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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 evidence 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 judgment 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 presumption 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 defendants’ 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.