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ENRICO VACCARO, ADMINISTRATOR (ESTATE OF
MARIE J. VACCARO), ET AL. v.
CHRISTOPHER P. LOSCALZO
ET AL.
(AC 42951)
Bright, C. J., and Cradle and Suarez, Js.
Syllabus
The plaintiffs, V and E, sought to recover damages for, inter alia, the allegedly
wrongful death of the decedent, M, as a result of the defendants’ negli-
gence. The plaintiffs commenced the action in May, 2016. Despite various
pleadings and motions filed by the defendants, the plaintiffs did not
serve any discovery, take any depositions, close the pleadings, disclose
any experts, or respond to outstanding discovery requests. Additionally,
E died in May, 2016, and his estate was never substituted as the proper
party in the case. Eventually, in February, 2018, the plaintiffs’ counsel
relayed to the trial court personal reasons why deadlines and discovery
compliance were not met and represented that he needed to withdraw.
Following more continuances, V was not able to obtain new counsel,
and objected to the plaintiffs’ counsel withdrawing from the case. In
March, 2019, the court denied the motion to withdraw filed by the
plaintiffs’ counsel and, in April, 2019, granted the defendants’ motion
to dismiss for failure to prosecute with due diligence. On appeal to
this court, the plaintiffs claimed that the court abused its discretion in
rendering a judgment of dismissal. Held that the trial court did not
abuse its discretion in dismissing the plaintiffs’ complaint for failure to
prosecute with due diligence; under the factors articulated in Ridgaway
v. Mount Vernon Fire Ins. Co. (328 Conn. 60), the court’s sanction of
dismissal was proportional to the plaintiffs’ misconduct in that the court
carefully set forth a pattern of misconduct by the plaintiffs over the
course of three years, the plaintiffs were clearly on notice of the possibil-
ity of a sanction as the defendants began requesting a judgment of
dismissal as a sanction in November, 2017, and the court repeatedly
notified the plaintiffs that a dismissal would be forthcoming if they
continued their pattern of delays, the court demonstrated the use of
alternatives to dismissal by issuing new orders and warnings of dismissal
but these alternatives failed and further alternatives were not required,
and, although the court squarely put the blame for the repeated violations
of its orders on the plaintiffs’ counsel, the record demonstrated that
the plaintiffs were aware of the misconduct.
Argued September 16—officially released December 8, 2020
Procedural History
Action to recover damages for, inter alia, the allegedly
wrongful death of the named plaintiff’s decedent as a
result of the defendants’ negligence, and for other relief,
brought to the Superior Court in the judicial district of
New Haven, where the court, Wilson, J., granted the
defendants’ motion to dismiss and rendered a judgment
of dismissal, from which the plaintiffs appealed to this
court. Affirmed.
Paul T. Edwards, with whom was Bruce Jacobs, for
the appellants (plaintiffs).
Patrick M. Noonan, with whom, on the brief, was
Kristianna L. Sciarra, for the appellees (defendants).
Opinion
BRIGHT, C. J. The plaintiffs, Enrico Vaccaro (Attor-
ney Vaccaro), acting as the administrator of the estate
of Marie J. Vaccaro (decedent), and Enrico F. Vaccaro,
the now deceased husband of Marie J. Vaccaro,1 appeal
from the judgment of the trial court dismissing for fail-
ure to prosecute with due diligence2 their substitute
complaint against the defendants, Christopher P. Los-
calzo, Cardiology Associates of New Haven, P.C., Yale
Medical Group, Yale University School of Medicine, and
Yale New Haven Hospital, Inc. The plaintiffs claim that
the court abused its discretion in dismissing the substi-
tute complaint. We affirm the judgment of the trial
court.
The trial court, in a very thorough memorandum of
decision, set forth the following procedural history of
this case. ‘‘On May 26, 2016, the plaintiff[s] . . . com-
menced this wrongful death [and loss of consortium]
action by service of writ, summons and complaint
against the defendants . . . . The return date is June
21, 2016, and the original complaint was returned to
court on June 3, 2016. The original complaint contains
six counts . . . .
‘‘The plaintiffs divide the six count complaint into two
parallel sets of postmortem and antemortem claims.
Counts one through three of the plaintiffs’ complaint
assert claims for wrongful death, loss of consortium,
and a claim for reimbursement for any liability incurred
per [General Statutes] § 46b-37 for antemortem or post-
mortem expenses, relating to the decedent’s treatment,
stroke, and death. Counts four through six of the plain-
tiffs’ complaint assert antemortem claims for medical
malpractice, loss of consortium, and a claim for reim-
bursement for any liability incurred per § 46b-37 for
antemortem expenses, relating to the decedent’s treat-
ment and stroke. . . .
‘‘On January 17, 2017, counsel filed a joint scheduling
order [that] was approved by the court on January 19,
2017. The scheduling order included the following fil-
ing deadlines:
‘‘File certificate of closed pleadings: March 1, 2017
‘‘Exchange written discovery requests: April 1, 2017
‘‘Exchange discovery responses: June 1, 2017
‘‘Complete fact witness depositions: August 1, 2017
‘‘Disclose the plaintiff[s’] experts: October 15, 2017
‘‘Depose the plaintiff[s’] experts: December 15, 2017
‘‘Disclose defense experts: March 2, 2018
‘‘Depose defense experts: May 1, 2018
‘‘Trial management conference: May 21, 2018
‘‘Trial: June 5, 2018.
‘‘Despite these clear deadlines, the plaintiff[s] did not
serve any discovery, take any depositions, close the
pleadings, disclose any experts, or respond to outstand-
ing discovery requests. [The defendants’] counsel
attempted to work with the plaintiff[s’] counsel since
the beginning of the case. According to [the defendants’]
counsel, the parties discussed certain revisions to the
complaint, and after said discussions, [the defendants’]
counsel was under the impression that an amended
complaint would be forthcoming. However, after wait-
ing several months for an amended complaint, [the
defendants’] counsel was forced to file a partial motion
to strike.
‘‘On February 17, 2017, the defendants filed a motion
to strike counts three through six of the plaintiffs’ com-
plaint on the ground that they fail to state claims upon
which relief can be granted. The defendants concur-
rently filed a memorandum of law in support of their
motion to strike. The plaintiffs [did not file] an objec-
tion. . . .
‘‘On August 24, 2017, the court granted the motion to
strike counts three, four, five, and six of the plaintiff[s’]
complaint. On October 6, 2017, the defendants
answered the remaining counts of the complaint. On
November 29, 2017, the defendants filed a motion to
dismiss . . . for the plaintiff[s’] failure to diligently
prosecute the case. This motion appeared on the court’s
January 16, 2018 arguable short calendar. Attorney
Joseph Gasser appeared for the defendants, however
the plaintiff[s’] counsel, [Paul T. Edwards], failed to
appear. At oral argument, the court stated that it would
give the plaintiff[s’] counsel until February 5, 2018, to
respond to the motion to dismiss and would reschedule
the matter for argument. . . . As of January 16, 2019,
the date of oral argument on the motion, [the plaintiffs]
still [have] not complied with the scheduling order or
the defendants’ request for discovery.
‘‘[O]n February 7, 2018, the court denied the defen-
dant[s’] motion to dismiss and issued the following
order: [February 28, 2018 10 a.m.] This case is scheduled
for a status conference with the Honorable Robin L.
Wilson on the date and time shown above. All counsel
of record must attend. The court further gives notice
that it will hear argument on the record regarding the
defendant[s’] pending motion to dismiss. Counsel for
the plaintiff[s] must appear at the scheduled status con-
ference and hearing and show cause why this action
should not be dismissed and costs awarded for failure
to diligently prosecute. Failure to appear may result in
entry of dismissal or default. Please report to Judge
Wilson’s courtroom at 4C (New Haven Superior Court,
235 Church St., New Haven). . . .
‘‘On November 29, 2017, the same date the defendants
filed their motion to dismiss, they filed a motion for
order of compliance. In that motion, the defendants
move[d] for an order requiring [the plaintiffs] to comply
with the defendants’ interrogatories and requests for
production dated July 21, 2017, or, in the alternative,
for an order of nonsuit. Responses were due by Septem-
ber 21, 2017; [the plaintiffs] [have] neither responded
nor sought an extension of time to respond. Counsel
for the defendants attempted to resolve [the plaintiffs’]
noncompliance without consuming judicial resources.
. . . Having received no response from [the plaintiffs’]
counsel, the defendants respectfully request[ed] that
this court either order [the plaintiffs] to respond or
enter an order of nonsuit against [the plaintiffs] for
failure to comply with [their] discovery obligations.
. . . On February 7, 2018, the court ordered the plain-
tiff[s] to comply with discovery by March 2, 2018.
‘‘In accordance with the court’s order issued on Feb-
ruary 7, 2018, a status conference was held on February
28, 2018. At the status conference, [the plaintiffs’] coun-
sel acknowledged that compliance with the deadlines
set forth in the scheduling order had not been met,
nor had discovery been produced in response to the
defendants’ discovery requests which were due on Sep-
tember 21, 2017. [The plaintiffs’] counsel relayed to the
court and to [the defendants’] counsel personal reasons
why deadlines were not met and discovery compliance
had not been met. After discussions with both counsel,
the court issued the following order in accordance with
the discussions at the status conference: Pursuant to a
status conference held on February 28, 2018, the parties
have agreed to file a joint modified scheduling order
on or before March 14, 2018. Failure to comply with the
court’s order by filing said modified scheduling order
on the date herein ordered could result in the entry of
a dismissal or default against the noncomplying party.
. . . On March 16, 2018, [the plaintiffs’] counsel filed
a modified scheduling order signed by both counsel,
and the court approved same on March 20, 2018. The
modified scheduling order . . . included the following
deadline dates:
‘‘File certificate of closed pleadings: March 31, 2018
‘‘Exchange written discovery requests by: June 1,
2018
‘‘Exchange responses to discovery requests by: Sep-
tember 1, 2018
‘‘Any dispositive motions to be filed by: October
15, 2018
‘‘Responses to dispositive motions [to be filed] by:
November 15, 2018
‘‘Dispositive motions shall be marked ready no later
than: December 3, 2018
‘‘Disclose [the plaintiffs’] experts by: August 15, 2018
‘‘Disclose the defendants’ experts by: January 15,
2019
‘‘Complete depositions:
‘‘[The plaintiffs’] fact witnesses by: April 30, 2018
‘‘[The defendants’] fact witnesses by: June 30, 2018
‘‘[The plaintiffs’] experts by: November 1, 2018
‘‘[The defendants’] experts by: April 1, 2019.
‘‘Counsel further agreed that the plaintiff[s] would
respond to the defendants’ outstanding written discov-
ery on/or before March 28, 2018. Based upon the filing
of the modified scheduling order by the parties, and
the court’s approval of same, a trial date was continued
to March 19, 2019, from its original date of June 5, 2018,
and a trial management date was set for March 5, 2019.
‘‘On March 15, 2018, seven months after the court’s
August 24, 2017 ruling on the defendants’ motion to
strike, the plaintiff[s] filed a substituted complaint. The
. . . substituted complaint, which was filed a year ago,
still contains a noncognizable statutory claim under
. . . § 46b-37, which was stricken by this court. In addi-
tion, the plaintiff Enrico F. Vaccaro died in May, 2016,
nearly three years ago and his estate has not been substi-
tuted as the proper party in this case.
‘‘Due to the plaintiff[s’] counsel’s continued failure
to prosecute this case, by failing to comply with sched-
uling orders, and by failing to respond to the defendants’
request for discovery, the defendants, again, on October
15, 2018, moved to dismiss the case for lack of diligence.
The defendant[s] also filed a motion for summary judg-
ment on grounds that the plaintiff[s] failed to disclose
an expert in support of [their] medical negligence claim
and derivative loss of consortium claim and therefore
could not meet [their] burden of proof, thus, entitling
the defendants to judgment as a matter of law. Both
motions were scheduled for oral argument on Decem-
ber 10, 2018. During oral argument on the motions,
counsel for the plaintiff[s] represented that he needed
to get out of the case due to health issues and personal
issues and requested thirty days to allow the plaintiff[s]
to obtain new counsel. Counsel for the plaintiff[s]
acknowledged on the record that the case had not
moved forward, and that the lack of prosecution of the
case was no fault of the plaintiff[s’] but rather [was]
counsel’s fault. Counsel further stated that if the court
was going to issue a sanction for failure to prosecute
with diligence, it should sanction counsel. Attorney
Edwards asked the court for thirty days so that he could
assist the plaintiff in obtaining new counsel. The court
granted [Attorney Edwards’] request and gave him until
January 9, 2019, to file a withdrawal of appearance
in accordance with [Practice Book] § 3-10. The court
further ordered that an appearance by new counsel
be filed by no later than January 9, 2019. The court
rescheduled oral argument on the motion to dismiss
. . . and the motion for summary judgment . . . for
January 14, 2019. The court heard oral argument on
January 14, 2019. The [plaintiffs’] counsel failed to com-
ply with the court’s order of January 9, 2019. At oral
argument on January 14, 2019, [Attorney Edwards]
stated that the reason he did not file the withdrawal
was because he was not comfortable filing the motion
to withdraw and leav[ing] [Attorney Vaccaro] hanging.
Counsel stated that he had been making attempts to
assist [A]ttorney Vaccaro in obtaining new counsel, and
that he did not want to abandon him without assisting
him in obtaining new counsel. . . .
‘‘On January 14, 2019, after the court heard argument,
it issued the following order: Based upon argument
before the court on January 14, 2019, the court hereby
issues the following order. By no later than February
13, 2019, counsel for the plaintiff[s] shall file a with-
drawal of appearance in accordance with Practice Book
§ 3-10. It is further ordered that by no later than Febru-
ary 13, 2019, the plaintiff[s] shall file appearance[s] as
self-represented [parties]3 or new counsel shall file an
appearance by said date. All expert disclosures shall
be filed by no later than February 13, 2019. Oral argu-
ment on the motion to dismiss . . . and motion for
summary judgment . . . is rescheduled for Monday,
February 18, 2019, at 9:30 a.m. . . . Any supporting or
opposing memoranda must be on file no later than the
previous Thursday. . . . [A]ttorney Vaccaro is hereby
ordered to appear at oral argument. No continuances
will be granted absent compelling reasons and for good
cause shown. In light of the court’s ruling above, jury
selection in this case is continued to July 12, 2019. A
[trial management conference] is scheduled for June
28, 2019, at [11 a.m.] The clerk is directed to schedule
oral argument and the new trial and [trial management
conference] dates in accordance with the court’s order.
. . . At the request of the plaintiff[s’] counsel, and with
the consent of the defendant[s’] counsel, oral argument
was continued from February 18, 2019, to March 11,
2019.
‘‘On March 11, 2019, the plaintiff[s’] counsel and the
defendants’ counsel appeared. Although the court
ordered the plaintiff [A]ttorney Vaccaro to appear, due
to a medical condition, the court allowed him to appear
by phone. As of March 11, 2019, the plaintiff[s’] counsel
failed to comply with the court’s January 14, 2019 order.
A new appearance of counsel was not filed on or before
February 13, 2019, and had not been filed as of the date
of oral argument. Expert disclosures were filed the day
after the court-ordered deadline without any explana-
tion from counsel of any compelling reason or good
cause for missing the court-ordered deadline.
‘‘Again, after the court having given the plaintiff[s’]
counsel ample opportunity to get this case on track and
obtain new counsel . . . he failed to do so. Moreover,
[A]ttorney Vaccaro vehemently objected to counsel’s
motion to withdraw appearance and disputed the repre-
sentations made to the court by the plaintiff[s’] counsel
regarding counsel’s assistance in obtaining new counsel
. . . . [Attorney] Vaccaro further represented that he
looked at the Judicial Branch website and noticed that
not much was going on with the case. He contacted
Attorney Edwards, [who] represented to him, at that
time, that he was going to get the case on track. [Attor-
ney] Vaccaro represented that he hired Attorney
Edwards in 2016, and that he just learned, in February,
2019, of [A]ttorney Edwards’ need to withdraw from
the case, and the basis of [A]ttorney Edwards’ motion
to withdraw. [Attorney] Vaccaro further represented
that to allow [A]ttorney Edwards to withdraw under
the circumstances would significantly prejudice his
interests. He further argued that [A]ttorney Edwards
had not established good cause, under rule 1.16 of the
[R]ules of [Professional] [C]onduct to withdraw from
the case. After hearing argument of all counsel, the
court ruled from the bench on [Attorney Edwards’]
motion to withdraw and denied the motion. The court
advised the parties that it would take the motion to
dismiss under consideration and issue a written deci-
sion on the motion.’’ (Citations omitted; footnote added;
internal quotation marks omitted.)
On April 8, 2019, the court, pursuant to Practice Book
§ 14-3 (a), granted the defendants’ motion to dismiss
for failure to prosecute with due diligence. In its deci-
sion, the court reasoned as follows: ‘‘The plaintiff[s]
commenced the present action in May, 2016, nearly
three years ago. In the nearly three years since the
commencement of this case, the case has barely been
advanced. . . . [I]n January, 2017, the parties jointly
submitted a scheduling order, which the court
approved. Pursuant to this scheduling order, trial was
scheduled for June 5, 2018. Despite the clear deadlines
set forth in the scheduling order, the plaintiff[s] failed
to serve any discovery, take any depositions, close the
pleadings, timely disclose any experts, or respond to
outstanding discovery requests.
‘‘In addition, [the] defendants filed a motion to strike,
to which the plaintiff[s] failed to object, or, appear at
oral argument. The court granted the motion to strike,
and, although the plaintiff[s] filed a substituted com-
plaint, the complaint still contains a noncognizable stat-
utory claim under . . . § 46b-37, which was stricken
by the court on August 24, 2017. In addition, the plaintiff
Enrico F. Vaccaro, who has a loss of consortium claim,
died in May, 2016, nearly three years ago, and his estate
has not been substituted as the proper party.
‘‘Due to the plaintiff[s’] inaction on this case, the
defendants filed a motion to dismiss on November 29,
2017. This court denied the motion on February 7, 2018,
and scheduled the matter for a status conference on
February 28, 2018. The parties appeared for the status
conference at which time [the] plaintiff[s’] counsel
requested additional time to comply with discovery,
and represented to the court that he would get the case
back on track. Based upon counsel’s representations
at the status conference, the court ordered counsel to
jointly file a modified scheduling order by no later than
March 14, 2018. [The] [plaintiffs’] counsel filed the modi-
fied scheduling order on March 16, 2018, and the court
approved same on March 20, 2018. Pursuant to the
modified scheduling order, the trial in this case was
continued from its original date of June 5, 2018, to
March 19, 2019.
‘‘Between March, 2018 and October, 2018, counsel
for the plaintiff[s] did absolutely nothing on the case,
despite his representations to the court at the status
conference held in February, 2018, and despite the clear
deadlines set forth in the modified scheduling order.
On October 15, 2018, the defendants again filed a motion
to dismiss for lack of diligence. The court scheduled a
show cause [hearing] . . . for Monday, December 10,
2018, at 9:30 a.m. . . . [ordering] [t]he plaintiff[s] . . .
to produce the requested discovery by said date or
appear and show cause why a dismissal should not be
entered for failing to prosecute this case. . . . Counsel
appeared on December 10, 2018. At the hearing, [the]
plaintiff[s’] counsel represented to the court that he
was having personal issues and that he needed to get
out of the case and that he wanted thirty days to file
a motion to withdraw and to assist [the plaintiff] [A]ttor-
ney Vaccaro in getting new counsel. Attorney Edwards
acknowledged that the case had not been prosecuted
diligently and that the status of the case was no fault
of counsel’s client but [was] due to his own actions.
Pursuant to this hearing, the court issued an order
directing Attorney Edwards to file a motion to withdraw
by January 9, 2019, and that new counsel file an appear-
ance by January 9, 2019. The court rescheduled argu-
ment on the motion to dismiss and motion for summary
judgment for January 14, 2019. [Attorney Edwards]
appeared on January 14, 2019, and once again . . .
failed to comply with the court’s order. Pursuant to the
January 14, 2019 hearing, the court ordered counsel for
the plaintiff[s] to file a motion to withdraw by no later
than February 13, 2019. The court further ordered [the
plaintiff] [Attorney Vaccaro] to file an appearance as a
self-represented party or [to have] new counsel file an
appearance by no later than February 13, 2019. [See
footnote 3 of this opinion.] The court rescheduled oral
argument on the motions to dismiss and for summary
judgment for February 18, 2019. In light of the court’s
January 14, 2019 order, the court continued the trial in
this matter to July 12, 2019. The court further ordered
[the plaintiff] [A]ttorney Vaccaro to appear at the Febru-
ary 18, 2019 hearing. . . . [A]t the request of [Attorney
Edwards], and with the consent of [the] defendants’
counsel, the February 18, 2019 hearing was continued
to March 11, 2019. . . . As of the date of the March
11, 2019 hearing, there had been zero discovery. The
plaintiff[s] had not responded to basic discovery
requests, which were served back in July, 2017. This
court had twice ordered the plaintiff[s] to respond to
discovery without avail. No depositions have occurred
despite the defendant[s’] multiple notices for [the] plain-
tiff[s’] depositions. The pleadings have not been closed.
‘‘[The] [p]laintiff[s’] [counsel] has failed to correct
defects in his complaint in accordance with the court’s
ruling on the defendant[s’] motion to strike, and an
estate has not been substituted as the proper party for
the plaintiff decedent Enrico F. Vaccaro, who died in
May, 2016. This court on numerous occasions has pro-
vided the plaintiff[s’] counsel with every opportunity
to get this case on track, whether it be by way of the
granting of a continuance so that counsel could conduct
discovery and disclose experts, or whether it was for
the purpose of withdrawing from the case and assisting
[A]ttorney Vaccaro in obtaining new counsel. Counsel
simply failed to comply with the court’s orders. . . .
‘‘Accordingly, for the foregoing reasons, the court
concludes that the plaintiff[s] [have] failed to prosecute
this case with diligence, and the defendants have been
severely prejudiced as a result of same. The defendants’
motion to dismiss is therefore granted.’’
After the court rendered its judgment, the plaintiffs’
filed a motion for reargument, which the court denied
on April 30, 2019. On May 17, 2019, the plaintiffs filed
the present appeal. The plaintiffs also filed a motion to
open with the trial court, which the court denied on
June 10, 2019. The plaintiffs did not amend their appeal
to include the court’s denial of its motion to open.4
On appeal, the plaintiffs claim that the court abused
its discretion in dismissing the substitute complaint for
failure to prosecute with due diligence under Practice
Book § 14-3. See footnote 2 of this opinion. They argue
that the sanction of dismissal was disproportionate
‘‘under the totality of the circumstances, particularly
where lesser sanctions were available and appropriate,
and the plaintiffs, themselves, were not, in any way,
responsible for the status of the case and the failure to
comply with discovery.’’ In response, the defendants
argue that ‘‘[t]he record reveals a flagrant and persistent
pattern of violating not one, but half a dozen, court
orders over the course of one year. . . . In three years,
no discovery had been completed . . . . The trial court
was patient and clear with each order, granting many
extensions and continually warning that the case was
subject to dismissal if [the] plaintiffs did not comply.
. . . This persistent pattern of complete neglect was
more than a sufficient basis for the trial court to exer-
cise its discretion and dismiss this case for failure to
prosecute with reasonable diligence.’’ (Citation omit-
ted; internal quotation marks omitted.) We agree with
the defendants.
‘‘Practice Book § 14-3 (a) permits a trial court to
dismiss an action with costs if a party fails to prosecute
the action with reasonable diligence. The ultimate
determination regarding a motion to dismiss for lack
of diligence is within the sound discretion of the court.
. . . Under [§ 14-3], the trial court is confronted with
endless gradations of diligence, and in its sound discre-
tion, the court must determine whether the party’s dili-
gence falls within the reasonable section of the dili-
gence spectrum. . . .
‘‘We review the trial court’s decision for abuse of
discretion. . . . In determining whether a trial court
abused its discretion, the unquestioned rule is that great
weight is due to the action of the trial court and every
reasonable presumption should be given in favor of its
correctness. . . . In determining whether there has
been an abuse of discretion, the ultimate issue is
whether the court could reasonably conclude as it
did. . . .
‘‘A trial court properly exercises its discretion to dis-
miss for failure to prosecute [with reasonable diligence]
if the case has been on the docket for an unduly pro-
tracted period or the court is satisfied from the record
or otherwise that there is no real intent to prosecute
. . . .’’ (Footnote omitted; internal quotation marks
omitted.) Fleischer v. Fleischer, 192 Conn. App. 540,
546, 217 A.3d 1028 (2019).
‘‘The court’s discretion, however, is not unfettered; it
is a legal discretion subject to review. . . . [D]iscretion
imports something more than leeway in decision-mak-
ing. . . . It means a legal discretion, to be exercised
in conformity with the spirit of the law and in a manner
to subserve and not to impede or defeat the ends of
substantial justice. . . . In addition, the court’s discre-
tion should be exercised mindful of the policy prefer-
ence to bring about a trial on the merits of a dispute
whenever possible and to secure for the litigant his day
in court.’’ (Internal quotation marks omitted.) Harris
v. Neale, 197 Conn. App. 147, 157, 231 A.3d 357 (2020).
‘‘[E]ven though a trial court has wide discretion in
determining whether to dismiss an action for failure to
prosecute it with due diligence, there are limits to this
discretion. Importantly, sanctions imposed by the court
must be proportional to the violation or misconduct.
. . .
‘‘Our Supreme Court has identified the following fac-
tors as relevant to determining the proportionality of
a sanction: the nature and frequency of the misconduct,
notice of the possibility of a sanction, the availability
of lesser sanctions, and the client’s participation in or
knowledge of the misconduct. . . . Our Supreme
Court also noted that these principles reflect that, in
assessing proportionality, a trial court must consider
the totality of the circumstances, including, most
importantly, the nature of the conduct itself. . . .
[Although] . . . the[se] . . . factors were established
[by our Supreme Court in Millbrook Owners Assn., Inc.
v. Hamilton Standard, 257 Conn. 1, 776 A.2d 1115
(2001)] in the context of noncompliance with discovery
orders, [they apply to all sanction orders, including]
. . . a failure to prosecute with due diligence pursuant
to Practice Book § 14-3.’’ (Citations omitted; emphasis
in original; footnote omitted; internal quotation marks
omitted.) Fleischer v. Fleischer, supra, 192 Conn. App.
548–49, citing Ridgaway v. Mount Vernon Fire Ins. Co.,
328 Conn. 60, 71–73, 176 A.3d 1167 (2018) (holding
that proportionality test set forth in Millbrook Owners
Assn., Inc., applies to all sanctions of nonsuit). We
examine the Ridgaway factors in relation to the pres-
ent case.
‘‘With respect to the first factor, the nature and fre-
quency of the misconduct, it is logical that particularly
egregious or frequent misconduct, such as repeated
refusals to comply with a court order, warrants more
severe sanctions.’’ Fleischer v. Fleischer, supra, 192
Conn. App. 549. In the present case, the court carefully
set forth in its memorandum of decision a pattern of
misconduct by the plaintiffs over the course of three
years, which included the repeated failure to comply
with discovery requests, the repeated failure to comply
with court-ordered deadlines, the failure to replead
properly after the defendants’ motion to strike had been
granted in 2017, and the failure to substitute a proper
party for a deceased party.
‘‘With respect to the next factor—notice of the possi-
bility of a sanction—our Supreme Court noted [in Rid-
gaway v. Mount Vernon Fire Ins. Co., supra, 328 Conn.
74] that in instances in which our appellate courts have
upheld the sanction of a nonsuit, a significant factor
has been that the trial court put the plaintiff on notice
that noncompliance would result in a nonsuit.’’ (Empha-
sis in original.) Fleischer v. Fleischer, supra, 192 Conn.
App. 550. In the present case, the defendants, in Novem-
ber, 2017, began requesting a judgment of dismissal as
a sanction for the plaintiffs’ failure to prosecute this
case with due diligence. The court repeatedly notified
the plaintiffs that a dismissal would be forthcoming if
they continued their pattern of delays. Clearly, they
were on notice.
‘‘Next, in evaluating the third factor, i.e., the availabil-
ity of lesser sanctions, [our Supreme Court has] noted
that [it] has refused to uphold a sanction of nonsuit
when there were available alternatives to dismissal that
would have allowed a case to be heard on the merits
while ensuring future compliance with court orders.’’
(Internal quotation marks omitted.) Id., 550–51; see id.,
551 (noting that trial court in that case had not stated
on record that it had considered lesser sanction before
rendering judgment of dismissal). In the present case,
the court repeatedly issued new orders with which, the
plaintiffs, again and again, failed to comply. The case
had been stalled on the court’s docket for approxi-
mately three years, and the plaintiffs had failed to com-
ply with several of the court’s orders, including discov-
ery orders. The court made a gallant effort to move
things along, but the plaintiffs appeared unwilling to
do so. Although the court did not state on the record
that alternatives to dismissal had been considered, the
court repeatedly employed alternatives by issuing new
orders and warnings of dismissal to the plaintiffs. We
conclude, therefore, that the court demonstrated the
use of alternatives to dismissal, but that these alterna-
tives failed. Further alternatives were not required.
Moreover, the only alternative suggested by the plain-
tiffs, sanctioning counsel, would not have served the
interest of the court or mitigated the impact on the
defendants from the plaintiffs’ failure to prosecute the
case with due diligence. The trial court has an interest
in ensuring that its orders are respected and followed.
The court also has an interest in the timely resolution
of the cases on its docket. Similarly, the defendants
had an interest in the prompt resolution of the plaintiffs’
allegations that the defendants had engaged in medical
malpractice. Sanctioning counsel for his failure to fol-
low court orders and advance the case would not have
brought the case any closer to resolution. In fact, it
is undisputed that, at the time the court rendered its
judgment of dismissal, the case, due to the plaintiffs’
inaction, in no way was close to being ready for trial,
and sanctioning counsel would not have made it so. In
this regard, the present case is markedly different than
Fleischer, on which the plaintiffs principally rely. In
Fleischer, we concluded that the trial court abused its
discretion in ordering a disciplinary dismissal, in part
because the parties were prepared to proceed with a
hearing on the merits on the very day that the court
dismissed the case due to counsel’s prior delay in prose-
cuting the matter. Fleischer v. Fleischer, supra, 192
Conn. App. 550. As we noted: ‘‘There was nothing fur-
ther the defendant needed to do to comply with [Prac-
tice Book] § 14-3, as he was already willing and able to
prosecute the motions that day.’’ Id.5 That certainly was
not the circumstance facing the trial court in the present
case when it rendered its judgment of dismissal.
‘‘As to the last factor, i.e., the client’s participation
in or knowledge of the misconduct, [our Supreme Court
has] stated that [w]hether the misconduct was solely
attributable to counsel and not to the party also has
been a factor in assessing whether a less severe sanction
than a nonsuit or dismissal should have been ordered.’’
(Internal quotation marks omitted.) Id., 551. In the pres-
ent case, on December 10, 2018, the court heard argu-
ment on the defendants’ motions to dismiss and for
summary judgment. During argument, Attorney
Edwards told the court that the defendants had been
‘‘exceedingly gracious throughout this matter’’ and that
he, regretfully, needed to withdraw from the case due
to health and personal issues. He requested thirty days
to allow the plaintiffs to obtain new counsel. Attorney
Edwards acknowledged on the record that the failure
to prosecute the case was his fault and not the fault of
the plaintiffs. He also stated that he needed thirty days
to assist the plaintiffs in obtaining new counsel. The
court admonished Attorney Edwards because there had
been no movement in this case. The court, however,
gave Attorney Edwards until January 9, 2019, and it
rescheduled oral argument on the plaintiffs’ motions to
January 14, 2019.
At the January 14, 2019 hearing, Attorney Edwards
stated that he had been making attempts to assist Attor-
ney Vaccaro in obtaining new counsel. He stated that
he had spoken to two different attorneys. The court,
again, admonished Attorney Edwards for failing to fol-
low the court’s orders. It then issued an order requiring
Attorney Edwards to file a motion to withdraw his
appearance on or before February 13, 2019. It further
ordered Attorney Vaccaro to file an appearance by that
date or to have new counsel do so. The court again
rescheduled the hearing on the defendants’ motions to
dismiss and for summary judgment for February 18,
2019. The court also ordered Attorney Vaccaro to
appear for that hearing. That hearing, however, at the
plaintiffs’ request, again was rescheduled, this time to
March 11, 2019.
At the March 11, 2019 hearing, Attorney Edwards
informed the court that Attorney Vaccaro was unable
to appear at the courthouse, and he suggested that the
court call him by telephone. The court, obviously, was
troubled by another direct violation of its orders, but
it did allow Attorney Edwards to contact Attorney Vac-
caro via his cell phone. As of the date of the hearing,
March 11, 2019, Attorney Vaccaro had neither hired
new counsel nor filed an appearance, despite having
been ordered by the court to do so on or before Febru-
ary 13, 2019. No apparent effort had been made by the
plaintiffs to comply with the court’s January 14, 2019
order. During the hearing, Attorney Vaccaro objected
to Attorney Edwards’ withdrawal. Although he admitted
knowing that Attorney Edwards needed to withdraw
from the case for ‘‘about a month or so,’’ he contended
that he had been unable to find replacement counsel.
Although Attorney Vaccaro stated that, in 2018, he was
unaware of the delays in this case, he admitted that he
‘‘found out about [it] this year . . . .’’ He also told the
court that he had checked the Judicial Branch website
and that anyone ‘‘who looks at the judicial website sees
that little or nothing has been done in this case.’’ That
online judicial docket contains all of the orders of the
court, as well as its repeated warnings that the case
would be dismissed if the plaintiffs’ failed to comply
with the court’s orders. Although the court in this case
squarely put the blame for the repeated violations of
its orders on Attorney Edwards, we conclude that the
record demonstrates that the plaintiffs were aware of
the misconduct.
Our Supreme Court has observed that ‘‘[i]n the disci-
plinary dismissal context . . . [a] trial court, for exam-
ple, might find an attorney’s misconduct to be egregious
if the attorney represented that his nonappearance was
caused by difficulties with his car without disclosing
that he had ready access to alternative transportation.
A trial court might make a similar finding if, in one case,
the attorney repeatedly, and without credible excuse,
delayed scheduled court proceedings. Nonappearances
that interfere with proper judicial management of cases,
and cause serious inconvenience to the court and to
opposing parties, are categorically different from a
mere failure to respond to a notice of dormancy pursu-
ant to Practice Book § 251 [now § 14-3]; see Lacasse v.
Burns, [214 Conn. 464, 474, 572 A.2d 357 (1990)]; or a
single failure to appear, in a timely fashion, after a
luncheon recess. See Gionfrido v. Wharf Realty, Inc.,
[193 Conn. 28, 34 n.6, 474 A.2d 787 (1984)]. Ruddock v.
Burrowes, [243 Conn. 569, 576 n.12, 706 A.2d 967
(1998)].’’ (Internal quotation marks omitted.) Plante v.
Charlotte Hungerford Hospital, 300 Conn. 33, 50–51
n.17, 12 A.3d 885 (2011). In light of the record in this
case, including the court’s repeated efforts to accommo-
date the plaintiffs, and, on the basis of the foregoing
analysis of the Ridgaway factors, we conclude that the
court’s sanction of dismissal was proportional to the
plaintiffs’ misconduct. Accordingly, the court did not
abuse its discretion.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Apparently, the plaintiff Enrico F. Vaccaro died in May, 2016, but his
estate has never been substituted as the proper party in this case. Appellate
counsel for the plaintiffs has listed Enrico F. Vaccaro as a party to this
appeal. Because the propriety of this failure to substitute is not relevant to
the issues on appeal, we consider the appeal as filed.
2
Practice Book § 14-3 (a) provides: ‘‘If a party shall fail to prosecute an
action with reasonable diligence, the judicial authority may, after hearing,
on motion by any party to the action pursuant to Section 11-1, or on its
own motion, render a judgment dismissing the action with costs. At least
two weeks’ notice shall be required except in cases appearing on an assign-
ment list for final adjudication. Judgment files shall not be drawn except
where an appeal is taken or where any party so requests.’’
3
We note that the court misstated that Attorney Vaccaro could file an
appearance as a ‘‘self-represented party.’’ Rather, he could have filed an
appearance as the attorney acting on behalf of himself as the administrator
of the estate.
4
We note that ‘‘[d]isciplinary dismissals pursuant to Practice Book § 14-
3 . . . may be set aside and the action reinstated to the docket upon the
granting of a motion to open filed in accordance with Practice Book § 17-
43 and [General Statutes] § 52-212. Bank of New York Mellon v. Horsey, 182
Conn. App. 417, 429, 190 A.3d 105, cert. denied, 330 Conn. 928, 194 A.3d
1195 (2018); cf. Pump Services Corp. v. Roberts, 19 Conn. App. 213, 216, 561
A.2d 464 (1989) (concluding that proper way to open judgment of dismissal
rendered pursuant to predecessor to Practice Book § 14-3 is to file motion
to open pursuant to predecessor to Practice Book § 17-4, which parallels
General Statutes § 52-212a).’’ (Internal quotation marks omitted.) Harris v.
Neale, 197 Conn. App. 147, 156, 231 A.3d 357 (2020). In Harris, we recognized
that ‘‘there is a conflict in our case law as to whether a motion to open a
judgment of dismissal rendered pursuant to Practice Book § 14-3 is governed
by § 52-212 and Practice Book § 17-43 or § 52-212a and Practice Book § 17-
4.’’ Id., 156 n.9. Because this conflict does not affect the outcome of this
appeal, we need not address it at this time.
5
We further noted in Fleischer that, unlike in the present case, the court
provided little or no prior notice of the possibility that it would render a
disciplinary dismissal. Fleischer v. Fleischer, supra, 192 Conn. App. 550.
Furthermore, unlike in the present case, the trial court in Fleischer had
alternatives to dismissal available to it that would have addressed the preju-
dice claimed by the plaintiff. See id., 552–53.