Opinion
No. CV 06 5005440 S
February 29, 2008
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Before the court is the defendant's motion for summary judgment on the grounds that the negligence and recklessness claims that occurred prior to July 21, 2004 are barred by the two-year statute of limitations and that the breach of contract claims that occurred prior to July 21, 2000 are barred by the six-year statute of limitations.
The plaintiff, Rebecca Corbett, commenced this action on July 25, 2006 against the defendants, Ronald Petrillo individually, and Ronald Petrillo as the administrator of the estate of Rudolph Petrillo and of the estate of Elaine Petrillo. The plaintiff has alleged the following facts in her thirteen-count revised complaint. Rudolph Petrillo and Elaine Petrillo, owners of the premises at 1490 Dean Street in New Haven, entered into a lease agreement with the plaintiff on March 1, 2000. Ronald Petrillo, as their agent, was responsible for renting the property, collecting the rent and maintaining and repairing the property. Among the terms of the agreement was that the plaintiff have access to the storage space in the basement. Beginning in 2000 until the present, the plaintiff had numerous problems with leaky pipes, leaking faucets, damaged ceilings and flooding in the basement, all of which caused damage to her property. She notified the defendants on numerous occasions of these problems but they failed either to respond in an adequate and timely manner or not at all. On September 9, 2004, she discovered that portions of her ceiling had collapsed due to a leaky roof resulting again in damage to her property. She notified the defendants and they delayed in repairing the ceiling, failed to fix the leaking roof, and failed to abate the mold caused by water continuously entering through the roof. In October 2004, the New Haven Livable City Initiative (Livable City) determined that the house was in violation of the city building and/or housing code and ordered certain repairs to be performed. Despite this order, the defendants still did not make timely and adequate repairs. Once more, on November 2, 2005, the Livable City found numerous violations of the city housing code and ordered certain repairs to be performed. The result was the same. The defendants failed to make the repairs adequately and timely.
In counts one and five, the plaintiff alleges breach of contract against Rudolph Petrillo and Elaine Petrillo respectively. In counts two and six, the plaintiff alleges claims of unjust enrichment against Rudolph Petrillo and Elaine Petrillo respectively. In counts three, seven and nine, claims of negligence are alleged against Rudolph Petrillo, Elaine Petrillo and Ronald Petrillo respectively; in counts four, eight and thirteen, the plaintiff alleges violations of the Connecticut Unfair Practices Act, (CUIPA) General Statutes § 42-110a et seq. against each defendant respectively. Lastly, in counts ten, eleven and twelve, the plaintiff alleges claims of negligent misrepresentation, reckless misrepresentation and fraud against Ronald Petrillo.
On December 3, 2007, the defendants filed a motion for summary judgment on the grounds that all of the claims alleged in the negligence and recklessness counts that occurred prior to July 21, 2004 are barred by the two-year statute of limitations, General Statutes § 52-584, and that the claims alleged in the breach of contract counts that occurred prior to July 21, 2000 are barred by the six-year statute of limitations, General Statutes § 52-576. Following the granting of an extension of time, the plaintiff filed a memorandum of law in opposition on January 21, 2008. On January 28, 2008, the defendants filed a reply memorandum.
In Connecticut, an action is commenced on the date of service of the writ, summons and complaint upon the defendant; Hillman v. Greenwich, 217 Conn. 520, 527, 587 A.2d 99 (1991); not on the date of the complaint as the parties herein maintain. Therefore, since service of the writ, summons and complaint occurred on July 25, 2006, the applicable date in the present case for purposes of the statute of limitations is July 25, 2006, not July 21, 2006. See Rana v. Ritacco, 236 Conn. 330, 337, 672 A.2d 946 (1996). The statutory time period that governs this case, as alleged by the defendants, for claims of negligence and breach of contract are two and six years respectively. Based on these allegations, all negligence claims prior to July 25, 2004, and all contract claims prior to July 25, 2000 should be barred.
"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 . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle [that party] to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 756-57, 905 A.2d 623 (2006). "As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent." (Internal quotation marks omitted.) Socha v. Bordeau, 277 Conn. 579, 586, 893 A.2d 422 (2006).
As a general rule, "[s]ummary judgment may be granted where the claim is barred by the statute of limitations." Doty v. Mucci, 238 Conn. 800, CT Page 3205 806, 679 A.2d 945 (1996); see also Lind-Larsen v. Fleet National Bank of Connecticut, 84 Conn.App. 1, 8, 852 A.2d 799, cert. denied, 271 Conn. 940, 861 A.2d 514 (2004). Summary judgment is appropriate on statute of limitation grounds "as long as there are no material facts concerning the statute of limitations in dispute." Haggerty v. Williams, 84 Conn.App. 675, 679, 855 A.2d 64 (2004); see Burns v. Hartford Hospital, 192 Conn. 451, 452, 472 A.2d 1257 (1984).
The defendants argue that they are entitled to summary judgment as a matter of law on all counts on the ground that the negligence and recklessness claims that occurred prior to July 21, 2004 are barred by the applicable statute of limitations and the breach of contract claims that occurred prior to July 21, 2000 are barred by their applicable statute of limitations. In support of their motion the defendants filed a memorandum of law, a certified but unsigned copy of the plaintiff's deposition taken on November 1, 2007, a copy of an unauthenticated document entitled "Corbett Property Damage," a copy of an unauthenticated newspaper article posted on the Internet website wtnh.com entitled "Heavy rain floods some streets, basements" dated May 12, 2006, and a copy of § 52-584 and § 52-576. In her response to the motion for summary judgment, the plaintiff objects to the documentation submitted by the defendants arguing that the defendants are "relying upon an uncertified copy of [the] [p]laintiff's deposition and a document which purports to be a copy of a newspaper article containing an alleged admission by the [p]laintiff." The plaintiff does not object to the admissibility of any of the other documents. In their reply memorandum of law, the defendants cite to pre-2005 cases, both from the appellate and superior court, to support their argument that whether deposition testimony may be relied upon when ruling on a motion for summary judgment has not yet been resolved by the Appellate Court and there is a split among the superior courts.
For their appellate authority, the defendants cite to Schratwieser v. Hartford Casualty Ins. Co., 44 Conn.App. 754, 756 n. 1, 692 A.2d 1283, cert. denied, 241 Conn. 915, 696 A.2d 340 (1997), LaSalle National Bank v. Freshfield Meadows, LLC, 69 Conn.App. 824, 798 A.2d 445 (2002) and Stebbins v. Doncasters, Inc., 263 Conn. 231, 234, 819 A.2d 287 (2003). For Superior Court authority, they cite to Oberdick v. Allendale Mutual Ins. Co., Superior Court, complex litigation docket at New Haven, Docket Nos. X07 CV 890283004 X07 CV 890282791 (August 25, 1993, Celotto, J.) [9 Conn. L. Rptr. 607]. These cases were decided prior to the Appellate Court's resolution in New Haven v. Pantani, 89 Conn.App. 675, 678-79, 874 A.2d 849 (2005) on the requirements for the admissibility of documents when ruling on summary judgment motions.
Before resolving the motion for summary judgment, the court must address the adequacy of the supporting documents. Practice Book § 17-45 provides in relevant part: "A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like . . ." "[O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment . . . [and] Practice Book § [17-45] . . . contemplates that supporting [or opposing] documents . . . be made under oath or be otherwise reliable." (Citation omitted; internal quotation marks omitted.) New Haven v. Pantani, 89 Conn.App. 675, 678, 874 A.2d 849 (2005); see also Rockwell v. Quintner, 96 Conn.App. 221, 233-34 n. 10, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006). "The requirement of authentication applies to all types of evidence, including writings . . . Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be." (Citation omitted; emphasis added; internal quotation marks omitted.) New Haven v. Pantani, supra, 679. Although the news article posted on the Internet is not admissible, having not been properly authenticated, the deposition transcript of the plaintiff is certified and, thus, properly admissible as required by New Haven v. Pantani. In addition, the court notes that the plaintiff also relies on the same deposition testimony to demonstrate that issues of fact exist as to the dates at issue.
The plaintiff further counters in her memorandum of law in opposition to the defendants' motion for summary judgment that the defendants have not "demonstrated an absence of any genuine issue of material facts." She maintains that "[t]he defendants are unable to point to any specific items of [the] [p]laintiff's property damage claim that should be barred by the statute of limitations, because the issue of which specific items were lost during which floods was never addressed conclusively during the [p]laintiff's deposition." Therefore, the plaintiff concludes that the "[d]efendants have not met their threshold burden of showing that there is no genuine issue of material facts, as it is clear from the entire testimony of [the] [p]laintiff throughout her deposition, that questions of material fact exist as to when certain of her items were damaged, whether or not certain items damaged in the first flood were replaced and subsequently damaged again, and whether or not the dates given during testimony are accurate, as [the] plaintiff testified that she was unsure of [the] dates."
Negligent and Recklessness Counts
Section 52-584 is the applicable statute of limitations for the negligence and recklessness counts alleged in the present case in counts three, seven, nine, ten, eleven and twelve. That statute provides in relevant part that, "[n]o action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of . . ." General Statutes § 52-584.
Breach of Contract Counts
The plaintiff alleges in counts one and five a claim of breach of contract and in counts two and six a claim of unjust enrichment. These claims are governed by the statutory time limitation in § 52-576(a). That statute provides in relevant part that "[n]o action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues . . ." General Statutes § 52-576(a). As to the claims of unjust enrichment, there is no Connecticut appellate authority that squarely addresses which is the appropriate statute of imitations. "A cause of action for unjust enrichment is generally viewed as sounding in quasi-contract, and the statute of limitations for unjust enrichment is generally held to be six years, Gianetti v. Greater Bridgeport Individual Practice Association, Superior Court, complex litigation docket at Waterbury, Docket No. X02 CV 02 4001686 (July 21, 2005, Schuman, J.) (39 Conn. L. Rptr. 745, 747-48); although some courts have held that under a court's equitable powers, a court may provide a remedy (in unjust enrichment) even though the governing statute of limitations has expired. Vissa v. Pagano, Superior Court, Docket No, CV 98 0168124 (May 1, 2000, Karazin, J.) (27 Conn. L. Rptr. 150, 152), aff'd, 100 Conn.App. 609, 919 A.2d 488 (2007). Thus, at a minimum, the time limitation for claims of unjust enrichment is six years.
Whether There Are Genuine Issues of Fact
In the present case, the defendants have submitted the plaintiff's deposition as evidence that the dates claimed by her are outside the statute of limitations. The plaintiff has alleged in her complaint that the damage to her property was due to (1) the flooding that took place at various times from 2000 to 2004 and (2) the defendants' failure to make the necessary or adequate repairs during the time period from 2000 though 2006. In support of her allegations, the plaintiff also relies on her deposition as evidence that the dates are in dispute as to when the items were damaged, which items were damaged and whether the replaced items were damaged again. The plaintiff also relies on the deposition that whenever the repairs were made, if at all, they were inadequate during this same time period.
The plaintiff testified in her deposition as follows. Shortly after entering into a lease agreement on March 1, 2000, a flood occurred that damaged the items she stored in the basement. Although she had been told that there might be some water in the corner of the basement, she did not expect approximately two feet of water to flood her basement. At the time of the first flood, she was storing in the basement her eldest son's possessions while he was in the service, her summer items and other things she had not yet unpacked. Following this flood, Ronald Petrillo promised to provide and install a sump pump. As a result of the water damage, she wound up throwing out everything, which included approximately thirty boxes and fifteen bags of assorted items. After purchasing replacement items, she placed them into tupperware bins and onto higher pallets in the basement. She also placed her washer and dryer onto the pallets. Not until a year later when ordered by the fire marshal did Ronald Petrillo install the sump pump. After its first use in 2001 however, the replaced sump pump broke because it was too small to handle the amount of water and sludge coming into the basement. She recalled numerous other floods but testified that the items she stored in the basement were not ruined since she had placed them into bins and onto metal shelves. Although her stored items were no longer susceptible to the flooding in the basement, she still had to clean up the basement because of the broken sump pump after each flood by hosing it down and letting the property dry out. The last flood occurred in 2004 when the ceiling collapsed. She maintained that anytime she needed anything to be repaired, Ronald Petrillo failed to do so timely, adequately or not at all, and, therefore, she usually ended up asking someone else to help her.
Her next problem was with the pipes in the upstairs bathroom that broke underneath the tub. Water was dripping into her daughter's bedroom. Eventually, she bought new pipes and fixed the dripping water; however, she went without water for eight days. Then, her upstairs accordion door to the bathroom broke off its hinges. That took eight months to fix. She became so fed up with the lack of repairs that she contacted Livable City, which she believed to be in 2002. Immediately thereafter, Ronald Petrillo provided her with another sump pump and cut a piece of plywood for her bathroom door. She also had a consistent problem with the toilet because the gasket needed to be replaced and the floor beneath the toilet was rotting. Water eventually seeped from the toilet into the basement. In 2003, the kitchen sink backed up so that she had to leave her house. Finally, the sink and toilet were fixed. The toilet came loose again in 2004, however, and this time was never fixed. She stopped asking Ronald Petrillo to repair anything around 2004 since he never did anything and she had concluded that it would be useless to ask him.
The plaintiff was unable to recall whether she contacted Livable City for the first time in 2000 or in 2002.
During a flood in 2004, the roof rotted causing the ceiling to collapse. It took Ronald Petrillo eight days before he started to repair the roof and when he started repairing it, he would fix parts of it here and there and when another area leaked he would attempt to fix that part. He never completely repaired the roof or the ceiling. She also had no kitchen cabinets, a silverware or towel drawer and he never provided her with these when she asked him. During one night a puddle of water developed in her bedroom. Then she noticed some leaking from the ceiling in her living room. The leaking started to occur every time it rained and especially during the time the roof was torn apart and being repaired in parts. The leak in the ceiling spread to include her bedroom, the living room where her son was sleeping and her daughter's bedroom. She recalled that these leaks started in 2003 and were never repaired. Water also continued to come into her bedroom window. By 2004, she noticed mold and mildew everywhere. Also by 2004, she complained to Livable City more often and Ronald Petrillo stopped coming over to make any repairs. In addition, the radiators did not work well. She finally had someone come over to help her fix them. It took five minutes to bleed the radiators. Also, she told Ronald Petrillo about tree branches that needed to be cut because they were dead. He never came over. The tree finally broke and she had someone else remove it and deducted the expense from her rent.
The plaintiff resided at these premises for approximately ten years and during that time recollects having seen Ronald Petrillo a total of five times. After her first few years there she started looking for more suitable places to live. She wanted to stay in the area to keep her children in the same school system but there was not much available in her income bracket. She had to pay others to fix everything that Ronald Petrillo would not. When she deducted these repairs from her rent, he complained. As a result she paid for the repair and replacement of many items herself. In May 2006, the plaintiff vacated the premises because the rain kept coming in through the ceiling, which was never adequately repaired after the flooding in 2004. She recalled starting to look for a new place as early as 2004 through 2006. She also recalled making many complaints to the Livable City, which included complaints about water issues through 2006. She could not remember whether the defendants asked her to move out of the house in 2004 or 2005 so that they could sell the property. She made her last complaint to Livable City on November 2, 2005, and she received the letter from the defendants' attorney to evict the premises on November 15, 2005.
The plaintiff has alleged and provided evidence to demonstrate that the constant mass of water into her home and the failure of the defendants to adequately and timely make the needed repairs continued from approximately 2000 though 2006. Viewing the evidence in a light most favorable to sustaining the legal sufficiency of the allegations, the court is unable to determine the date from which to measure the running of the statutory time limitations. In addition, whether the defendants have engaged in a continuing course of conduct is also a question of fact not appropriate for determination on a motion for summary judgment. Accordingly, the defendants' motion for summary judgment is denied as to counts one, two, three, five, six, seven, nine, ten, eleven and twelve.
CUTPA Counts.
As to the CUTPA violations alleged in counts four, eight and thirteen, the appropriate statue of limitations is General Statutes § 42-110g(f), regardless of the nature of the underlying unfair trade practice that has been asserted. Bellemare v. Wachovia Mortgage Corp., 94 Conn.App. 593, 606, 894 A.2d 335 (2006), aff'd, 284 Conn. 193, 931 A.2d 916 (2007). That statute provides: "An action under this section may not be brought more than three years after occurrence of a violation of this chapter."
The plaintiff's alleged CUTPA violations in these three counts are against Rudolph Petrillo, Elaine Petrillo and Ronald Petrillo. In their motion for summary judgment, the defendants move for judgment on these counts relying on the limitation period in § 52-584 and § 52-576 that govern negligence and contract claims respectively, and not the limitation period in § 42-110g(t). Since the defendants have advanced no arguments as to why the alleged CUTPA claims under § 42-110g(f) are time barred, the court cannot grant their motion for summary judgment on counts four, eight and thirteen. The failure to cite case authority and to make a considered argument constitutes abandonment of that issue. See Kelley v. Tomas, 66 Conn.App. 146, 173, 783 A.2d 1226 (2001) ("Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.").
CONCLUSION
Based on the foregoing, the defendants' motion for summary judgment is denied as to all counts.