Opinion
FSTCV146021753S
02-05-2016
Fuad Habba v. Marsha R. Jesperson et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (187.00)
TAGGART D. ADAMS, JUDGE TRIAL REFEREE.
I. Background
In this civil action the plaintiff sues several defendants for damages incurred in his Greenwich, Connecticut condominium unit, 20 Church Street Unit B-46, caused by water flowing down on four separate occasions between 2011 and 2013, from Unit B-66 two floors above. The defendants are Marsha Jesperson, the owner of Unit B-66, Marie Levesque, Jesperson's mother who resided in B-66 at the relevant times, the condominium association and two property manager entities. Levesque has not appeared in this case. The remaining claim against Jesperson is based on negligence in that she failed in her responsibilities as a landlord pursuant to General Statutes § 47a-7, and failed to maintain Unit B-66 in compliance with the condominium by-laws and rules and General Statutes § § 47-75 and 47-86.
II. Scope of Review
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." Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000). Summary judgment " is appropriate only if a fair and reasonable person could conclude only one way." Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1985). " 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 judgment as a matter of law." Appleton v. Board of Education, supra, 254 Conn. at 209. " A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) United Oil Co. v. Urban Redevelopment Com., 158 Conn. 364, 379, 260 A.2d 596 (1969). The trial court in the context of summary judgment motion, may not decide issues of material fact, but only determine whether such genuine issues exist. Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).
" Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact [question] . . . a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue." Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 554, 707 A.2d 15 (1998). " [T]he party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." Appleton v. Board of Education, supra, 254 Conn. 209. See generally, Sic v. Nunan, 307 Conn. 399, 406, 54 A.3d 553 (2012); Mott v. Wal-Mart Stores East L.P., 139 Conn.App. 618, 624-25, 57 A.3d 391 (2012).
III. Discussion
One major thrust of Jesperson's motion is the contention that she did not possess or control the premises of B-66, nor did she control Levesque's use of the bathtub in that unit. Arguably, this is a defense to common law negligence, but one claim of negligence, as noted above, is Jesperson's alleged violation of the condominium rules that state:
There is some evidence in the record that the water damage to Unit B-46 may have resulted from an overflowing bath.
Water closets and other water apparatus in the Building shall not be used for any purpose other than those for which they were designed. . . . Any damage resulting from misuse of any water closets or other apparatus in a unit shall be repaired and paid for by the owner of such Unit.
Rule 22, Town & Country Condominium. Attached to Affidavit of Fuad Habba, Dkt. Entry 192.00. The court denies the motion for summary judgment as to the issue of negligence on the ground that there is a material fact at issue as to whether the Unit B-66 bath was misused.
Jesperson also moves for summary judgment dismissing the claims based on water damage that occurred from water flows into Unit B-46 from Unit B-66 on June 12, 2011, July 22, 2011 and December 12, 2011. See Revised Complaint, ¶ ¶ 8-10, Dkt. Entry 137.00. Jesperson correctly points out that the initial complaint in this case was served on Jesperson on April 3, 2014 well after the expiration of the two year limitation period suits based on negligence, citing General Statutes § 52-584. The plaintiff responds that there is a genuine of material fact as to whether Jesperson engaged in a continuing course of conduct that tolled the running of the limitations period.
When faced with that question, the Connecticut Supreme Court has said the burden is on the proponent of tolling by reason of a continuing course of conduct to establish a material fact in dispute. Flannery v. Singer Asset Financial Company LLC, 312 Conn. 286, 310-11, 94 A.3d 553 (2014). There is nothing in the record to support a finding of a course of conduct by Jesperson resulting in a continuing breach of duty. The complaint itself specified four separate instances of water damage, each separated from the other by months and in the last occasion, by more than a year. In Witt v. St. Vincent's Medical Center, 252 Conn. 363, 746 A.2d 753 (2000), the Connecticut Supreme Court stated in connection with a summary judgment motion involving a claim of continuous course of conduct, that the analysis depended on whether there was a genuine issue of material fact with respect to whether the defendant " continually breached that duty." Id. 370. There is no evidence that Jesperson " continually" breached a duty owed the plaintiff at any time above and beyond the specific four occasions noted. Therefore, the court finds the claims arising from the 2011 water flows must be, and are, dismissed on statute of limitations grounds.