May 10, 2016
from Superior Court, judicial district of Hartford, Complex
Litigation Docket, Sheridan, J. [motions for summary
judgment]; Dubay, J. [motion to disqualify].
Kenneth J. Krayeske, with whom was Brendan Mahoney, for the
Patrick D. Allen, with whom, on the brief, was Scott M.
Karsten, for the appellees (named defendant et al.).
Pascale Zaino, with whom, on the brief, were Richard C.
Tynan, Evan M. O'Hara, and Logan A. Forsey, for the
appellees (defendant Dale J. Wallington et al.).
Michael R. McPherson, for the appellees (defendant Hartford
Hospital et al.).
Mullins and Mihalakos, Js.
plaintiff, John Doe,  appeals from the summary judgment rendered
by the trial court, Sheridan, J., after determining
that the plaintiff's causes of action were time barred
and were not saved by General Statutes §
52-593a. The plaintiff also appeals from the
decision of the court, Dubay, J., denying his motion
to disqualify Judge Sheridan. The defendants are: the town of
West Hartford and certain members of its police department in
their official and individual capacities, namely, James
Strillacci, Chief of Police, Detective Donald Melanson,
Officer Gino Giansanti, Officer Kimberly Sullivan, Officer
Sean Walmsley, Sergeant John Silano, and Detective Michael
Camilleri (collectively, town defendants); Dale J.
Wallington, M.D., and Resilience Health Care, LLC
(collectively, medical defendants); and Hartford Hospital,
the Institute of Living, Radhika Mehendru, M.D., Carl
Washburn, M.D., and Theodore Mucha, M.D. (collectively,
appeal, the plaintiff claims that the court improperly
rendered summary judgment despite the existence of issues of
material fact regarding whether process was delivered to the
marshal prior to the expiration of the various statutes of
limitations for his causes of action, and that the court
improperly denied the plaintiff's motion for
disqualification of Judge Sheridan on the ground of judicial
bias. We agree that the court improperly
rendered summary judgment, and, accordingly, we reverse in
part and affirm in part the judgment of the trial
the underlying facts and the complicated procedural history
of this case are not relevant to the issues on appeal.
Accordingly, we omit them and set forth only the facts and
history necessary for our consideration of the issues
presented. The plaintiff alleged various wrongful conduct on
the part of the defendants that he claims occurred between
May 22, 2007, and June 8, 2007. He commenced this action by
summons and complaint, executed on May 19, 2010. According to
the marshal's return, which was signed by State Marshal
John R. Griffin, the defendants all were served on June 9,
2010. Beginning on September 23, 2013, more than three years
after this action was commenced, the town defendants, the
medical defendants, and the hospital defendants each filed a
motion for summary judgment claiming, inter alia, that the
plaintiff's causes of action were time
barred. In response, the plaintiff contended that
Griffin had picked up process on May 20, 2010, at the office
of Attorney A. Paul Spinella, his attorney at the time he
commenced this action, thereby saving the late service
pursuant to § 52-593a. See footnote 2 of this opinion.
In three separate memoranda, the court, Sheridan,
J., granted the defendants' motions for summary
judgment on the issue of the statutes of limitations,
concluding that there was no genuine issue of material fact
as to whether Griffin had received process prior to the
running of the statutes of limitations, and that the
defendants were entitled to judgment as a matter of law.
the plaintiff filed a motion to reargue and reconsider,
claiming, in part, that he had newly discovered evidence in
the form of e-mails that would further help to establish that
Spinella's office gave process to Griffin on May 20,
2010. The court denied the plaintiff's motion.
plaintiff also filed a motion to recuse and disqualify Judge
Sheridan on the basis of alleged judicial bias, which was
heard by Judge Dubay. Following the hearing, Judge Dubay
denied that motion. The plaintiff subsequently filed a motion
requesting that Judge Dubay articulate the basis for his
denial of the motion to disqualify, which he granted. This
appeal followed. Additional facts will be set forth as
plaintiff first claims that the trial court improperly
rendered summary judgment despite the existence of issues of
material fact regarding whether process was delivered to
Griffin, the marshal, prior to the expiration of the statutes
of limitations. He also claims that the court improperly
struck Spinella's affidavit. The plaintiff argues that
the defendants never established that the process was not
picked up by Griffin prior to the expiration of the statutes
of limitations. He further argues that the court improperly
weighed the evidence, made credibility determinations, and
shifted the burden of proof to him, despite there being no
evidence from the movants as to when process was received by
Griffin, and then held him to a higher burden of proof than
was appropriate for purposes of opposing summary judgment
motions. The plaintiff additionally argues that the only
burden he had when opposing summary judgment was to
demonstrate an issue of material fact as to whether Griffin
received process prior to May 22, 2010; he contends that he
certainly met that burden but that the court, improperly,
required him to prove that process had been
delivered, and it failed to view the evidence in the light
most favorable to the nonmoving party. We agree that there
exists a genuine issue of material fact regarding the date
that process was delivered to the marshal.
following additional facts inform our review. In September
and October, 2013, the town defendants and the hospital
defendants each filed a motion for summary judgment on
grounds that included the expiration of the applicable
statute of limitations, both citing General Statutes §
52-577. The hospital defendants also cited General
Statutes § 52-584,  and the town defendants also cited
General Statutes § 52-571c (c).
response to these motions for summary judgment, the plaintiff
submitted memoranda in opposition in which he claimed, inter
alia, that his causes of action were saved through the
application of § 52-593a, and he included the affidavit
of Griffin, who attested in relevant part that
‘‘process to be served [in this] case was
delivered to [him] on May 20, 2010.'' In response, in
February, 2014, the town defendants and the hospital
defendants filed motions to strike Griffin's affidavit on
the ground that it was not based on personal knowledge. In
particular, they claimed that Griffin had testified during
his deposition that he had no recollection of the specific
date upon which he had received process in this case and that
he had signed the affidavit because Spinella's office
asked him to sign it. The town defendants and the hospital
defendants attached copies of Griffin's deposition to
their motions to strike.
March 11, 2014, the plaintiff filed an opposition to the
defendants' motions to strike the Griffin affidavit, and
he also included an affidavit from Spinella. In an order
dated April 21, 2014, the court granted the motions to strike
Griffin's affidavit, but, upon the request of the
plaintiff, permitted him to submit the affidavit of
Spinella. The court also gave the defendants sixty
days to depose Spinella regarding the facts and circumstances
set forth in his affidavit.
9, 2014, the hospital defendants filed a motion, entitled
‘‘Motion to Strike Affidavit of A. Paul Spinella
and Supplemental Memorandum in Support of Motion for Summary
Judgment.'' They sought to strike Spinella's
affidavit on the grounds that the affidavit was not based on
personal knowledge and that it contained hearsay. Among the
documents submitted in support of the motion to strike was
Spinella's certified deposition.
17, 2014, the town defendants filed a similar supplemental
motion for summary judgment and motion to strike, which
specifically incorporated the July 9, 2014 motion of the
hospital defendants. They also contended that Griffin's
failure to endorse on his return of service the date he
received process in this case was fatal. See footnote
2 of this opinion. The plaintiff filed an opposition to these
motions, attaching Spinella's affidavit and portions of
his deposition. The hospital defendants and the town
defendants each filed a reply. On September 12, 2014, the
court rendered a decision striking in part Spinella's
affidavit on the ground that it was not based on personal
knowledge because Spinella did not witness, firsthand, the
marshal pick up the process.
September 25, 2014, the medical defendants filed a motion for
permission to file a supplemental motion for summary
judgment, alleging that, in light of the court's recent
rulings on the other defendants' motions to strike, the
plaintiff's causes of action against them also were
barred by § 52-577. On September 30, 2014, the court
granted permission to the medical defendants.
days later, onOctober8, 2014, the court, in three separate
memoranda of decision, rendered summary judgment on behalf of
all defendants. Specifically, the court rendered summary
judgment on the ground that the plaintiff had failed to
establish that process had been delivered to Griffin prior to
the running of the applicable statutes of limitations in this
plaintiff claims that the court improperly struck
Spinella's affidavit and that it improperly rendered
summary judgment despite the existence of issues of material
fact regarding whether process was delivered to Griffin prior
to the expiration of the statutes of limitations. We agree
that the court improperly rendered judgment on the basis that
there was no genuine issue of material fact as to whether
Spinella delivered process to Griffin prior to the expiration
of the applicable three year statutes of limitations.
principles that govern our review of a trial court's
ruling on a motion for summary judgment are well established.
Practice Book § 17-49 provides that summary judgment
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. In deciding a motion for
summary judgment, the trial court must view the evidence in
the light most favorable to the nonmoving party. . . . The
party moving for summary judgment has the burden of showing
the absence of any genuine issue of material fact and that
the party is, therefore, entitled to judgment as a matter of
law. . . .
ruling on a motion for summary judgment, the court's
function is not to decide issues of material fact . . . but
rather to determine whether any such issues exist. . . . The
courts hold the movant to a strict standard. To satisfy his
burden the movant must make a showing that it is quite clear
what the truth is, and that excludes any real doubt as to the
existence of any genuine issue of material fact. . . . Once
the moving party has met its burden [of production] . . . the
opposing party must present evidence that demonstrates the
existence of some disputed factual issue. . . . [I]t [is]
incumbent [on] the party opposing summary judgment to
establish a factual predicate from which it can be
determined, as a matter of law, that a genuine issue of
material fact exists. . . .
appeal, the reviewing court must determine whether the legal
conclusions reached by the trial court are legally and
logically correct and whether they find support in the facts
set out in the memorandum of decision of the trial court. . .
. [R]eview of the trial court's decision to grant [a
party's] motion for summary judgment is
plenary.'' (Citations omitted; internal quotation
marks omitted.) Episcopal Church in the Diocese
of Connecticut v. Gauss, 302 Conn. 408,
421-22, 28 A.3d 302 (2011), cert. denied, U.S., 132 S.Ct.
2733, 183 L.Ed.2d 653 (2012).
judgment is appropriate on statute of limitations grounds
when the material facts concerning the statute of limitations
[are] not in dispute . . . .'' (Internal quotation
marks omitted.) Romprey v. Safeco Ins. Co. of
America, 310 Conn. 304, 313, 77 A.3d 726 (2013).
‘‘The question of whether a party's claim is
barred by the statute of limitations is a question of law,
which this court reviews de novo.'' (Internal
quotation marks omitted.) Targonski v.
Clebowicz, 142 Conn.App. 97, 106, 63 A.3d 1001
(2013). ‘‘A plaintiff relying upon a saving
statute [to defeat a statute of limitations defense] must
demonstrate compliance with its provisions.''
(Internal quotation marks omitted.) Gianetti v.
Connecticut Newspapers Publishing Co., 136 Conn.App.
67, 74, 44 A.3d 191, cert. denied, 307 Conn. 923, 55 A.3d 567
the plaintiff argues that this case is not barred by any
statute of limitations because process was given to Griffin
timely pursuant to § 52-593a and that the documents
available to the court when considering the defendants'
motions for summary judgment established, at the very least,
a genuine issue of material fact on this topic, which is all
he was required to establish.
52-593a . . . extends the period of time for the serving
officer to make the delivery. Process must still be received
by the serving officer on time. In other words, the plaintiff
must get the process to the serving officer within the period
allowed by the statute. . . . All that § 52-593a
requires . . . is that the process be personally delivered
[to the marshal]. It does not require that the delivery be
made by the plaintiff, his attorney, or any particular
individual. The person making the delivery has no statutory
role to perform respecting the delivery. He is neither
required nor permitted to endorse his doings on the return.
In addition, the statute does not detail the manner of making
delivery. The word deliver includes a handing over for the
purpose of taking even though both acts do not occur
simultaneously. . . . The fact that the extension statute
becomes operative only where the process has been delivered
before the running of the statute of limitations, and the
fact that the serving officer is required to attest to the
date of delivery suggest that the purpose of the statute is
to ensure that the process is received on time by the
officer.'' (Footnotes omitted; internal quotation
marks omitted.) Id., 73-74. ‘‘A
plaintiff relying upon a ‘saving statute' must
demonstrate compliance with its provisions. . . . [If] the
plaintiff fail[s] to establish a genuine issue of material
fact as to his compliance with the provisions of §
52-593a, the court properly render[s] summary judgment . . .
.'' (Citation omitted.) Id., 74.
case, all parties agree that the defendants were served on
June 9, 2010, and that this date was, at a minimum, one day
beyond the applicable statutes of limitations. The question
we are called upon to answer in this instance is whether the
court properly ruled that the evidence submitted in support
of, or in opposition to, the motions for summary judgment
failed to demonstrate that there existed a genuine issue of
material fact as to whether Griffin received process on May
20, 2010. We conclude that, even without the consideration of
Griffin's or Spinella's affidavit, there existed
evidence in the form of Spinella's deposition testimony
to demonstrate the existence of a genuine issue of material
fact as to the date process was delivered to Griffin.
Accordingly, we conclude that the court improperly rendered
summary judgment on the ground that the plaintiff had failed
to demonstrate the existence of such a genuine issue.
his deposition, which was before the court when it ruled on
the various motions for summary judgment, Spinella was
question by Attorney Michael R. McPherson, counsel for the
hospital defendants, and testified in relevant part as
‘‘Q. Now, I've marked what looks to be your
affidavit as defendants' exhibit three. . . . Now, is
that your affidavit and your signature?
‘‘A. Looks like it.
‘‘Q. Now, it says in the affidavit that you used
Marshal Griffin exclusively for service of process in 2010,
is that correct?
‘‘A. To the best of my memory, yes.
‘‘Q. Now, in May of 2010, who had the
responsibility at your firm to ensure that the marshal
received the process for service?
‘‘A. Bonnie St. Onge, to the best of my memory.
‘‘Q. Now, who is Bonnie St. Onge?
‘‘A. My office manager at that time. . . .
‘‘Q. Does Bonnie St. Onge work for your firm
‘‘A. No. . . . She's deceased. . . .
‘‘Q. Now, back in May of 2010, can you describe
the typical process at your firm as to how, once a complaint
was drafted and a summons filled out, those papers were
delivered to the marshal . . . .
‘‘A. Well, it depended on the urgency of it. If
it was really urgent, he would be called and asked to
personally come and get it so we wouldn't have to wait on
‘‘Q. And who would make the call typically in May
of 2010 to the marshal to come pick it up?
‘‘Q. Now, was it ever your practice to personally
hand the process to the marshal when he came to your office,
or did you leave that to Bonnie?
‘‘A. We'd leave it on the end of the counter.
But he would come in and talk to the staff; he wouldn't
just grab it. And it would be handed over to him.
‘‘Q. When you say you'd leave it on the
counter, was that counter like a receptionist's desk?
‘‘A. Yes. When you come in my office, there's
a long counter, and it's like a wall with a shelf on it.
And at the end of that, that would be for pickup.
‘‘Q. Now, did someone sit at that desk or counter
area in your office back in May of 2010?
‘‘A. Yes. There were two-Bonnie's office was
right there. And I also had a secretary that sat there.
‘‘Q. And what was the name of your secretary who
sat right there in May of 2010?
‘‘A. It would have been Bonnie Kiniry.
‘‘Q. Now, I'm trying to picture this in my
mind. I've never been to your office, so I apologize.
There is a counter that is right when you walk into your
‘‘Q. And did Bonnie Kiniry sit right behind that
‘‘A. She [sat] near to it. And Bonnie St. Onge
[had] an open door that open[ed] ...