IELLO v. Weiner
129 Conn. App. 359
Conn. App. Ct.2011Background
- Plaintiff Iello filed a dental malpractice action in 2003 against Epstein and Family Dental Group for negligent postoperative care.
- In 2006, Iello voluntarily withdrew the first action in its entirety.
- In 2007, Iello commenced a second action against Wiener (Weiner) and Family Dental asserting negligence in postoperative care from the same dental surgery.
- Iello conceded Epstein and Wiener provided postoperative care; the operative theory in both actions was negligence.
- Defendants moved for summary judgment arguing § 52-593 cannot save the second action because the first action named a right person for the theory of negligence.
- The trial court granted summary judgment for Wiener after relying on Billerback v. Cerminara; the court had previously granted Family Dental summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does § 52-593 save the second action from time bar? | Iello: § 52-593 can save the second action if a right person was not named in the first action. | Weiner: because Epstein was a proper defendant for the first-action theory, § 52-593 cannot save the second action. | No; § 52-593 does not apply because Epstein was the right person for the first action's theory. |
| Was Epstein a proper defendant for the first action's negligence theory? | Epstein adequately pleaded as proper defendant for negligence. | Epstein was not properly aligned with the second-action defendant for the theory as pleaded. | Epstein was a proper defendant for the first action's negligence theory; thus no saving by § 52-593. |
Key Cases Cited
- Cogan v. Chase Manhattan Auto Financial Corp., 276 Conn. 1 (2005) (defines 'right person' for § 52-593)
- Billerback v. Cerminara, 72 Conn.App. 302 (2002) (used to justify summary judgment grounding in § 52-593 context)
- Krevis v. Bridgeport, 80 Conn.App. 432 (2003) (plenary review standard for summary judgment)