Opinion
No. CV020087865S
November 10, 2003
MEMORANDUM OF DECISION RE DEFENDANTS' REQUEST FOR LEAVE TO FILE MOTION FOR SUMMARY JUDGMENT
The defendants Diane, Jay and Christian Baker have filed a Request for Leave to File Motion for Summary Judgment (#121). Along with their Motion for Leave, the defendants filed a Motion for Summary Judgment (#121), and a Memorandum in Support of Motion for Summary Judgment. The defendants submitted the affidavits of Diane, Jay and Robert Baker, stating that Jay and Robert were not present at the scene of the incident which is the subject of the Complaint. (#122.) The plaintiff filed an Objection to the Defendants' Motion for Summary Judgment (# 123) and a Memorandum of Law in Support of Plaintiff's Objection to Defendants' Motion for Summary Judgment, with exhibits, consisting of statements of and attributed to Jay and/or Steven Baker admitting that they were present at the scene in contravention of their recent affidavits (#124).
On January 14, 2003, the case was assigned for trial commencing December 9, 2003. Nine months later, on October 14, 2003, less than 60 days before the trial date the defendants seek to file a Motion For Summary Judgment on the basis of facts known to the defendants from the onset of this litigation.
Practice Book § 17-44 provides inter alia that, "In any action . . . any party may move for a summary judgment at any time, except that the party must obtain the judicial authority's permission to file a motion for summary judgment after the case has been assigned for trial . . . The pendency of a motion for summary judgment shall delay trial only at the discretion of the trial judge." Pursuant to Practice Book § 11-19, a judge must render a judgment on a motion within 120 days. The court would necessarily delay the trial if it granted leave to file a motion for summary judgment at this late date. The defendants have given no reason why the motion for leave to file a motion for summary judgment was not filed 120 days prior to the trial date.
"The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "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 him 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." (Citation omitted; internal quotation marks omitted.) Witt v. St. Vincent's Medical Center, 252 Conn. 363, 368, 746 A.2d 47 Conn. Sup. 268, 753 (2000). To grant the motion the court must decide that the defendants are entitled to directed verdict on same facts. Batik v. Seymour, 186 Conn. 632, 647 (1982).
Material fact is one that will make a difference in the result of the case. Hammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 578 (1990). In considering a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party. LaFlamme v. Dallessio, 261 Conn. 247, 250 (2002). Accordingly, the court must view the facts as presented by the plaintiff.
Once the moving party has submitted evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue. Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 11-12, 459 A.2d 115 (1983); Farrell v. Farrell, 182 Conn. 34, 38, 438 A.2d 415 (1980); Rusco Industries, Inc. v. Hartford Housing Authority, 168 Conn. 1, 5, 357 A.2d 484 (1975). It is not enough 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]." Bartha v. Waterbury, 46 Conn. Sup. 521, House Wrecking Co., supra, at 12, 459 A.2d 115. "The movant has the burden of showing the nonexistence of such issues but the evidence thus presented, if otherwise sufficient, is not rebuffed by the bald statement that an issue of fact does exist." Kasowitz v. Mutual Construction Co., 154 Conn. 607, 613, 228 A.2d 149 (1967), quoting Boyce v. Merchants Fire Ins. Co., 204 F. Sup. 311, 314 (D.Conn. 1962); see also, Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984). The party opposing a properly supported motion for summary judgment may not rest on mere allegation or denial but must set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
It does not appear that an unnecessary trial would be avoided by granting leave to file a motion for summary judgment as there is a genuine issue of material fact. On the contrary, granting leave to file a motion for summary judgment would simply delay the trial. The defendants' Motion for Leave to File a Motion for Summary Judgment is therefore denied.