Opinion
No. CV 10 6002504 S
March 23, 2011
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#114)
The defendant, Harry A. Banziruk, filed a motion for summary judgment (#114) on the ground that there is no genuine issue of material fact that the plaintiff, Michael Banziruk, is not entitled to relief because his action was not commenced within the applicable statute of limitations. The court finds that genuine issues of material fact exist. Accordingly, the motion for summary judgment is denied.
I FACTS
The present case involves an appeal from the decision of the court of probate, district of Torrington, Magistrali, J., denying the plaintiff's claim for $245,880 against the estate of Mary K. Banziruk (decedent) filed on or about August 10, 2009. In his claim to the probate court, the plaintiff represented the following facts: The decedent was, at the time of her death and her estate is still, owner of property located at 92 Woodbine Street, Torrington, Connecticut; before and after September 12, 2003, the date of the decedent's death, the plaintiff financially maintained the property, including, but not limited to, paying for property taxes, utilities, maintenance and repairs; before and after September 12, 2003, the plaintiff paid for the care of Harry N. Banziruk, the decedent's husband, for an extended period of time, for the benefit of the decedent and at her request; and the plaintiff has not received any manner of payment or reimbursement for those expenses. By decree dated May 20, 2010, the probate court denied the plaintiff's claim against the estate on the basis that the claim was not presented within two years of the decedent's death, citing General Statutes § 45a-353, et seq., as the statutory scheme for the presentation and payment of ante-mortem claims against a decedent's estate for decedent's dying on or after October 1, 1987.
On June 4, 2010, the plaintiff filed a complaint in the superior court against the defendant in his capacity as the beneficiary of the estate of the decedent. The plaintiff alleges that he was, and currently is, the executor of the estate of the decedent having been appointed on or about December 16, 2003, by the Torrington probate court. At all relevant times, the beneficiaries of the decedent's estate were the plaintiff, the defendant, and Nicholas Banziruk. The plaintiff alleges that he filed his claim with the probate court after presenting it, on or about December 16, 2003, to the defendant who was, at the time, co-executor of the decedent's estate and to Nicholas Banziruk in April 2004. The plaintiff appeals the decision of the probate court and alleges that his claim is not untimely because, as a fiduciary of the estate, his claim is governed by General Statutes § 45a-367, not General Statutes §§ 45a-358 and 45a-375(c).
Nicholas Banziruk, another beneficiary, was also named as a defendant but is not a party to the present motion for summary judgment.
On November 4, 2010, the defendant filed the present motion for summary judgment along with a supporting memorandum of law and evidentiary support. The defendant argues that he is entitled to judgment as a matter of law because there is no genuine issue of material fact that the plaintiff's claim was not filed within the statute of limitations as set forth by General Statutes § 45a-375(c). On February 22, 2011, the plaintiff filed a memorandum of law in opposition to the defendant's motion for summary judgment along with evidentiary support. The matter was heard on the March 7, 2011 short calendar.
II DISCUSSION A Summary Judgment Standard
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Sherman v. Ronco, 294 Conn. 548, 553-54, 985 A.2d 1042 (2010). "[T]he `genuine issue' aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).
B Analysis
The defendant seeks summary judgment on the ground that there is no genuine issue of material fact that the plaintiff is not entitled to relief because the plaintiff's action was not commenced within the applicable statute of limitations as set forth by General Statutes § 45a-375(c). General Statutes § 45a-375(c) states in relevant part: "[N]o claim may be presented and no suit on such claim may be commenced against the fiduciary, the estate of the decedent, or any creditor or beneficiary of such estate but within (1) two years from the date of the decedent's death or (2) the date upon which the statute of limitations applicable to such claim, including any period of limitation established pursuant to section 45a-357, would otherwise have expired, whichever shall first occur." According to the defendant, the plaintiff's claim is untimely based on the following time line: The decedent died on September 12, 2003; the plaintiff and the defendant were appointed co-executors of the estate on or about December 16, 2003; notice was published to potential creditors to present any claim to the fiduciary on or about December 20, 2003; two years from the date of the decedent's death was September 12, 2005; and the plaintiff's claim was not filed with the probate court until August 10, 2009. The defendant argues that the plaintiff did not present a claim to the estate prior to the expiration of the two-year period and, therefore, his claim is barred by the statute of limitations. The defendant submits his own affidavit attesting in relevant part: "At no time prior to September 12, 2005 did the plaintiff in this action present any claim to me in my capacity as Executor of the Estate of Mary K. Banziruk or beneficiary of the Estate of Mary K. Banziruk. The plaintiff did not present any claim to me or anyone known to me or the Probate Court until August 18, 2009 . . ."
"Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto." Practice Book § 17-46. In the present case, affidavits submitted by both the plaintiff and the defendant are sufficient.
The plaintiff objects arguing, first, that his claim is timely under General Statutes § 45a-375(c) because he provided his claim, in writing, to the defendant as co-executor in late 2003, and to Nicholas Banziruk, the other beneficiary. The plaintiff submits his own affidavit attesting in relevant part: "In the period of time between the date of death of Mary K. Banziruk on September 12, 2003 . . . and December 16, 2003, the time of the granting of the Application for Probate . . . I provided, in writing, my claim for sums advanced to the deceased, my mother, for the care of my father while he was in a nursing home, in the approximate sum of $150,000.00 at that time . . . Said figures were also provided to the co-defendant, Nicholas Banziruk, in writing as well, on or about April 2004. The Appellee, Harry A. Banziruk, was also notified at several meetings, in writing, of my claim for reimbursement from the Estate of Mary K. Banziruk, which occurred between the time of her death and the appointment of the fiduciaries . . . At times subsequent to the times noted above, the Co-Fiduciary, Harry A. Banziruk, was notified in writing of my claim for reimbursement which was increasing as more bills were incurred for the care of my father . . . At all times as serving as a fiduciary, the defendant/Appellee, Harry A. Banziruk, was aware of my claim for reimbursement from the Estate of Mary K. Bauziruk; and the amounts claimed for reimbursement were provided in writing to him." (Emphasis in original.)
Pursuant to General Statutes § 45a-358, "[e]very claim shall be presented to the fiduciary in writing . . . A claim may be presented to the fiduciary . . . by: (1) Personal delivery to the fiduciary . . .; or (2) mailing by regular, certified or registered mail, postage prepaid, to the fiduciary . . . A claim shall be deemed presented on: (1) The date on which the fiduciary actually receives the claim in the event the claim is presented by delivery to the fiduciary personally; [or] (2) the date of mailing in the event the claim is properly mailed to the fiduciary at the fiduciary's address as set forth in the newspaper notice given under section 45a-354, or in the notice given under section 45a-357, or in the records of the court of probate . . ."
"The purpose of the statute requiring presentation is the protection of the estate and to insure for that reason that the executor shall know exactly what the claims are." Roth v. Ravich, 111 Conn. 649, 653, 151 A. 179 (1930). In Bank Commissioners v. Watertown Savings Bank, 81 Conn. 261, 264, 70 A. 1038 (1908) and Dime Savings Bank v. McAlenney, 76 Conn. 141, 145, 55 A. 1019 (1903), "it was held not sufficient that the executor had learned of the claim in some casual way, but that the knowledge of the claim must be brought to the executor by some act of the claimant . . . This is undoubtedly the rule in this state." Roth v. Ravich, supra. Where a claim is presented in writing, "[i]t cannot be said . . . that the claimant took no action. The form of the writing is of little importance so long as it furnishes information to the executor of the extent of the demand and the character of the transaction out of which it grew." Id.; see Cadle Co. v. D'Addario, 268 Conn. 441, 447-48, 844 A.2d 836 (2004).
In the present case, as demonstrated by the contradicting affidavits, genuine issues of material fact exist concerning whether the plaintiff presented his claim to the defendant. Nonetheless, "[s]ummary judgment may be granted where the claim is barred by the statute of limitations." Doty v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996). Summary judgment is appropriate on statute of limitation grounds when the "material facts concerning the statute of limitations [are] not in dispute . . ." Burns v. Hartford Hospital, 192 Conn. 451, 452, 472 A.2d 1257 (1984). Here, however, as demonstrated by the contradicting affidavits, genuine issues of material fact exist with regard to whether the plaintiff presented his claim to the defendant within the statute of limitations period set forth in General Statutes § 45a-375(c).
As a result, it is not necessary for the court to address the plaintiff's additional arguments that (1) General Statutes § 45a-367 is the applicable statute for the filing of claims by the fiduciary and that his claim is timely under that statute; and (2) that summary judgment is not proper in an appeal from the probate court.
Accordingly, the defendant's motion for summary judgment is denied.