Cortes v. Cotton, No. 11618

CourtAppellate Court of Connecticut
Writing for the CourtLANDAU
Citation31 Conn.App. 569,626 A.2d 1306
PartiesMarilyn CORTES et al. v. John P. COTTON, Jr.
Docket NumberNo. 11618
Decision Date08 June 1993

Page 1306

626 A.2d 1306
31 Conn.App. 569
Marilyn CORTES et al.
v.
John P. COTTON, Jr.
No. 11618.
Appellate Court of Connecticut.
Argued March 29, 1993.
Decided June 8, 1993.

Page 1307

Leonard C. Reizfeld, New Haven, for appellants (plaintiffs).

Kevin R. Murphy, with whom, on the brief, was Dennis M. Laccavole, Bridgeport, for appellee (defendant).

Before FOTI, LAVERY and LANDAU, JJ.

[31 Conn.App. 570] LANDAU, Judge.

In this action in negligence, the plaintiffs 1 appeal from the judgment of the trial court (1) granting the defendant's motion for summary judgment, and (2) denying the plaintiffs' application for waiver of fees. 2 The principal issue on appeal is whether the plaintiffs produced sufficient evidence of the defendant's absence from the state so as to survive his motion for summary judgment under General Statutes § 52-584. 3

Page 1308

The following facts are relevant to this appeal. The named plaintiff, Marilyn Cortes, sustained personal injuries on December 5, 1989. At that time she was fourteen years old. She claims that the injuries occurred on property owned by the defendant, John P. Cotton, Jr. In January, 1990, the defendant's property was severely damaged by fire, and the defendant moved to the state of New York. The defendant asserted, in a sworn statement dated January 4, 1992, and attached to the plaintiff's objection to the motion for summary judgment, that "I believe I continued to live [in Albany, New York] for approximately six (6) months or possibly longer. After that I moved back to my mother's house at ... New Haven, Conn. and that is where [31 Conn.App. 571] I still at present make my legal residence." On February 14, 1990, ownership of the defendant's property vested in another pursuant to a judgment of foreclosure of December 18, 1989.

On or about December 30, 1992, the plaintiffs learned for the first time that the defendant had returned to Connecticut. They retained counsel and caused a writ, summons and complaint to be served on the defendant on January 13, 1992.

The defendant filed this motion for summary judgment claiming that the action was time barred under General Statutes § 52-584. The plaintiffs objected, asserting that the defendant was "without" the state of Connecticut for approximately six months and that that period should be excluded from the computation of the two year statute of limitations applicable to a cause of action in negligence. The defendant argues that General Statutes § 52-590 4 is not applicable and that during the period of his absence the plaintiffs could have had him served under the provisions of General Statutes §§ 52-59b and 52-57a. 5

[31 Conn.App. 572] The trial court found that "[i]t was not impossible to commence a suit against this defendant; he was here in Connecticut since ... 1990.... In addition the defendant's absence of approximately six months was nothing more than 'temporary' and therefore should not be excluded from the period of the statute of limitations." The trial court held that the plaintiff had failed to raise any genuine issue as to any material fact; thus, the defendant was entitled to judgment as a matter of law. We disagree and reverse the judgment of the trial court.

The standards governing our review of a trial court's decision on a motion for summary judgment are clear. Practice Book § 384 provides that summary judgment

Page 1309

"shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." See Connecticut Bank & Trust Co. v. Carriage Lane Associates, 219 Conn. 772, 780-81, 595 A.2d 334 (1991); Lees v. Middlesex Ins. Co., 219 Conn. 644, 650, 594 A.2d 952 (1991); Trotta v. Branford, 26 Conn.App. 407, 409, 601 A.2d 1036 (1992). While the burden of showing the nonexistence of any material fact is on the party seeking summary judgment; see D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); "the party opposing [summary judgment] must substantiate its adverse claim by showing that [31 Conn.App. 573] there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue." (Internal quotation marks omitted.) Bassin v. Stamford, 26 Conn.App. 534, 537, 602 A.2d 1044 (1992). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984)....

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48 practice notes
  • Vilton v. Burns, No. X06-CV-00-0169481 S (CT 6/22/2004), No. X06-CV-00-0169481 S
    • United States
    • Supreme Court of Connecticut
    • 22 Junio 2004
    ...the court's function is not to decide issues of material fact, but rather, to determine whether any such issues exist. Cortes v. Cotton, 31 Conn.App. 569, 575 (1993). [I]n deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmo......
  • Field v. Kearns, No. 14689
    • United States
    • Appellate Court of Connecticut
    • 7 Noviembre 1996
    ...on the same facts.... Trotta v. Branford, supra, [at] 410 [601 A.2d 1036]." (Internal quotation marks omitted.) Cortes v. Cotton, 31 Conn.App. 569, 572-73, 626 A.2d 1306 "Equally well settled is that the trial court does not sit as the trier of fact when ruling on a motion for summary judgm......
  • Dolnack v. Metro-North Commuter R. Co., METRO-NORTH
    • United States
    • Appellate Court of Connecticut
    • 29 Marzo 1994
    ...facts.... Trotta v. Branford, [26 Conn.App. 407, 410, 601 A.2d 1036 (1992) ]." (Internal quotation marks omitted.) Cortes v. Cotton, 31 Conn App. 569, 572-73, 626 A.2d 1306 On the basis of our independent review of the doctrine of sovereign immunity, we conclude that the trial court imprope......
  • Sinon v. Town of Wolcott, NNHCV116023483S
    • United States
    • Superior Court of Connecticut
    • 30 Diciembre 2015
    ...the court's function is not to decide issues of material fact, but rather, to determine whether any such issues exist. Cortes v. Cotton, 31 Conn.App. 569, 575, 626 A.2d 1306 (1993). [I]n deciding a motion for summary judgment, the trial court must view the evidence in the light most favorab......
  • Request a trial to view additional results
48 cases
  • Vilton v. Burns, No. X06-CV-00-0169481 S (CT 6/22/2004), No. X06-CV-00-0169481 S
    • United States
    • Supreme Court of Connecticut
    • 22 Junio 2004
    ...the court's function is not to decide issues of material fact, but rather, to determine whether any such issues exist. Cortes v. Cotton, 31 Conn.App. 569, 575 (1993). [I]n deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmo......
  • Field v. Kearns, No. 14689
    • United States
    • Appellate Court of Connecticut
    • 7 Noviembre 1996
    ...on the same facts.... Trotta v. Branford, supra, [at] 410 [601 A.2d 1036]." (Internal quotation marks omitted.) Cortes v. Cotton, 31 Conn.App. 569, 572-73, 626 A.2d 1306 "Equally well settled is that the trial court does not sit as the trier of fact when ruling on a motion for summary judgm......
  • Dolnack v. Metro-North Commuter R. Co., METRO-NORTH
    • United States
    • Appellate Court of Connecticut
    • 29 Marzo 1994
    ...facts.... Trotta v. Branford, [26 Conn.App. 407, 410, 601 A.2d 1036 (1992) ]." (Internal quotation marks omitted.) Cortes v. Cotton, 31 Conn App. 569, 572-73, 626 A.2d 1306 On the basis of our independent review of the doctrine of sovereign immunity, we conclude that the trial court imprope......
  • Sinon v. Town of Wolcott, NNHCV116023483S
    • United States
    • Superior Court of Connecticut
    • 30 Diciembre 2015
    ...the court's function is not to decide issues of material fact, but rather, to determine whether any such issues exist. Cortes v. Cotton, 31 Conn.App. 569, 575, 626 A.2d 1306 (1993). [I]n deciding a motion for summary judgment, the trial court must view the evidence in the light most favorab......
  • Request a trial to view additional results

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