Opinion
No. HHB CV 06 5000931 S
October 3, 2006
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT (#110)
In this personal injury action, which arose from a motor vehicle accident, defendant Nicoletti Pasta, LLC (Nicoletti Pasta), has moved for summary judgment. Nicoletti Pasta's motion is accompanied by a memorandum of law and the affidavit of co-defendant Anthony Nicoletti, Jr. The plaintiff, Julie Ouellette, filed no papers in opposition.
The motion appeared on the short calendar for September 18, 2006. The plaintiff did not contest the motion.
I BACKGROUND
In this action, the plaintiff has alleged, in the alternative, that the vehicle which struck the vehicle she was operating was owned either by defendant Nicoletti Pasta or by defendant Anthony Nicoletti, Jr. In count one of her amended complaint (# 104), the plaintiff alleges that, on October 10, 2004, she was the operator of a motor vehicle which was parked in Nicoletti Pasta's parking lot, where Nicoletti Pasta was operating a business known as La Familia, on Route 6 in Bristol, Connecticut. She alleges that a motor vehicle operated by the owner, agent, principal, member and/or duly authorized representative of Nicoletti Pasta, in the furtherance of its business operations, negligently backed into her vehicle.
In count two, she alternatively alleges that the motor vehicle which backed into her vehicle on October 10, 2004 was owned and operated by defendant Anthony Nicoletti, Jr. In each count, the plaintiff also alleges that, as a result of the alleged incident, she sustained personal injuries. Additional references to the facts are set forth below.
II STANDARD OF REVIEW
"Practice Book § 17-49 provides in relevant part that 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.' It is well established that, [i]n 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[s] 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.) Socha v. Bordeau, 277 Conn. 579, 585-86, 893 A.2d 422 (2006).
II DISCUSSION
Nicoletti Pasta argues that its is not a proper party since it did not own the vehicle which was driven by defendant Anthony Nicoletti, Jr. at the time of the accident. In his affidavit, defendant Anthony Nicoletti, Jr. avers that he is the co-owner of Nicoletti Pasta, which is the owner of the property on which La Familia, Inc. is located. He states that the vehicle which he was driving at the time of the accident was his own personal vehicle, that it was not owned by La Familia or by Nicoletti Pasta, and that it was not used in the course of business. In addition, he states that, at the time of the accident, 5:00 p.m. on October 10, 2004, he was not executing any work duties, was not acting in the course of his employment at La Familia, and was not acting in the furtherance of any business of La Familia. Rather, he was on his way home after work. As noted, the plaintiff has filed no papers in opposition to Nicoletti Pasta's submission.
General Statutes § 52-183 states that, "[i]n any civil action brought against the owner of a motor vehicle to recover damages for the negligent or reckless operation of the motor vehicle, the operator, if he is other than the owner of the motor vehicle, shall be presumed to be the agent and servant of the owner of the motor vehicle and operating it in the course of his employment. The defendant shall have the burden of rebutting the presumption." This presumption is inapplicable here in view of the unopposed affidavit by defendant Anthony Nicoletti, Jr., in which he states that he, not Nicoletti Pasta or La Familia, was the owner of and the operator of the vehicle at the time of the accident. Thus, here, the operator was the owner, not an agent of the owner. See Matthiessen v. Vanech, 266 Conn. 822, 837-38, 836 A.2d 394 (2003); Engram v. Kraft, 83 Conn.App. 782, 851 A.2d 363 (2004) (concerning assertion that the defendant/owner never gave consent to his former friend to use his vehicle). The plaintiff has not offered any evidence in order to demonstrate the existence of a disputed factual issue as to the ownership of the vehicle.
Based on the evidence presented, there is no basis on which to hold Nicoletti Pasta liable. The plaintiff has not presented any evidence to prove that Nicoletti Pasta owned the vehicle which was driven by defendant Anthony Nicoletti, Jr. at the time of the accident.
CONCLUSION
For the foregoing reasons, the motion for summary judgment is granted. Summary judgment may enter in favor of defendant Nicoletti Pasta, LLC only. It is so ordered.