Mercedes-Benz Financial v. 1188 Stratford Avenue, LLC

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.

All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.

The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
MERCEDES-BENZ FINANCIAL V. 1188 STRATFORD AVENUE, LLC—
DISSENT

PRESCOTT, J., dissenting. I respectfully dissent for
three reasons. First, all parties and the majority agree
that the trial court improperly determined that the
motion to open filed by the defendants, 1188 Stratford
Avenue, LLC, and Aniello Dizenzo, was untimely. It
plainly was timely. In my view, this error is likely to
have tainted the court’s decision whether to exercise
its discretion, at the very least, to grant the defendants
a short continuance in order for them to present evi-
dence in support of their motion to open.
Second, it is not clear to me whether the court’s
statement ‘‘and it has no basis,’’ which immediately
follows its incorrect statement that the motion to open
was untimely, refers to the merits of the motion to open
or was intended to mean that the defendants have not
alleged a sufficient basis, such as fraud, to open a judg-
ment that is older than four months. See Tyler E.
Lyman, Inc. v. Lodrini, 78 Conn. App. 684, 687, 828
A.2d 681 (courts have intrinsic powers, independent of
any statutory authority, to grant motion to open default
judgment obtained by fraud, duress or mutual mistake,
even if motion to open was filed more than four months
after judgment rendered), cert. denied, 266 Conn. 917,
833 A.2d 468 (2003). Although the defendants did not
file a motion for articulation in order to resolve this
ambiguity, I am unwilling to apply the normal presump-
tion regarding the correctness of a trial court’s decision
in light of the clear error of the court’s determination
that the motion was not filed within four months of the
date judgment was rendered.
Finally, as the majority recognizes, if a motion to
open is filed later than four months after the judgment
is rendered, the court lacks authority to adjudicate it
in the absence of one of the recognized exceptions such
as fraud. Because the court had already concluded that
the motion was untimely, albeit incorrectly, it should
have proceeded no further in adjudicating the motion.
I am unwilling in these circumstances to presume that
the court’s subsequent exercise of its discretion with
respect to either the merits of the motion or the decision
whether to grant a short continuance, was not affected
by its incorrect view that the motion to open was not
filed timely.
In sum, regardless of the ultimate merits of the defen-
dants’ motion to open, I am of the view that they are
entitled to have that motion adjudicated by a trial court
that is not laboring under the misapprehension that the
motion was late. I, therefore, respectfully dissent.