Wallace v. Cressler Trucking Co., No. Cv00 37 20 75 S (Aug. 22, 2001)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] RULING RE: MOTION TO OPEN JUDGMENT OF NONSUIT The plaintiff's motion to open the judgment of nonsuit is granted. The defendants contend that this court lacks jurisdiction to open the judgment because the plaintiff filed her motion to open more than four months after entry of the judgment. See Van Mecklenburg v. Pan AmericanWorld Airways, Inc., 196 Conn. 517, 518, 494 A.2d 549 (1985). Judge Melville granted the motion for nonsuit (pleading number 107) on August CT Page 11539 9, 2000. The court file contains a clerical notation that notice of the nonsuit was sent to counsel on August 14, 2000. The plaintiff's motion to open the judgment of nonsuit (pleading number 110) is stamped by the clerk as having been filed on July 12, 2001. Clearly, the motion to open was filed four months after the entry of the judgment. The plaintiff contends that she did not receive notice of the judgment until May of 2001 when the clerk of the court returned a pleading with the notation "Judgment of nonsuit entered by Judge Melville on 8/9/00." A delay in notifying the plaintiff would extend the time when the plaintiff could move to open the judgment pursuant to Practice § 17-43. Noethev. Noethe, 18 Conn. App. 589, 595, 559 A.2d 1149 (1989). While the clerk's notation indicating that counsel were notified raises a presumption that notice was sent and received, Batory v. Bajor,22 Conn. App. 4, 8, 575 A.2d 1042 (1990); DiSimone v. Vitello,6 Conn. App. 390, 393, 505 A.2d 745 (1986), the plaintiff has overcome this presumption. First, the notice that the defendants received of the granting of their motion for nonsuit does not reflect what is shown in the court file. The notice that the defendants received indicates that the nonsuit was entered on July 17, 2000, and that the notice thereof was issued on October 11, 2000. The court file, on the other hand, indicates that the nonsuit was entered on August 9, 2000, and that notice thereof was sent on August 14, 2000. Second, plaintiff's counsel have made representations in court and by way of affidavit that they did not receive notice of the nonsuit until a pleading was returned in May of 2001. Third, plaintiff's and defendants' counsel took the plaintiff's deposition on October 20, 2000. This latter conduct corroborates the representations of plaintiff's attorneys with respect to the time that the plaintiff received notice of the nonsuit. The court finds that the motion to open judgment of nonsuit was filed within four months of the time that the plaintiff received notice that judgment had been entered. The motion to open is granted. THIM, J.