Connecticut Appellate Court Adopts Rule Proposed by ZEK

ZEK’s Connecticut litigation team recently secured a major appellate victory when the Connecticut Appellate Court adopted a rule proposed by ZEK on a pivotal procedural issue involving Connecticut’s “Accidental Failure of Suit” statute.

ZEK successfully moved to dismiss a previous case brought by the plaintiff for lack of subject matter and personal jurisdiction. Plaintiff subsequently filed a new action asserting multiple causes of action, the majority of which were time-barred. In light of such, plaintiff attempted to invoke the Accidental Failure of Suit Statute - Connecticut General Statutes § 52-592 - which permits the filing of a new action within a year of the dismissal of the prior action in certain limited circumstances. Following extensive discovery, ZEK obtained summary judgment in the trial court on the grounds that the original action was never “commenced” as required by the statute.

On appeal, plaintiff argued that defendant’s alleged knowledge of the existence of the case during the limitations period warranted the invocation of the statute. Based on an analysis of previous decisions by the Connecticut Appellate and Supreme Court, ZEK argued for the adoption of a rule that an action can only be “commenced” for purposes of the statute when a plaintiff can prove that the defendant actually received the summons and complaint in the original action within the limitations period. The Appellate Court affirmed the trial court’s summary judgment decision, specifically adopting the rule proposed by ZEK relating to Connecticut’s “Accidental Failure of Suit” statute. Similarly, with respect to the remaining, timely claims, the Appellate Court also affirmed the trial court’s summary judgment decision in favor of ZEK’s client, finding that all of the defendant’s conduct was in good faith and not actionable.

ZEK’s team in Kinity v. U.S. Bancorp, 212 Conn. App. 781 (2022) included Annabelle Machado-Costa and Pierre-Yves Kolakowski, who argued the appeal.