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, ET AL.
(AC 43463)
Bright, C. J., and Prescott and Moll, Js.

Syllabus

The plaintiff financing company sought to recover damages from the defen-
dants, a limited liability company and its principal, for the defendants’
alleged failure to make payments due under a motor vehicle lease agree-
ment. After the defendants were defaulted for failure to appear, the trial
court granted the plaintiff’s motion for judgment and rendered judgment
for the plaintiff. Thereafter, the court denied the defendants’ motion to
open and to set aside the default judgment, and the defendants appealed
to this court, claiming that the trial court abused its discretion by denying
their motion to open and denying their oral request to continue the
hearing on the motion to allow them to present testimony and evidence
in support of the motion. Held:
1. The trial court did not abuse its discretion in denying the defendants’
motion to open and to set aside the default judgment: although the court
improperly determined that the motion to open was untimely, the court
reasonably considered the merits of the motion and determined that
the motion had no basis, as the defendants, who were aware of the
pending action but failed to take any action in response, were not
prevented from appearing as a result of mistake, accident or other
reasonable cause; moreover, neither the motion nor the attached affida-
vit made any reference to an alleged representation that the plaintiff
would not be pursuing the action, which the defendants’ counsel raised
for the first time during the hearing on the motion.
2. The trial court did not abuse its discretion in denying the defendants’ oral
request to continue the hearing on their motion to open the judgment,
the defendants having failed in the affidavit attached to their motion to
set forth adequately the reason why they failed to appear; moreover,
the defendants had requested only oral argument and not an evidentiary
hearing, and the court was not required to continue the matter to allow
the defendants to present testimony in support of a claim that was not
raised in their motion to open.
(One judge dissenting)
Argued May 9—officially released July 19, 2022

Procedural History

Action to recover damages for breach of contract,
and for other relief, brought to the Superior Court in
the judicial district of Ansonia-Milford, where the defen-
dants were defaulted for failure to appear; thereafter,
the court, Hon. Arthur A. Hiller, judge trial referee,
granted the plaintiff’s motion for judgment and ren-
dered judgment for the plaintiff; subsequently, the court
denied the defendants’ motion to open and set aside
the default judgment, and the defendants appealed to
this court. Affirmed.
Daniel D. Skuret III, with whom was Patrick D.
Skuret, for the appellants (defendants).
Gary Greene, for the appellee (plaintiff).
Opinion

BRIGHT, C. J. The defendants, Aniello Dizenzo and
his company, 1188 Stratford Avenue, LLC (company),
appeal from the judgment of the trial court denying
their motion to open the default judgment rendered
in favor of the plaintiff, Mercedes-Benz Financial. The
defendants claim that the court abused its discretion
by denying their (1) motion to open and (2) oral request
to continue the hearing on the motion to allow the
defendants to present testimony and evidence in sup-
port of it. We affirm the judgment of the trial court.
The record reveals the following relevant facts and
procedural history. In 2012, Dizenzo, on behalf of his
company, entered into a motor vehicle lease agreement
(agreement) with a dealership in Fairfield for a 2013
Mercedes-Benz (vehicle). Dizenzo signed the agreement
on behalf of his company and also in his individual
capacity as guarantor. The dealership assigned its rights
under the agreement to the plaintiff. In January, 2017,
the plaintiff brought the underlying action against the
defendants alleging that the defendants had failed to
make the payments due under the agreement. The
return date was February 28, 2017, but neither defen-
dant filed an appearance.
On September 1, 2017, the trial court clerk granted
the plaintiff’s motion for default for failure to appear
as to both defendants. On September 1, 2019, more than
one year after the default had entered, the plaintiff filed
a motion for judgment and order of weekly payments.
On May 13, 2019, the court granted the motion, render-
ing judgment for the plaintiff in the amount of $11,734.61
and awarding the plaintiff postjudgment interest at the
annual rate of 8 percent pursuant to General Statutes
§ 37-3a.1 The court ordered the defendants to make
weekly payments in the amount of $35. On May 28, 2019,
the plaintiff sent a notice of judgment to the defendants.
On July 29, 2019, the defendants filed a motion to
open the judgment pursuant to General Statutes (Rev. to
2019) § 52-212.2 In that motion, the defendants asserted
that the vehicle ‘‘had serious defects’’ and required
repairs that would have taken several months to com-
plete. As a result, the defendants told the dealership
that, because the vehicle did not function properly,
‘‘the lease was void and they left the [vehicle] with the
dealer[ship].’’ The defendants claimed that, although
they were aware of the lawsuit in 2017, they ‘‘mistakenly
thought [it] was resolved and did not hear anything
else until June of 2019, when [they] received notice of
judgment.’’ They further claimed that they ‘‘ha[d] good
defenses to the plaintiff’s claim based upon breach of
warranties and misrepresentations and w[ould] file a
counterclaim . . . when the judgment is set aside.’’
Dizenzo repeated these claims in an affidavit, which was
filed with the motion. The plaintiff filed an objection
to the motion, claiming that the defendants failed to estab-
lish good cause for their failure to appear and that the
‘‘[d]efendants’ purported defenses and [counter]claims
arise from the alleged acts of the dealership, not the
plaintiff financing company.’’
On August 9, 2019, the defendants filed a caseflow
request in which they requested oral argument ‘‘[t]o
explain [the] motion to open judgment . . . and the
reasons why the court should grant it.’’ On August 13,
2019, the defendants filed a notice of intention to appear
and argue and request for oral argument, requesting
‘‘permission to appear and . . . explain the defenses
and the reasons why the court should grant the motion
. . . .’’ On September 16, 2019, the court held a hearing
on the motion. At the hearing, the court initially thought
that judgment had entered in 2017. After the courtroom
clerk informed the court that judgment had entered on
May 13, 2019, the following exchange occurred:
‘‘The Court: May, June, July, August, September. We
are more than four months?
‘‘[The Defendants’ Counsel]: No. We . . . filed
within time, Your Honor. And you know I asked that
this be heard back in August with—
‘‘The Court: All right. So we are barely in time. Tell
me; you were served properly, correct?
‘‘[The Defendants’ Counsel]: I believe the defendants
were served properly.
‘‘The Court: Okay. So 2017.
‘‘[The Defendants’ Counsel]: Yes.
‘‘The Court: Versus 2019, with nothing happening—
‘‘[The Defendants’ Counsel]: That’s right. They
didn’t—
‘‘The Court: —after being served.
‘‘[The Defendants’ Counsel]: Well, it’s not that nothing
has happened, Your Honor. What, in effect, happened
was he contacted [Mercedes-Benz] after that period of
time and was told the fact that they weren’t going to
go forward.
‘‘The Court: Is your client here to testify?
‘‘[The Defendants’ Counsel]: Well, what I will do is—
I thought this was oral argument. But if you want testi-
mony, we can bring him in.
‘‘The Court: No. No. This is your motion to open.
Why should I rely on a pleading [or] a story that there
was an agreement, supposedly, and that’s why you
didn’t bother doing anything, when I don’t even have
an affidavit?
‘‘[The Defendants’ Counsel]: You do have an affidavit.
‘‘The Court: To that effect?
‘‘[The Defendants’ Counsel]: You have an affidavit.
‘‘The Court: Okay. All right. All right. But was the
affidavit cross-examined? Do I have witnesses on the
other side? Do we have time for a hearing? Do we
have—are we ready for evidence?
‘‘[The Defendants’ Counsel]: You know, Your Honor,
I thought this was for oral argument, and I’m sorry.
It’s my fault. And what I will do is if Your Honor just
continues the argument to next week, I’m sure what
can happen is that we can bring him forward.
‘‘The Court: And even if you bring him in—Counsel,
do you agree there was an agreement not to do any-
thing?
‘‘[The Plaintiff’s Counsel]: Absolutely not. And it flies
in the face of their own affidavit. Their affidavit articu-
lates that they didn’t get the satisfaction they wanted.
And they turned around and just left the car with a
dealer and said we’ll go elsewhere. I mean that’s the
fair reading of their affidavit.
‘‘[The Defendants’ Counsel]: That’s not the fair read-
ing.
‘‘[The Plaintiff’s Counsel]: More importantly, these
defenses, A, are probably time barred because the lease
was entered into in November of 2012. And more
importantly than that, how do you hold the financing
entity culpable for defects in the product you used its
money to buy? . . . You go after the dealer. These are
Lemon Law type of allegations. We had a lousy car. It
didn’t work. It had this problem; it had that problem.
But Mercedes-Benz Financial had nothing to do with
that. They were not the dealer of the car. They were
not the owner of the car. They didn’t sell the car or
lease the car to the defendant[s]. . . .
‘‘[The Defendants’ Counsel]: That’s not true. . . . I
have a copy of the lease. May I show it to Your Honor?
‘‘The Court: Tell me what it says.
‘‘[The Defendants’ Counsel]: It says Mercedes-Benz
Financial Services.
‘‘The Court: Is the lessor?
‘‘[The Defendants’ Counsel]: It says Mercedes-Benz
Financial Services, and it’s a first class lease. And basi-
cally, it’s all over here about Mercedes-Benz Financial
Services. And what had, in fact, happened was there’s
a breach of actual contract. There’s a breach with regard
to the warranties. It’s a violation of the Lemon Law.
And basically, he was told the fact that they weren’t
going to do anything with it. He left the car there
because the car was not operable, and he didn’t want
to actually get anybody injured.
‘‘You know it’s a situation where all he wants to do
is get his day in court. And he is sorry that this thing
didn’t actually—he didn’t actually move faster with
regard to this; that’s all. It’s very simple. And all we’d
like to do is we would like to reopen the judgment; do
some discovery with it; file a counterclaim. . . . This
two year period of time is very important, actually, to
the plaintiff as he is talking. But it is also very important
to us because the fact that they did nothing, which is
sort of—which shows the fact that when [Dizenzo]
talked to them, they weren’t going to go forward with
regard to the file. Then all of a sudden, this happened.
‘‘The Court: Has he got anything in writing, any com-
munication at all, saying we’re not going forward; we
are not going to bother you? Anything at all aside from
your word or his word? Everybody knows what an
e-mail is. There isn’t a human being in this country who
doesn’t know you put things in writing.
‘‘[The Defendants’ Counsel]: Well, you are not talking
with a person that uses e-mail all of the time, Your
Honor. You’re talking with a—
‘‘The Court: That’s you. How about your client?
‘‘[The Defendants’ Counsel]: The client is the same
way, and Attorney D.J. Skuret can attest to that. You
know my client is around my age, so it’s not like he’s
computer literate so that is not going to happen. All we
are doing is we’re looking for our day in court, Your
Honor; that’s all.
‘‘[The Plaintiff’s Counsel]: Your Honor, please.
‘‘[The Defendants’ Counsel]: And Your Honor has
been very fair with regard to the other people that have
appeared before Your Honor today. All we are looking
for is fairness in getting this set aside so we can go
forward with regard to discovery.
‘‘The Court: Your client is savvy enough to have him-
self an LLC. I bet you he knows what an e-mail is.
‘‘[The Defendants’ Counsel]: I think he knows what
an e-mail is, but I don’t think he’s savvy enough to have
a—to do e-mail. So with regard to having an—
‘‘The Court: He’s got a corporation. Is he smart
enough to set up a corporation?
‘‘[The Defendants’ Counsel]: I don’t think he set up
any corporation. I—
‘‘The Court: What’s the LLC?
‘‘[The Defendants’ Counsel]: The corporation is a lim-
ited liability company.
‘‘The Court: I understand. That’s a corporation.
‘‘[The Defendants’ Counsel]: But I don’t think he set
it up. He’s not savvy enough to set it up. The man was
a mechanic, mechanic.
‘‘The Court: Who set it up for him? Who signed the
papers?
‘‘[The Defendants’ Counsel]: I’ll go and I’ll check. I
didn’t know it would be necessary to have it here today.
‘‘The Court: All right. Counsel?
‘‘[The Plaintiff’s Counsel]: Yes, Your Honor. May I?
Counsel filed an affidavit. And I think it’s very illuminat-
ing because the affidavit paragraph 5, the dealer repre-
sented to me; paragraph 6, the dealer told me. He is
talking about a separate entity. Mercedes-Benz Finan-
cial is not the dealer.
‘‘The Court: Correct—
‘‘[The Plaintiff’s Counsel]: All of these alleged coun-
terclaims—
‘‘The Court: Correct, counsel? Your affidavit only says
the dealer did all of these things. The plaintiff here is
not the dealer.
‘‘[The Defendants’ Counsel]: Well, let me say this . . .
Your Honor. The fact that, number one, with regard to
the LLC, it is set up with regard to my client’s house,
and it’s a—
‘‘The Court: No. No, the dealer. Your affidavit says
the dealer promised; the dealer made an agreement. It
doesn’t say anything about the plaintiff.
‘‘[The Defendants’ Counsel]: Well, as I indicated to
Your Honor, and actually if Your Honor wants—what
I can do is I don’t have another copy of this, but I do
have actually the first class lease. And it’s a situation
where [Dizenzo] was told the fact that [the plaintiff was
not] going forward [with the case]. They waited over
two years.
‘‘The Court: But your affidavit tells me it was the
dealer who did that.
‘‘[The Defendants’ Counsel]: Well, I’m sorry, Your
Honor. It was more than the dealer. It was actually it
was Mercedes-Benz Financial. Whenever he called, they
told him the fact that it wasn’t going to go forward.
And they waited two years to do it, which is proof [of]
the fact that they didn’t.
‘‘The Court: That’s not proof of anything.
‘‘[The Defendants’ Counsel]: Well, it is. The fact that
they sat on their—they sat with regard to doing it
because of the fact that—he was told the fact that they
weren’t going forward.
‘‘The Court: Yes, counsel?
‘‘[The Plaintiff’s Counsel]: Well, Your Honor, I have
to assume that this affidavit was vetted and probably
drafted by [the] defendants’ counsel. And it was based
on communications based—articulated to him by his
client; not the LLC, but the principal in the LLC. And
he wouldn’t file an affidavit in court that was misleading
or inappropriate. And as I said—
‘‘The Court: Anything else, counsel?
‘‘[The Defendants’ Counsel]: I’m sorry. I didn’t hear
that.
‘‘The Court: Anything else?
‘‘[The Defendants’ Counsel]: Yes, there is. If this is a
question with regard to who he spoke to, then I’m sorry
that I didn’t bring the client here today. But I will have
him available if Your Honor would just continue it for
a week.
‘‘The Court: [I am] going to deny the motion to open.
It’s untimely and it has no basis.’’ The court also issued
a written order denying the motion, which stated:
‘‘Motion is untimely with no basis.’’ This appeal fol-
lowed.
I
The defendants first claim that the court abused its
discretion in denying their motion to open the judgment
because they filed the motion within four months after
the judgment was rendered and because they satisfied
both prongs of the standard governing the opening of
default judgments. The plaintiff agrees that the defen-
dants’ motion was filed timely but argues that the defen-
dants failed to establish that they were ‘‘prevented by
mistake, accident or other reasonable cause’’ from
appearing and raising their defenses and counterclaims.
We agree with the plaintiff.
We begin with the applicable standard of review and
controlling legal principles. ‘‘A motion to open . . . is
addressed to the [trial] court’s discretion, and the action
of the trial court will not be disturbed on appeal unless
it acted unreasonably and in clear abuse of its discre-
tion. . . . In determining whether the trial court
abused its discretion, this court must make every rea-
sonable presumption in favor of its action. . . . The
manner in which [this] discretion is exercised will not
be disturbed so long as the court could reasonably
conclude as it did. . . .
‘‘To open a judgment pursuant to Practice Book § 17-
43 (a)3 and . . . § 52-212 (a), the movant must make a
two part showing that (1) a good defense existed at the
time an adverse judgment was rendered; and (2) the
defense was not at that time raised by reason of mistake,
accident or other reasonable cause. . . . The party
moving to open a default judgment must not only allege,
but also make a showing sufficient to satisfy the two-
pronged test [governing the opening of default judg-
ments]. . . . The negligence of a party or his counsel
is insufficient for purposes of § 52-212 to set aside a
default judgment. . . . Finally, because the movant
must satisfy both prongs of this analysis, failure to meet
either prong is fatal to [the] motion.’’ (Footnote added;
internal quotation marks omitted.) Little v. Mackeyboy
Auto, LLC, 142 Conn. App. 14, 18–19, 62 A.3d 1164
(2013).
In the present case, the court denied the motion to
open, stating: ‘‘It’s untimely and it has no basis.’’ We
agree with the defendants that the court improperly
determined that the motion to open was untimely. The
defendants filed the motion on July 29, 2019, seventy-
seven days after the judgment was rendered on May
13, 2019, which was well within the four month period
under § 52-212 (a). Nevertheless, because the court also
denied the motion on the ground that ‘‘it ha[d] no basis,’’
we conclude that the court properly denied the motion
to open.
The defendants contend that the court did not reach
the merits of their motion to open because it determined
that the motion was untimely.4 In their principal brief,
they repeatedly claim that, ‘‘[i]f the court had not erro-
neously determined that the motion to open judgment
was untimely filed and simply stopped its inquiry, the
defendants would have been able to show the court
that it met the two-prong test for opening the judgment.’’
In addition, at oral argument before this court, the
defendants’ counsel asserted that he understood the
court’s order as finding that the motion was untimely
and that there was no basis for filing the motion late.
This construction of the court’s judgment is belied by
the record.
Specifically, after the clerk told the court that judg-
ment had been rendered on May 13, 2019, the court
proceeded to ask a series of questions regarding the
merits of the motion to open. More specifically, the
court questioned the defendants’ counsel regarding the
second prong of the standard governing motions to
open—the reasonable cause for the defendants’ failure
to appear and to defend the action. The court first
sought to determine whether the defendants had been
served properly, which the defendants’ counsel con-
ceded, stating that he ‘‘believe[d] they were served prop-
erly.’’ When counsel explained that the defendants did
not appear because Dizenzo had been told by the dealer-
ship that they were not pursuing the action—an expla-
nation not stated in either the motion to open or
Dizenzo’s affidavit—the court asked whether the defen-
dants had any documentary evidence of such an agree-
ment. Given the court’s questions during the hearing,
we are persuaded that the court considered the merits
of the defendants’ motion and concluded that the
motion ‘‘ha[d] no basis.’’ In other words, the court con-
cluded that the defendants were not prevented from
appearing as a result of ‘‘mistake, accident or other
reasonable cause.’’ General Statutes (Rev. to 2019) § 52-
212 (a); Practice Book § 17-43 (a).
As to the merits of their motion to open, the defen-
dants argue: ‘‘On multiple occasions the defendants
contacted the lessor after that period of time and were
told the fact that they were not going to go forward as
the motor vehicle had been returned. Based upon these
representations, the defendants did not hire an attorney
or file an appearance in the case. The defendants relied
on these representations and thus believed that this
matter was resolved. The defendants did not hear any-
thing else for over two . . . years until June of 2019,
when they received the notice of judgment. Nor did the
plaintiff pursue anything in the matter for over two
. . . years, which further supports the defendants’
understanding that this matter had been resolved.’’
We again note that the defendants’ motion to open
and Dizenzo’s accompanying affidavit are devoid of any
reference to the alleged representations made by either
the dealership or the plaintiff as to the continuation of
the lawsuit. In each of those documents, with regard
to the defendants’ failure to appear, the defendants
stated: ‘‘The defendants . . . when they were sued in
2017, mistakenly thought this matter was resolved and
did not hear anything else until . . . [they] received
notice of judgment.’’5 (Emphasis added.) Such an expla-
nation is insufficient under § 52-212 (a) because ‘‘a
defendant’s negligence does not constitute reasonable
cause for failing to appear . . . .’’ Disturco v. Gates in
New Canaan, LLC, 204 Conn. App. 526, 533–34, 253
A.3d 1033 (2021). As this court has explained, § 52-212
(a) ‘‘is remedial, but it cannot be so construed as to
authorize relief . . . where a defendant indeed has
received proper notice of the underlying action and
the plaintiff’s motion for default yet failed to file an
appearance.’’ (Citation omitted; internal quotation
marks omitted.) Id., 535.
This court’s decision in Berzins v. Berzins, 105 Conn.
App. 648, 938 A.2d 1281, cert. denied, 289 Conn. 932, 958
A.2d 156 (2008), is instructive. In Berzins, the defendant
moved to open a judgment of dissolution rendered on
his default for failure to appear; id., 649; claiming ‘‘that
after being served, the plaintiff informed him that she
had withdrawn the action and no longer wanted to
proceed.’’ Id., 651. The trial court denied the motion
to open, finding that the defendant had been served
properly but ‘‘simply chose not to appear.’’ Id., 652. The
court noted that, assuming that the defendant had relied
on such a representation by the plaintiff, ‘‘his subse-
quent negligence supersede[d] his purported reliance
on the plaintiff’s actions.’’ (Internal quotation marks
omitted.) Id. On appeal, this court affirmed the judg-
ment, explaining that ‘‘[t]he defendant was served with
notice of this action and did nothing. Had he filed an
appearance, he would have received notice of the
[scheduled] hearing . . . . The court correctly con-
cluded that the defendant’s inaction in this case was
nothing short of complete and utter negligence.’’ (Inter-
nal quotation marks omitted.) Id., 653.
In the present case, as in Berzins, the defendants
were served with notice of the action and claimed that
they failed to appear because, according to their coun-
sel, they relied on an alleged representation that the
plaintiff would not pursue the action. Just as the defen-
dant’s inaction in Berzins constituted ‘‘complete and
utter negligence’’; (internal quotation marks omitted)
id.; so too does the defendants’ inaction in the present
case. The defendants were aware of the pending action
but failed to take any action in response. Furthermore,
as we noted previously, neither the defendants’ motion
nor Dizenzo’s affidavit made any reference to the
alleged representation that their counsel raised for the
first time during the hearing on the motion to open.
Consequently, because the reason given for the defen-
dants’ failure to appear did not constitute reasonable
cause for such failure, we conclude that the court did
not abuse its discretion when it denied the motion to
open as being without basis.
II
The defendants next claim that the court abused its
discretion by ‘‘denying the defendants an evidentiary
hearing and [by] denying the[ir] request for a continu-
ance of one . . . week to allow the defendants to be
present to provide the court with testimony and evi-
dence in support of the motion to open judgment.’’ We
are not persuaded.
‘‘Appellate review of a trial court’s denial of a motion
for a continuance is governed by an abuse of discretion
standard that, although not unreviewable, affords the
trial court broad discretion in matters of continuances.
. . . An abuse of discretion must be proven by the
appellant by showing that the denial of the continuance
was unreasonable or arbitrary.’’ (Internal quotation
marks omitted.) Bevilacqua v. Bevilacqua, 201 Conn.
App. 261, 268, 242 A.3d 542 (2020). Likewise, ‘‘unless
otherwise required by statute, a rule of practice or a
rule of evidence, whether to conduct an evidentiary
hearing generally is a matter that rests within the sound
discretion of the trial court.’’ (Internal quotation marks
omitted.) DeRose v. Jason Robert’s, Inc., 191 Conn. App.
781, 797, 216 A.3d 699, cert. denied, 333 Conn. 934, 218
A.3d 593 (2019).
In the present case, the defendants do not claim that
an evidentiary hearing was required by a statute, rule
of practice, or rule of evidence. Instead, they argue that
the court, by failing to allow the defendants to present
testimony and submit evidence, ‘‘did not properly
assess [their] claimed defenses and the reasons for not
presenting them as required by the two step process.’’
The defendants further argue that ‘‘[i]t was necessary
for the court to hold an evidentiary hearing as the plain-
tiff never provided to the court a legible copy of the
claimed lease agreement.’’
At the outset, we note that, in each of the caseflow
requests filed by the defendants, they requested only
oral argument—not an evidentiary hearing. It was only
after the court asked whether Dizenzo was present to
testify as to the plaintiff’s alleged representation that
it would not pursue the lawsuit that the defendants’
counsel requested that the matter be continued in order
to present testimony. Moreover, as previously noted,
although the defendants’ counsel explained that
Dizenzo had been told that the plaintiff would not pur-
sue the lawsuit, this explanation was not presented
in either their motion to open or the accompanying
affidavit. Section 52-212 (c) requires that a written
motion to open ‘‘shall be verified by the oath of the
complainant or his attorney, shall state in general terms
the nature of the claim or defense and shall particularly
set forth the reason why the plaintiff or defendant
failed to appear.’’ (Emphasis added.) Dizenzo’s affidavit
failed to provide the detail called for by the statute as
to why the defendants failed to appear and certainly
did not set forth the claim that the defendants’ counsel
made at oral argument before the trial court. The statute
does not contemplate that a party can file a deficient
verified statement and then insist on an evidentiary
hearing to correct deficiencies noted by the court. The
defendants failed to meet their statutory burden under
§ 52-212, and the court did not abuse its discretion by
refusing to continue the matter to allow the defendants
to present testimony in support of a claim that was
never raised in their motion to open.
The judgment is affirmed.
In this opinion, MOLL, J., concurred.
1
General Statutes § 37-3a (a) provides in relevant part: ‘‘Except as pro-
vided in sections 37-3b, 37-3c and 52-192a, interest at the rate of ten per
cent a year, and no more, may be recovered and allowed in civil actions
. . . as damages for the detention of money after it becomes payable. . . .’’
‘‘An award of interest under § 37-3a is discretionary . . . and 10 percent
is the maximum rate of interest that a trial court, in its discretion, can award
. . . meaning the court, as in the present case, has the discretion to set a
lower rate of interest.’’ (Citations omitted; internal quotation marks omitted.)
Lavy v. Lavy, 190 Conn. App. 186, 208 n.15, 210 A.3d 98 (2019).
2
General Statutes (Rev. to 2019) § 52-212 provides in relevant part: ‘‘(a)
Any judgment rendered . . . upon a default . . . may be set aside, within
four months following the date on which it was rendered . . . and the
case reinstated on the docket . . . upon the . . . written motion of any
party . . . prejudiced thereby, showing reasonable cause, or that a good
. . . defense in whole or in part existed at the time of the rendition of the
judgment . . . and that the . . . defendant was prevented by mistake, acci-
dent or other reasonable cause from . . . making the defense. . . .
‘‘(c) The . . . written motion shall be verified by the oath of the complain-
ant or his attorney, shall state in general terms the nature of the claim or
defense and shall particularly set forth the reason why the . . . defendant
failed to appear. . . .’’
All references herein to § 52-212 are to the 2019 revision of the statute.
3
Practice Book § 17-43 (a), which mirrors § 52-212 (a), provides in relevant
part: ‘‘Any judgment rendered . . . upon a default . . . may be set aside
within four months succeeding the date on which notice was sent . . .
upon the written motion of any party or person prejudiced thereby, showing
reasonable cause, or that a good . . . defense in whole or in part existed
at the time of the rendition of such judgment . . . and that . . . the defen-
dant was prevented by mistake, accident or other reasonable cause from
prosecuting or appearing to make the same. Such written motion shall be
verified by the oath of the complainant or the complainant’s attorney, shall
state in general terms the nature of the claim or defense and shall particularly
set forth the reason why the plaintiff or the defendant failed to appear. . . .’’
4
We note that ‘‘[t]he statutory limitation imposed on motions to open
judgments does not implicate the court’s jurisdiction. Rather, our Supreme
Court has explained that General Statutes § 52-212a operates as a constraint,
not on the trial court’s jurisdictional authority, but on its substantive author-
ity to adjudicate the merits of the case before it.’’ (Footnote omitted; internal
quotation marks omitted.) 710 Long Ridge Operating Co. II, LLC v. Stebbins,
153 Conn. App. 288, 295, 101 A.3d 292 (2014).
5
Dizenzo’s affidavit stated: ‘‘The defendant, [Dizenzo], when he was sued
in 2017, mistakenly thought this matter was resolved and did not hear
anything until . . . when he received notice of judgment.’’