Opinion
UWYCV156027166S
03-17-2016
Khalid J. Sethi et al. v. John Gavallas
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT (#111)
ROBERT B. SHAPIRO, JUDGE OF THE SUPERIOR COURT.
On March 7, 2016, the defendant's motion for summary judgment in this defamation action appeared on the short calendar as a matter to be adjudicated on the papers submitted by the parties. The defendant contends that summary judgment is warranted because the plaintiffs' complaint is barred by the statute of limitations. In response, the plaintiffs argue (1) that there is a genuine dispute over when the defendant made the allegedly defamatory statements, and (2) that the limitations period was extended by the defendant's affirmative acts of fraudulent concealment of his wrongdoing.
After consideration, for the reasons stated below, the motion is granted.
I
Background
In their revised complaint (#106), both counts, the plaintiffs, a married couple, allege that, in May 2013, the defendant, the Chief of Police of Watertown, Connecticut, falsely and maliciously stated in telephone conversations with officials in the Hartford Field Office of the United States Citizenship and Immigration Services (USCIS) of the United States Department of Homeland Security that they had forged the defendant's signature on immigration documents for the plaintiff Khalid J. Sethi. See revised complaint, paragraph 3.
They further allege that on May 21, 2012, the defendant falsely and maliciously stated in a letter to the director of USCIS that they had forged his signature on immigration documents for Sethi. See revised complaint, paragraph 3.
They also allege that, as a result, Sethi has been impeded in his efforts to become a United States Citizen and has been threatened with deportation, causing them severe emotional distress. See revised complaint, paragraph 4. The plaintiffs allege that the defendant is liable for defamation per se and seek compensatory and punitive damages.
II
Standard of Review
" 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." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013).
" A 'genuine issue has been variously described as a 'triable, ' 'substantial' or 'real' issue of fact . . . and has been defined as one which can be maintained by substantial evidence . . . Hence, the 'genuine issue' aspect of summary judgment procedure 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." (Citations omitted.) United Oil Co. v. Urban Redevelopment Commission of City of Stamford, 158 Conn. 364, 378-79, 260 A.2d 596 (1969).
III
Discussion
A
Statute of Limitations
As discussed below, as to the facts pertaining to the expiration of the statute of limitations, both sides cite a June 4, 2014 decision by USCIS concerning Sethi. See defendant's Exh. A. General Statutes § 52-597 provides that " No action for libel or slander shall be brought but within two years from the date of the act complained of."
As acknowledged in the plaintiffs' brief in opposition (#112), page 1, this matter was commenced by service on the defendant on May 6, 2015. See marshal's return (#100.30). " In Connecticut, an action is commenced when the writ, summons and complaint have been served upon the defendant." Rocco v. Garrison, 268 Conn. 541, 553, 848 A.2d 352 (2004).
In his affidavit (defendant's Exhibit B), the defendant avers that he drove the plaintiffs to Sethi's interview with USCIS in Hartford, Connecticut on May 15, 2012. He states that he declined to sign an affidavit of support and on May 16, 2012 called the USCIS Hartford office to ensure that his signature had not been forged and informed USCIS that he did not sign the affidavit of support. In addition, he avers that, on May 18, 2012, he received a faxed copy of a signature page that showed his forged signature, and he confirmed by phone that he did not sign the document. Further, he avers that he sent a letter to USCIS, dated May 21, 2012, which again stated that he did not sign the affidavit of support and that the signature on it was not his. See defendant's Exhibit B, ¶ 13; defendant's Exhibit C.
Finally, the defendant avers that all of the events which are the subject of this suit took place in May 2012, and that he had no further contact with the USCIS concerning plaintiff Sethi subsequent to May 2012. See Exhibit B, ¶ ¶ 14-15.
In response, the plaintiffs submitted the affidavit of plaintiff Lori Ann Synott. See #112. Although, in paragraph 3, Synott avers that the defendant furnished confidential documents in order to sponsor Sethi's application for United States citizenship, and she states that redacted copies thereof are attached to her affidavit, none were provided.
In particular, in paragraph 5 of her affidavit, Synott avers that the defendant's statement in paragraph 15 of his affidavit, that subsequent to May 2012 he had no contact with USCIS concerning Sethi, is false. As support for this assertion, she cites the USCIS decision, dated June 4, 2014 (decision), which was provided by the defendant in support of the motion. See defendant's Exhibit A. Synott asserts that the decision " expressly holds that the defendant spoke to a USCIS representative on May 18, 2013 . . ." (Emphasis in original.) See Synott affidavit, ¶ 5. If that conversation occurred on that date, and not one year earlier, on May 18, 2012, the commencement of the action on May 6, 2015 would be timely, occurring less than two years since the date of that communication.
As discussed below, review of the decision clearly shows that all referenced communications occurred in May 2012, not in May 2013, and that the single reference to 2013 is a typographical error. On page one of the decision, it is noted that on May 15, 2012, Sethi appeared at USCIS for an interview. At page 2, the decision refers to a telephone call from the defendant to USCIS which occurred the next day, May 16, 2012, in which he stated that he suspected that either Sethi or Synott had forged his signature.
The decision then states that " USCIS officers contacted Chief Gavallas on May 18, 2012 to inquire whether he completed the I-864, and faxed him a copy of the last page. He confirmed telephonically on May 18, 2013, and in writing in a letter dated May 21, 2012, that the signature on the form was not his, and did not prepare the I-864 you submitted." See decision, p. 2. Read in context, it is clear that the reference to 2013 is a typographical error.
That the referenced May 18 telephone conversation occurred in 2012, not in 2013, is also evidenced by the May 21, 2012 letter referred to in the above-quoted sentence from the decision. See defendant's Exhibit C. In his letter, the defendant expressly referred to " our conversation of May 18, 2012 concerning the application of Khalid Javed Sethi . . ." In the letter, the defendant referred to his receipt and review of the last page of the application form and stated that " [t]he signature on this form is NOT mine.
Thus, the record is clear that the defendant's communications with USCIS concerning Sethi occurred on May 16, 18, and 21, 2012, not in 2013. The single reference to the year 2013 is a typographical error.
Various courts have found that a typographical error is an insufficient evidentiary basis for a genuine issue of material fact. See WM Specialty Mortgage, LLC v. Brandt, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 09 5001157, (February 10, 2009, Moran, J.) (" A typographical error in a memorandum in support, unsupported by any other evidence, does not create a genuine issue of material fact"); Bacchus v. New York City Department of Education, United States District Court, Case No. 12 CV 1663 (PKC), 2015 WL 5774550 *28 (E.D.N.Y. September 15, 2015) (mis-addressed letter plainly suggested a typographical error; insufficient to create a genuine issue of material fact); M. Prusman, Ltd. v. The M/V Nathanel, 684 F.Supp. 372, 374 (S.D.N.Y. 1988) (typographical error in surveyor's report did not raise genuine issue of material fact).
" In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact . . . but rather to determine whether any such issues exist . . . Once the moving party has met its burden [of production] . . . the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . [I]t [is] incumbent [on] the party opposing summary judgment to establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact exists . . . The presence . . . of an alleged adverse claim is not sufficient to defeat a motion for summary judgment." (Citations omitted; internal quotation marks omitted.) The Episcopal Church in the Diocese of Connecticut v. Gauss, 302 Conn. 408, 421-22, 28 A.3d 302 (2011).
The plaintiffs have not presented evidence showing that any of the alleged defamatory statements were made in May 2013. Rather, the evidence is clear that the alleged defamatory statements occurred one year earlier, in May 2012.
Concerning the expiration of the statute of limitations, there is no genuine issue of fact. The evidence presented by the defendant shows that the plaintiffs' claims are time-barred since the action was commenced more than two years after the acts complained of. See General Statutes § 52-597. The plaintiffs have not established a factual predicate demonstrating that a genuine issue of material fact exists.
B
Fraudulent Concealment
Alternatively, the plaintiffs argue that the defendant's affirmative acts of fraudulent concealment of his wrongdoing would serve to extend the statute of limitations. The only support for this argument is set forth in paragraph 6 of Synott's affidavit, in which she avers that " [d]uring the period between May 2012 and June 2014, the defendant continued to be friendly toward my husband and me and never gave us any indication or any hint that he made the statements to USCIS which he did make. Our first knowledge that he had made these false statements came when we received the USCIS Decision dated June 4, 2014."
General Statutes § 52-595 provides, " If any person, liable to an action by another, fraudulently conceals from him the existence of the cause of such action, such cause of action shall be deemed to accrue against such person so liable therefor at the time when the person entitled to sue thereon first discovers its existence."
" [T]o toll a statute of limitations by way of our fraudulent concealment statute, a plaintiff must present evidence that a defendant: (1) had actual awareness, rather than imputed knowledge, of the facts necessary to establish the [plaintiff's] cause of action; (2) intentionally concealed these facts from the [plaintiff]; and (3) concealed the facts for the purpose of obtaining delay on the [plaintiff's] part in filing a complaint on their cause of action." (Internal quotation marks omitted.) Iacurci v. Sax, 313 Conn. 786, 799-800, 99 A.3d 1145 (2014). In opposing summary judgment on this basis, " the plaintiff[s bear] the burden of presenting a factual predicate, raising a genuine issue of material fact, that the defendant . . . fraudulently concealed [their] causes of action for the purpose of delaying the filing of the plaintiff[s'] lawsuit." Iacurci v. Sax, 139 Conn.App. 386, 400, 57 A.3d 736 (2012), aff'd, supra, 313 Conn. 786.
" To meet this burden, it [is] not sufficient for the plaintiffs to prove merely that it was more likely than not that the defendant . . . had concealed the cause of action. Instead, the plaintiffs ha[ve] to prove fraudulent concealment by the more exacting standard of clear, precise, and unequivocal evidence." (Internal quotation marks omitted.) Bartone v. Robert L. Day Co., 232 Conn. 527, 533, 656 A.2d 221, 224 (1995). " The defendant['s] actions must have been directed to the very point of obtaining the delay [in filing the action] of which [he] afterward [seek[s]] to take advantage by pleading the statute." Bound Brook Associates v. City of Norwalk, 198 Conn. 660, 666, 504 A.2d 1047, cert. denied, 479 U.S. 819, 107 S.Ct. 81, 93 L.Ed.2d 36 (1986).
Synott's statement in paragraph 6 of her affidavit concerning the defendant's continued friendliness towards her husband and her does not provide evidence that the defendant was aware of the elements of a defamation action. It does not show that he (1) had actual awareness, rather than imputed knowledge, of the facts necessary to establish the plaintiffs' cause of action; (2) intentionally concealed these facts from them; or (3) concealed the facts for the purpose of obtaining delay on their part in filing a complaint on their cause of action. See Iacurci v. Sax, supra, 313 Conn. 799-800.
The plaintiffs have not presented a factual predicate, raising a genuine issue of material fact, showing that the defendant fraudulently concealed their causes of action for the purpose of delaying the filing of their lawsuit.
CONCLUSION
The defendant has met his burden to show the absence of any genuine issue as to the material facts and that he is entitled to judgment as a matter of law. Accordingly, the motion for summary judgment is granted. It is so ordered.