘a second bite at the apple,’ ’’ and (3) that the
motion left unchallenged the court’s reliance on the
fact that the plaintiff failed to disclose an expert. The
defendants argued that the motion should be denied
because the plaintiff had failed to set forth any error
made by the court or any controlling legal principle that
it had overlooked in granting the motion for summary
judgment.
Thereafter, the plaintiff filed a reply to the defen-
dants’ objection. At this juncture, the plaintiff argued
that the record did not reflect that the court, in render-
ing a judgment of nonsuit, relied on the fact that the
plaintiff had failed to disclose an expert. The plaintiff
argued that ‘‘expert disclosure has nothing to do with
the status of this case and . . . the court was misled
by the defendants [when it granted the motion for sum-
mary judgment].’’ By order dated October 11, 2022, the
court summarily denied the motion to reargue and
reconsider.
‘‘The standard of review regarding challenges to a
court’s ruling on a motion for reconsideration is abuse
of discretion. As with any discretionary action of the
trial court . . . the ultimate [question for appellate
review] is whether the trial court could have reasonably
concluded as it did.’’ (Internal quotation marks omit-
ted.) Fain v. Benak, 205 Conn. App. 734, 746, 258 A.3d
112 (2021), appeal dismissed, 345 Conn. 912, 283 A.3d
980 (2022).
Even though the plaintiff captioned her motion as a
‘‘motion to reconsider’’ that was brought pursuant to
Practice Book § 11-11, in the very first paragraph of the
motion the plaintiff states that she ‘‘moves for reconsid-
eration and reargument pursuant to Practice Book
§ 11-11.’’ (Emphasis added.) This court has observed
that ‘‘[m]otions for reargument and motions for recon-
sideration are nearly identical in purpose. [T]he purpose
of a reargument is . . . to demonstrate to the court
that there is some decision or some principle of law
which would have a controlling effect, and which has
been overlooked, or that there has been a misapprehen-
sion of facts. . . . A reconsideration implies reexami-
nation and possibly a different decision by the [court]
which initially decided it. . . . While a modification
hearing entails the presentation of evidence of a sub-
stantial change in circumstances, a reconsideration
hearing involves consideration of the trial evidence in
light of outside factors such as new law, a miscalcula-
tion or a misapplication of the law. . . . [Reargument]
may be used to address alleged inconsistencies in the
trial court’s memorandum of decision as well as claims
of law that the [movant] claimed were not addressed
by the court. . . . [A] motion to reargue [however] is
not to be used as an opportunity to have a second bite
of the apple or to present additional cases or briefs
which could have been presented at the time of the
original argument.’’ (Citation omitted; footnote omitted;
internal quotation marks omitted.) Antonio A. v. Com-
missioner of Correction, 205 Conn. App. 46, 74–75,
256 A.3d 684, cert. denied, 339 Conn. 909, 261 A.3d
744 (2021).
The plaintiff’s motion to reargue and reconsider is the
quintessential example of a party seeking the proverbial
second bite of the apple. The record reflects that the
plaintiff has not used the motion for one of the proper
purposes discussed previously in this opinion. Rather,
the plaintiff used the motion to reargue and reconsider
to present a different argument than that on which she
had consistently relied when opposing the motion for
judgment of nonsuit in Kuselias I, when seeking to
open the judgment of nonsuit in Kuselias I, and in
opposing the motion for summary judgment in Kuselias
II. Moreover, in connection with the motion to reargue
and reconsider, the plaintiff submitted evidence that
contradicted the evidence on which she had relied pre-
viously, particularly in opposing the defendants’ motion
for summary judgment.16 The nature of the new evi-
dence the plaintiff presented, which unquestionably
pertained to events that predated the judgment of non-
suit, compels the conclusion that it cannot be consid-
ered newly discovered. Under our rules of practice, the
time to submit relevant evidence in connection with a
motion in support of or in opposition to a motion for
summary judgment is before the motion is heard, not
following an adverse ruling on the motion; Practice
Book § 17-45; and, unless a proper showing has been
made that the evidence could not have been discovered
by the exercise of due diligence, a court acts well within
its discretion to refuse to consider untimely evidence
in this regard. See, e.g., Durkin Village Plainville, LLC
v. Cunningham, 97 Conn. App. 640, 656, 905 A.2d 1256(2006). For these reasons, we conclude that the plaintiff
is unable to demonstrate that the court has abused
its discretion in denying her motion to reargue and
reconsider.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The alleged fraudulent conduct was related to the efforts of the plaintiff’s
former husband to conceal various types of information related to matters
including his assets, employment, and earning capacity.
2
‘‘In Oneglia v. Oneglia, 14 Conn. App. 267, 269–70, 540 A.2d 713 (1988),
this court held that, in considering a motion to open on the basis of fraud,
a court must first make a preliminary determination of whether there is
probable cause to believe that the judgment was obtained by fraud. Oneglia
and its progeny are grounded in the principle of the finality of judgments.
. . . [T]he finality of judgments principle recognizes the interest of the
public as well as that of the parties [that] there be fixed a time after the
expiration of which the controversy is to be regarded as settled and the
parties freed of obligations to act further by virtue of having been summoned
into or having appeared in the case. . . . Without such a rule, no judgment
could be relied on. . . . Oneglia carefully balanced that interest in finality
with the reality that in some situations, the principle of protection of the
finality of judgments must give way to the principle of fairness and equity.
. . . The court in Oneglia thus ratified the gatekeeping mechanism
employed by the trial court, whereby a court presented with a motion to
open by a party alleging fraud in a postjudgment dissolution proceeding
conducts a preliminary hearing to determine whether the allegations are
substantiated. . . . [I]f the plaintiff was able to substantiate her allegations
of fraud beyond mere suspicion, then the court [properly] would open the
judgment for the limited purpose of discovery, and would later issue an
ultimate decision on the motion to open after discovery had been completed
and another hearing held. . . . This preliminary hearing is not intended to
be a full scale trial on the merits of the [moving party’s] claim. The [moving
party] does not have to establish that he [or she] will prevail, only that there
is probable cause to sustain the validity of the claim.’’ (Citation omitted;
footnote omitted; internal quotation marks omitted.) Karen v. Loftus, 210
Conn. App. 289, 297–98, 270 A.3d 126 (2022).
3
Specifically, the plaintiff alleged that the defendants failed to verify her
former husband’s actual income, his bonuses, his employment records, the
value of his legal claims against his former employer, his tax returns, copies
of his mortgage applications, his past and current bank records, and records
regarding his pensions, his saving plans, and his hidden assets.
4
The executive order provides in relevant part: ‘‘I hereby suspend, for the
duration of this [COVID-19] public health and civil preparedness emergency,
unless earlier modified or terminated by me, all statutory . . . (3) time
requirements or deadlines related to the Supreme, Appellate, and Superior
courts . . . .’’ (Citations omitted.) Executive Order No. 7G (March 19, 2020).
5
In this opinion, we will refer to the present action as Kuselias II.
6
In their motion for summary judgment, the defendants also argued that
they were entitled to summary judgment as a matter of law with respect
to the breach of contract cause of action as alleged in count two of the
plaintiff’s complaint ‘‘because there exists no issue of fact that the defendants
did not breach an agreement to achieve a particular outcome.’’ The court
agreed with this argument. Because the plaintiff does not challenge that
ruling in this appeal, we need not address the propriety of that ruling and,
therefore, we will confine our analysis to the court’s disposition of counts
one and three of the complaint.
7
We note that, in their memorandum of law in support of their motion
for summary judgment, the defendants also argued that the undisputed facts
demonstrated that the plaintiff was unable to rely on the executive order
that was issued by Governor Lamont on March 19, 2020. The executive
order, among other things, suspended certain statutes of limitations during
the COVID-19 pandemic. See footnote 4 of this opinion. The defendants
argued that it was undisputed that the plaintiff terminated their representa-
tion of her no later than May 7, 2016. By virtue of the applicable statutes
of limitations, the plaintiff thus had to have commenced the present cause
of action on or before May 7, 2019. The defendants argued that, as a matter
of law, the executive order, which did not come into existence until after
the tolling of the applicable statutes of limitations, could not be applied to
save the untimely claims. In the plaintiff’s opposition to the defendant’s
motion for summary judgment, she did not dispute the defendants’ argument.
In the court’s memorandum of decision granting the defendants’ motion for
summary judgment, it concluded that the executive order on which the
plaintiff had relied as a special defense was ‘‘wholly irrelevant to the issues
presently before the court.’’ Because the plaintiff does not challenge that
aspect of the court’s decision in this appeal, we need not address the propri-
ety of that ruling.
8
The court’s order, dated February 10, 2020, stated: ‘‘Compliance via
written discovery and disclosure of the plaintiff’s expert is ordered on or
before [March 16, 2020]. If the moving party does not receive compliance
by that date, the moving party may file a motion for judgment of nonsuit
referring to this order. Absent proof of compliance on file before the motion
appears on this short calendar, the motion will be granted by the court and
judgment will enter.’’
9
General Statutes § 52-212 (a) provides in relevant part: ‘‘Any judgment
rendered or decree passed upon a default or nonsuit in the Superior Court
may be set aside, within four months following the date on which the notice
of judgment or decree was sent, and the case reinstated on the docket . . .
upon the complaint or written motion of any party or person prejudiced
thereby, showing reasonable cause . . . that the plaintiff or defendant was
prevented by mistake, accident, or other reasonable cause from prosecuting
the action or making the defense.’’
10
The plaintiff takes issue with the court’s reliance on the fact that, in
Kuselias I, the plaintiff did not disclose an expert. Specifically, the plaintiff
asserts that in neither the motion for judgment of nonsuit nor the motion
for summary judgment did the defendants raise that issue. This argument
is not persuasive.
Regardless of whether the defendants moved for a judgment of nonsuit
on the ground that the discovery violations included the plaintiff’s failure
to disclose an expert, the fact remains that this was a topic of the hearing
on the motion and it cannot be disputed that it was one of the grounds on
which the court relied in rendering the judgment of nonsuit. Moreover, in
the defendants’ memorandum of law in support of their motion for summary
judgment, the defendants repeatedly relied on this ground.
11
The plaintiff averred that she ‘‘had a very difficult time during this
process and [her] attorney did not understand how to help [her].’’ The
plaintiff recalled that she attempted to ‘‘get through the documentation . . .
in short spurts,’’ and she ‘‘tried very hard to sort through the information
as fast as possible,’’ and that the feelings of trauma ‘‘ultimately disrupted
[her] ability to review the files.’’
12
In her affidavit, the plaintiff stated that, at the time that she executed
the affidavit on May 14, 2022, she was receiving treatment for ‘‘the situational
trauma’’ related to the agreement that Zingaro had negotiated on her behalf.
She also averred that she had begun a new job on April 11, 2022, and
that the new employment offered her ‘‘greater flexibility, allowing [her] the
opportunity to address this situation in a timely manner here forward.’’
Thus, the plaintiff asserted that she was now ‘‘ready’’ to prosecute the action.
13
In her brief to this court, the plaintiff argues that ‘‘[t]he court ignored
all of the actions taken successfully to comply with discovery.’’ The plaintiff
also asserts that the court did not properly analyze the severity of the
conduct giving rise to the disciplinary dismissal in Kuselias I and that the
court ‘‘ignored [her] submissions.’’ These bald assertions are belied by even
a cursory reading of the court’s thorough and well researched decision. The
decision reflects that the court carefully evaluated the averments in the
plaintiff’s affidavit along with the other evidence properly before it at the
time that it considered the motion for summary judgment. Moreover, the
record plainly reflects that the court did not summarily conclude that the
disciplinary dismissal in Kuselias I precluded the plaintiff from relying on
§ 52-592 but, rather, that the court properly analyzed the nature of the
conduct that led to the disciplinary dismissal in order to determine if a
genuine issue of material fact existed as to whether it could be considered
a matter of form.
14
Following an appeal in Estela II, this court reasoned that ‘‘[t]he record
readily supports the court’s factual findings underlying its determination
that the dismissal of Estela I did not occur in circumstances such as ‘mistake,
inadvertence or excusable neglect.’ In Estela I, the plaintiff engaged in a
pattern of delayed conduct by responding late to discovery requests, filing
untimely objections, and filing notices of compliance after the filing of the
defendant’s motion for a judgment of nonsuit. The plaintiff failed to comply
with two court orders, which ordered him to comply with outstanding
discovery requests for his 2002–2004 tax returns and his expert report, by
February 29, 2013, and March 29, 2013, respectively.
‘‘As justification for his noncompliance, the plaintiff represented to the
court that he could not comply with the defendant’s request to provide the
expert report absent information from the defendant that had not yet been
provided. As the court noted, however, the plaintiff failed to explain why
he did not file a motion for extension of time in Estela I while waiting for
this purportedly essential information from the defendant. The plaintiff
also asserted that he could not comply with the discovery request for his
2002–2004 tax returns because he did not have copies, and he was waiting
on copies to be provided by the Internal Revenue Service. The request for
the tax returns, however, was not sent to the Internal Revenue Service until
November 5, 2013—several days after the court in Estela I rendered the
judgment of nonsuit on October 28, 2013, and months after the court-ordered
deadlines to comply. Further, as the court noted, the plaintiff could have
provided the defendant with an authorization to contact the Internal Revenue
Service itself, but failed to do so. Moreover, the plaintiff even admitted in
his motion to open the judgment of nonsuit in Estela I that he ‘purposefully
held off on continuing his review and analysis of his own documents to cull
out relevant information because he expected that the request[ed] patient
information would be produced by the defendant’’ . . . further undercutting
any argument that the nonsuit resulted from ‘mistake, inadvertence or excus-
able neglect.’
‘‘Also as justification for his conduct in Estela I, the plaintiff argued that
he complied with the ‘reasonable meaning’ of the court’s orders. Specifically,
the plaintiff represented to the court . . . that the parties had come to an
agreement amongst themselves to extend the deadline for compliance. ‘In
Connecticut, [however] the general rule is that a court order must be fol-
lowed until it has been modified or successfully challenged. . . . Our
Supreme Court repeatedly has advised parties against engaging in self-help
and has stressed that an order of the court must be obeyed until it has
been modified or successfully challenged.’ . . . Worth v. Commissioner
of Transportation, 135 Conn. App. 506, 520–21, 523, 43 A.3d 199 (rejecting
plaintiff’s claim that failure to comply with court order was ‘excusable
neglect’ and affirming trial court’s finding that plaintiff’s case was not saved
by § 52-592), cert. denied, 305 Conn. 919, 47 A.3d 389 (2012). Thus, even if
the parties had come to an agreement between themselves to extend the
discovery deadline, the plaintiff needed to first inform the court of the
agreement and have the court orders modified. The plaintiff failed to do
so.’’ (Emphasis omitted; footnotes omitted.) Estela v. Bristol Hospital, Inc.,
supra, 179 Conn. App. 216–18.
15
As part of her appellate argument in connection with this claim, the
plaintiff urges us to consider the facts set forth in her ‘‘amended and cor-
rected affidavit’’ and an affidavit from her attorney that were submitted in
connection with her motion to reargue and reconsider. For the reasons
articulated in part II of this opinion, we do not consider these submissions
that were not before the trial court at the time that it rendered summary
judgment in favor of the defendants. Setting aside these untimely submis-
sions, there was no evidence before the court that a genuine issue of material
fact existed with respect to whether the plaintiff had complied with the
outstanding discovery requests before the court rendered a judgment of
nonsuit in Kuselias I. It bears repeating that the evidence before the court
at the time that it rendered summary judgment reflected that, at the time
that the court rendered the judgment of nonsuit, noncompliance had
occurred, and the plaintiff and her attorney were attempting, at that time,
to characterize the conduct giving rise to the noncompliance as a matter
of form.
16
As we previously discussed in this opinion, the court had unambiguous
evidence before it concerning the fact that the plaintiff had failed to comply
with its discovery orders. The plaintiff’s affidavit was replete with her expla-
nation for why she had been unable to comply with these orders. The
plaintiff’s counsel, for his part, did not disagree that an expert had not been
disclosed but, instead, explained why, even at the time of the hearing on
the motion for judgment of nonsuit, the plaintiff had not disclosed an expert.