224 Conn.App. 192
Conn. App. Ct.2024Background
- Plaintiff Kristen Kuselias sued her former attorneys, Zingaro & Cretella, LLC, and Eugene J. Zingaro, for legal malpractice, breach of contract, and negligent misrepresentation arising from their representation during postdissolution (divorce-related) proceedings.
- In a prior, nearly identical suit (“Kuselias I”), the court entered a judgment of nonsuit against Kuselias for failing to comply with discovery orders, including failure to disclose an expert witness.
- The plaintiff moved to open the judgment in the prior suit citing psychological stress as the reason for her noncompliance; the court denied the motion, finding the noncompliance deliberate and not excusable neglect.
- The present action (“Kuselias II”) was brought under Connecticut’s accidental failure of suit statute, § 52-592, intended to save otherwise time-barred claims not previously decided on the merits due to “matters of form.”
- Defendants moved for summary judgment, arguing the first suit was dismissed for egregious, disciplinary reasons—not a “matter of form”—and thus § 52-592 could not revive her claims; the court agreed and also denied plaintiff’s motion to reargue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of §52-592 "accidental failure" | Nonsuit was a "matter of form" due to excusable neglect (psychological distress) | Judgment resulted from deliberate noncompliance and intentional delay | Section 52-592 not applicable; plaintiff’s conduct was egregious, not excusable neglect |
| Statue of limitations for malpractice and fraud | Claims timely via § 52-592 saving statute | Claims are otherwise time-barred; § 52-592 does not apply | Claims are time-barred; § 52-592 cannot revive them |
| Summary judgment for failure to show excusable neglect | Plaintiff made efforts but was impaired by anxiety | Plaintiff consciously avoided compliance, especially expert disclosure | No genuine issue of material fact; summary judgment proper |
| Motion to reargue and reconsider denial | Court misapprehended facts, overlooked compliance | Motion is a second attempt, evidence is not new, should not be considered | Denial not abuse of discretion; no controlling law/facts overlooked |
Key Cases Cited
- Plante v. Charlotte Hungerford Hospital, 300 Conn. 33 (Ct. 2011) (clarifies that § 52-592 applies only to non-egregious conduct such as mistake, inadvertence, or excusable neglect in disciplinary dismissals)
- Ruddock v. Burrowes, 243 Conn. 569 (Ct. 1998) (sets the framework for when a disciplinary dismissal may be relitigated under the accidental failure of suit statute)
- Estela v. Bristol Hospital, Inc., 179 Conn. App. 196 (Ct. App. 2018) (repeated noncompliance and lack of diligence are not "matters of form" under §52-592)