Tillman v. Ginter Associates, Inc., No. Cv94 31 49 88 S (Oct. 4, 1994)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION RE: MOTION TO DISMISS (No. 101) Defendants Ginter Associates, Inc., and The Chocolate Factory Associates, Ltd. have moved to dismiss this case which was filed under the accidental failure of suit statute, General Statutes § 52-592. The defendants do not contend the plaintiff lacks the right to bring a second action under § 52-592. Instead, they argue the plaintiff has failed to file the second action within one year after a judgment of non-suit was entered in the case ofJimmie Tillman v. Ginter Associates, Inc., et al, CV92-0292769. For the reasons stated below, the motion is denied.

The defendants' motion to dismiss is predicated on the assumption the one year period for filing a second action under CT Page 10310 § 52-592 commenced on June 8, 1993. The defendants contend a judgment of non-suit was entered on this date.

The only judgment entered by the court in CV92-0292768 was a judgment dismissing the action under Practice Book § 251. The judgment was entered on December 10, 1993, which is less than one year prior to the plaintiff's filing of this second action. The court never entered a judgment of non-suit. Instead, the court ordered plaintiff to file a revised complaint by June 8, 1993. The court also ordered plaintiff to comply with another defendant's discovery request "within 2 wks or nonsuit enters." The entry of a judgment on non-suit for the plaintiff's failing to comply with these orders would have required further action by the court. Further action was never requested by the parties nor taken by the court.

The motion to dismiss is denied.

THIM, JUDGE