DocketNumber: No. 385251
Citation Numbers: 1992 Conn. Super. Ct. 5396, 7 Conn. Super. Ct. 897
Judges: <footnote_body>[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]</footnote_body> BURNS, JUDGE
Filed Date: 6/16/1992
Status: Non-Precedential
Modified Date: 4/17/2021
According to the plaintiff's April 19, 1991 revised complaint, the plaintiff, Earl A. Reichle, owned a barn located in South Windsor, Connecticut ("the Town,") and all of the personal property contained therein. On July 25, 1987, a portion of the barn was blown into the road by a storm. Thereafter, officers or employees of the Town employed J H Slater Construction Company to move the barn, and Mitchell Trucking, Inc. ("Mitchell Trucking") to raze the entire barn. The Town employed police officers to block the road while the barn was being moved and razed, and public works employees to direct the process.
In an earlier action, commenced on July 28, 1988, the plaintiff filed a three count amended complaint against the Town and Mitchell Trucking. The first count alleged that Mitchell Trucking was negligent in razing the plaintiff's barn and in destroying its CT Page 5397 contents; the second count sought indemnification from the Town under General Statutes
On October 9, 1990, the plaintiff commenced the instant suit by service of process, naming, in addition to the Town and Mitchell Trucking, Thomas P. D'Auria, the town building inspector, police officers Thomas Hart and Gerald S. Lewis, and public works employees Melvin Stead and John Pizzoni. This suit is brought in two counts, the first alleging the negligence of Mitchell Trucking and the Town employees, and the second claiming indemnification from the Town under General Statutes
All defendants, with the exception of Mitchell Trucking,2 have moved for summary judgment on the grounds of governmental immunity and the statutes of limitation contained in General Statutes
"Practice Book 384 provides that summary judgment `shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law."' Connecticut National Bank v. Great Neck Development Co.,
The defendants argue that the applicable limitations period, CT Page 5398 two years under either General Statutes
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.
General Statutes
In the original action, the court granted a motion to strike count two of the complaint, stating that municipal liability under General Statutes
Most germane to the instant case is Perzanowski v. New Britain, supra, where the plaintiff had originally brought an action in federal court under
Contrary authority may be found in Kliger v. Heyman, 4 CTLR 225 (Jun. 17, 1991, Fuller, J.). In Kliger, the defendants in the earlier action owned the real property upon which the plaintiff was injured. The court in the original action granted the defendants' motion for summary judgment because the owners had leased the premises to a third party not named in the complaint, finding that the lessee, and not the owners, had complete control of the property. Id., 225. The plaintiff then brought an action against the lessee under General Statutes
Based on the foregoing, it is clear that the weight of authority holds that where a lawsuit fails for the failure to state a claim upon which relief may be granted, such a lawsuit does not fail for the "failure to name the right person as defendant." See Perzanowski v. New Britain, supra, 507. The weight of authority holds that in order to be saved by General Statutes
In the motion to strike the second count of the plaintiff's complaint in the original action, the court, Corrigan, J., held that the plaintiff's claims against the defendant failed to state a cause of action under General Statutes
"Where two distinct causes of action arise from the same wrong, each is controlled by the statute of limitations appropriate to it." Perzanowski v. New Britain, supra, 506 (citations omitted). The plaintiff's first count against Mitchell Trucking and the individual defendants, sounding in negligence, is governed by the two year limitations period contained in General Statutes
The pleadings, affidavit, and deposition transcript unequivocally show that the alleged actionable conduct occurred on July 25, 1987, and that the instant action was not commenced until October 9, 1990, beyond the two year limitation period. Therefore, the defendant is entitled to judgment as a matter of law. Zapata v. Burns, supra, 568-70; Burns v. Hartford Hospital, supra, 455-469; Barnes v. Schlein, supra, 738.
Based on the foregoing, the motion for summary judgment on the complaint is granted as to the Town of South Windsor and as to defendants D'Auria, Hart, Lewis, Stead and Pizzoni. Because the statute of limitations is dispositive of the case, it is not necessary for the court to address the defendant's alternative ground of governmental immunity.