Cardin v. Frankel, No. Cv91 050 35 25 (Jan. 6, 1992) , 1992 Conn. Super. Ct. 19 ( 1992 )

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION ON MOTION TO DISMISS This case is companion to Lovett v. Department of Transportation, Docket No. 50 35 26, wherein the state and the White Oak Construction Company are being sued by plaintiff Ronald A. Cardin for injuries sustained in a motorcycle crash which occurred in September, 1985 in Waterbury, Connecticut. The defendants have moved to dismiss this action on the basis that the claim does not fall within the accidental failure of suit statute, General Statutes 52-592.

Where a motion to dismiss does not seek to introduce facts outside the record, it admits all well-pleaded facts, the complaint being constructed most favorably to the plaintiff. Duguay v. Hopkins, 191 Conn. 222, 464 A.2d 45 (1983). The defendants' argument in support of their motion is that the plaintiff's conduct in the original action was "egregious" and, therefore, not within the scope of actions permitted by section52-592, citing Skibeck v. Avon, 24 Conn. App. 239, 587 A.2d 166 (1991). The Skibeck case was originally brought ten years before the subsequent suit. The first dismissal was granted eight years earlier and then opened; subsequently the case was dismissed and opened again. The original action was finally CT Page 20 dismissed eight years after suit was first brought, and the court held that because inaction so permeated the case, the action could not be saved by section 52-592.

The only well-pleaded facts relating to the applicability of section 52-592 here are that the plaintiff filed a complaint in the original action in October 1986, that the original action was dismissed in December 1990, and that the instant action was commenced on or about November 5, 1991. These facts, standing alone and construed in the light most favorable to the non-moving party, are insufficient to support the conclusion that, as a matter of law, this action does not come within the "saving" provision of section 52-592.

Accordingly, the defendants' motion is denied.

SCHALLER, J.