DiPENTIMA, C.J.
The plaintiff, Jennie Finkle, administratrix of the estate of Barbara A. Eckert (decedent), appeals from the summary judgment rendered by the trial court in favor of the defendants, the town of Watertown (town) and John F. Carroll III, a police officer employed by the town. On appeal, the plaintiff argues that the court improperly concluded that her action, which was time barred by the applicable statute of limitations, could not be saved by General Statutes § 52-593.
The record reveals the following relevant undisputed facts and procedural history. This action arose out of the killing of the decedent by her former boyfriend, Mark Tannenbaum. On the evening of September 28, 2002, Tannenbaum was called by the decedent's thirteen year old son, who told him that the decedent was not at home and that he needed relief from taking care of the decedent's and Tannenbaum's one year old child. When the decedent and a male individual drove up to the decedent's home, Tannenbaum approached the vehicle and began punching the windows of the vehicle. The decedent and the male friend then drove to the town's police department to file a complaint against Tannenbaum. While the decedent was speaking with Officer Christopher Marciano at the police department, her cell phone rang several times and Marciano heard a male voice yelling through the phone. The third time the decedent's phone rang, Marciano answered it and Tannenbaum stated, "I'll kill you." Marciano identified himself as a police officer and asked Tannenbaum for his location. Tannenbaum told him he was at the decedent's residence.
Three officers, including Marciano, traveled to the decedent's residence and found Tannenbaum there. Marciano smelled alcohol on Tannenbaum's breath at that time and found him angry. Tannenbaum told the police that he wanted the decedent arrested for leaving the children in the residence alone. Tannenbaum was arrested and taken to the police station where he was processed. Later that evening, Carroll made the decision to release Tannenbaum on a promise to appear. Subsequent to his release from police custody, on the morning of September 29, 2002, Tannenbaum shot and killed the decedent at her home in Watertown, and then at another location committed suicide.
On October 21, 2003, the plaintiff filed her initial action pursuant to General Statutes § 52-555
The defendants filed a motion to dismiss, asserting that the plaintiff's claims were barred by the statute of limitations found in § 52-555, and that the action was not saved by the provisions of § 52-593, the "wrong defendant" statute. The court denied the motion. The defendants then filed a motion for summary judgment arguing, among other things, that the plaintiff's claims were barred by the applicable statute of limitations. The plaintiff filed an objection to that motion. Thereafter, the court rendered summary judgment in favor of the defendants on the ground that the plaintiff's claims were not saved by § 52-593. In its memorandum of decision, the court stated that "[i]n the original action, the plaintiff failed to name the very party, the defendant Carroll, who was responsible for releasing Tannenbaum on September 29, 2002." The court noted that "[t]he present case is not a situation where the plaintiff failed to name all of the potentially liable defendants." Nevertheless, the court, citing Billerback v. Cerminara, 72 Conn.App. 302, 308-309, 805 A.2d 757 (2002), concluded that the plaintiff's "failure to obtain a judgment of dismissal in her original action is fatal to satisfying all of the criteria set forth in . . . § 52-593." This appeal followed.
Before addressing the plaintiff's claim, we set forth the applicable standard of review. "We exercise plenary review over a trial court's decision to grant a motion for summary judgment. . . . Pursuant to Practice Book § 17-49, 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. . . . A material fact is a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Iello v. Weiner, 129 Conn.App. 359, 362-63, 20 A.3d 81 (2011).
The plaintiff claims that the court improperly concluded that her action, which was time barred by the applicable statute of limitations, could not be saved by § 52-593.
We begin our analysis by examining the language of the statute. Section 52-593 provides in relevant part: "When a plaintiff in any civil action has failed to obtain judgment by reason of failure to name the right person as defendant therein, the plaintiff may bring a new action and the statute of limitations shall not be a bar thereto if service of process in the new action is made within one year after the termination of the original action. . . ." The savings provision therefore applies "if the plaintiff has failed to obtain judgment in the original action on the basis of her failure to name the right person as defendant. . . ." (Internal quotation marks omitted.) Cogan v. Chase Manhattan Auto Financial Corp., 276 Conn. 1, 8, 882 A.2d 597 (2005). Our Supreme Court has concluded that "the language of [§ 52-593] and its relationship to other statutes does not reveal a meaning that is plain and unambiguous. We therefore look for interpretive guidance beyond the statutory scheme." Id., at 8, 882 A.2d 597. Specifically, the court noted that "the statute is not clear as to whether the term right person means any right person or all right persons from whom the plaintiff can recover." (Emphasis in original; internal quotation marks omitted.) Id., at 8 n. 6, 882 A.2d 597. "Under Connecticut law, a right person, as that term is used in § 52-593, is one who, as a matter of fact, is a proper defendant for the legal theory alleged. . . . Moreover, the plaintiff's failure to name all the defendants from whom she could have recovered in her original action does not constitute a failure to name the right person as defendant within the meaning of. . . § 52-593." (Citation omitted; emphasis in original; internal quotation marks omitted.) Iello v. Weiner, supra, 129 Conn.App. at 363, 20 A.3d 81.
Our plenary review of the record leads us to conclude, notwithstanding the court's conclusion to the contrary, that the present case is a situation in which the plaintiff named some, but not all, of the potentially liable defendants.
Although Carroll, as the ranking officer, made the final decision to release Tannenbaum,
In reaching this conclusion, we note the instructive reasoning of this court in Iello. In Iello, the plaintiff commenced a dental malpractice action against Family Dental Group, P.C.,
The court in Iello explained: "Although it may be the case that the plaintiff's failure to name the defendant as a defendant in the first action was a benign oversight, our law is clear that [t]he fact that the complaint in the plaintiff's original action failed to name all potentially liable defendants is immaterial. . . . [T]he fact that the specific allegations of negligence directed originally against [the defendant in the first action] were more appropriately pleaded against the defendant does not alter our resolution of the plaintiff's claim on appeal. Because the plaintiff's first action, premised on a theory of negligence, was brought against a right person, § 52-593 is inapplicable and cannot save the plaintiff's second action from being time barred by [the applicable statute of limitations]. Accordingly, the plaintiff's claim fails." (Citation omitted; emphasis added; internal quotation marks omitted.) Id., at 363-64, 20 A.3d 81; see also Cogan v. Chase Manhattan Auto Financial Corp., supra, 276 Conn. at 8-10, 882 A.2d 597 (action not saved where initial action named "`right' defendant"); Kronberg v. Peacock, 67 Conn.App. 668, 673-74, 789 A.2d 510 (same), cert. denied, 260 Conn. 902, 793 A.2d 1089 (2002); compare Whipple v. Fardig, 109 Conn. 460, 464-65, 146 A. 847 (1929) (defendant named as principal of person driving vehicle under theory of agency for purposes of savings statute deemed "wrong defendant" where evidence revealed defendant was not owner of vehicle involved in accident and thus could not be sued under theory alleged); DiPietro v. Farmington Sports Arena, LLC, 123 Conn.App. 583, 594-95, 2 A.3d 963 (second action fell within scope of § 52-593 where defendant named in first action "did not exist at the time of the injury and, therefore, could not have been in control or possession of the [facility where the plaintiff was injured]"), cert. granted on other grounds, 299 Conn. 920, 10 A.3d 1053 (2010); Morrissey v. Board of Education, 40 Conn.Sup. 266, 269, 491 A.2d 1126 (1985) (initial defendant named in negligence action deemed wrong defendant where, from inception of original action, second defendant's actions, and his alone, were principal and underlying basis of plaintiff's claim [emphasis added]).
Although we recognize that § 52-593, a remedial statute, is construed liberally, "it should not be construed so liberally as to render statutes of limitation virtually meaningless." (Internal quotation marks omitted.) Isidro v. State, 62 Conn.App. 545, 551, 771 A.2d 257 (2001). As our Supreme Court stated in Cogan, "to allow a plaintiff to file successive complaints under § 52-593 naming different defendants, all of whom were proper, thereby permitting the plaintiff to take the proverbial second, third or even fourth bite of the apple, could lead to unrestrained filings in cases with multiple defendants and open the door to endless litigation. To allow [such an] action . . . would defeat the basic purpose of the public policy that is inherent in statutes of limitation[s], i.e., to promote finality in the litigation process." (Emphasis added; internal quotation
The judgment is affirmed.
In this opinion the other judges concurred.
Specifically, we note that as a remedial statute, § 52-593 is construed liberally to encourage diligent plaintiffs who named the wrong defendant due to a "reasonable and honest mistake of fact as to the identity of the truly responsible individual" to reassert their claims. (Internal quotation marks omitted.) Kronberg v. Peacock, 67 Conn.App. 668, 672, 789 A.2d 510, cert. denied, 260 Conn. 902, 793 A.2d 1089 (2002). To the extent that this court has concluded that the voluntary withdrawal of an action technically does not qualify as a "failure to obtain judgment" for purposes of § 52-593; see Cogan v. Chase Manhattan Auto Financial Corp., 83 Conn.App. 843, 844-45, 851 A.2d 407 (2004), aff'd on other grounds, 276 Conn. 1, 882 A.2d 597 (2005); this conclusion may be an overly narrow one. Because we conclude that the original defendants were the "right person[s]" for purposes of § 52-593, however, we do not address this issue.