Mollica v. Toohey
2012 WL 1004303
Conn. App. Ct.2012Background
- Plaintiffs allege mold and water intrusion on premises at 108 Howe Street, Shelton, owned by Toohey, caused injuries starting in 1999.
- Defendant answered with two special defenses: contributorily negligent Mollica and statute-of-limitations defense under § 52-584.
- Plaintiffs filed suit on December 21, 2005; motion for summary judgment by Toohey followed on December 29, 2009.
- Plaintiffs argued tolling under the continuing course of conduct doctrine after defendant failed to remedy conditions.
- Trial court granted summary judgment, finding discovery of injury in 2001 and action commenced in 2005 was outside § 52-584 two-year window and that continuing conduct doctrine does not apply post-discovery.
- On appeal, plaintiffs contend the tolling doctrine applies; court disagrees and affirms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the action was timely under § 52-584 by discovery rule | Mollica | Toohey | Action untimely; § 52-584 discovery rule not satisfied |
| Whether the continuing course of conduct tolls the statute after discovery | Mollica | Toohey | Not tolled after discovery; inapplicable to discovery period |
| Whether summary judgment was proper | Mollica | Toohey | Summary judgment affirmed |
Key Cases Cited
- Rosato v. Mascardo, 82 Conn.App. 396, 844 A.2d 893 (Conn. App. 2004) (discovery rule and timing under § 52-584)
- Mountaindale Condominium Assn., Inc. v. Zappone, 59 Conn.App. 311, 757 A.2d 608 (Conn. App. 2000) (continuing course of conduct doctrine limited to pre-discovery period)
- Rivera v. Fairbank Management Properties, Inc., 45 Conn. Supp. 154, 703 A.2d 808 (Conn. Sup. Ct. 1997) (continuing course of conduct doctrine relevance)
- Beckenstein Enterprises-Prestige Park, LLC v. Keller, 115 Conn.App. 680, 974 A.2d 764 (Conn. App. 2009) (pleading requirement for continuing course of conduct defense)
- Bellemare v. Wachovia Mortgage Corp., 94 Conn.App. 593, 894 A.2d 335 (Conn. App. 2006) (review of continuing course doctrine despite pleading issues)
- Sinotte v. Waterbury, 121 Conn.App. 420, 995 A.2d 131 (Conn. App. 2010) (continuing course doctrine limits and prerequisites)
- Doty v. Mucci, 238 Conn. 800, 679 A.2d 945 (Conn. 1996) (statute of limitations and tolling principles)
- Rosenfield v. I. David Marder & Associates, LLC, 110 Conn.App. 679, 956 A.2d 581 (Conn. App. 2008) (summary judgment when statute of limitations issue is dispositive)