Opinion
No. 5100049
November 16, 2005
MEMORANDUM OF DECISION
Background
The plaintiff, Tamara Jones, seeks an attachment of real property and an order restraining the disposition of assets in connection with a personal injury lawsuit against the defendants, Shakeel Khan and Shahida Tanwir. A contested hearing took place on August 9, 10 and 11, 2005. The parties have submitted briefs of law including argument.
The plaintiff claimed that she sustained injuries to her leg resulting in surgery for a torn ACL and meniscus subsequent medical care and treatment which continues to this day. She claimed her injuries were sustained by the carelessness and negligence of the defendants in failure to maintain their property as alleged in the complaint. The defendants deny any legal culpability for the alleged injuries.
Applicable Law
The court heard the matter pursuant to C.G.S. § 52-278d. The hearings were held to determine whether there is probable cause that a judgment will be rendered for the plaintiff in an amount equal to or greater than the amount she seeks as a prejudgment remedy, and whether defendant has adequate insurance to pay any judgment that may be rendered.
"Probable cause for purposes of the PJR statutes is a flexible common sense standard that does not demand that a belief be correct or more likely true than false . . . In acting on a prejudgment remedy motion, the trial court must evaluate the arguments and evidence produced by both parties to determine whether there is probable cause to sustain the validity of the Plaintiff's claim . . . Civil probable cause constitutes a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a person of ordinary caution, prudence and judgment, under the circumstances, in advancing the action." Weicker v. Granatowski, 2003 WL 22133810 (Sep. 2, 2003, Levin, J.) ( 35 Conn. L. Rptr. 333). Dufraine v. CHRO, 235 Conn. 250, 261 (1996).
"[P]rejudgment remedy proceedings are not involved with the adjudication of the merits of the action brought by the plaintiff or with the progress or result of that adjudication. They are only concerned with whether and to what extent the plaintiff is entitled to have property of the defendant held in the custody of the law pending adjudication of the merits of that action." (Internal quotation marks omitted.) Cahaly v. Benistar Property Exchange Trust Co., 73 Conn.App. 267, 273 812 A.2d 1 (2002), rev'd on other grounds, 268 Conn. 264, 842 A.2d 1113 (2004). "The purpose of the prejudgment remedy of attachment is security for the satisfaction of the plaintiff's judgment, should he obtain one . . . It is primarily designed to forestall any dissipation of assets by the defendant and to bring [those assets] into the custody of the law to be held as security for the satisfaction of such judgment as the plaintiff may recover . . . The adjudication made by the court on [an] application for a prejudgment remedy is not part of the proceedings ultimately to decide the validity and merits of the plaintiff's cause of action. It is independent of and collateral thereto . . ." (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 274-75. Morris v. Cee Dee, LLC, 90 Conn.App. 403, 412 (2003).
Analysis
The plaintiff, a tenant of the defendant, testified that she injured her knee on a defective stair in a staircase used in common with other tenants and invitees. She further testified that she sustained bodily injuries including an injury to her ACL and cartilage resulting in surgery at the William Backus Hospital performed by Dr. Balkum on July 15, 2005. As of the date of the hearing, the plaintiff was continuing medical treatment for various other conditions that she claimed resulted from the fall. The plaintiff was on social security disability at the time of the fall and, therefore, proved no wage loss.
The building inspector of the City of Norwich testified that he inspected the staircase in question seven days after the fall. He described a defective condition in the area of the plaintiff's fall requiring repair to comply with the building code. The photographs submitted into the record show old treads some with cracks recently covered with white paint.
The defendants were owners of and retained control of the premises known as 57-59 Merchants Avenue, Taftville, Connecticut. The defendants confirmed through their testimony that they had no insurance on the subject property to cover the damages and injuries sustained by the plaintiff assuming she were to prevail at trial. The defendant denied any defective conditions of the staircase in question. The court heard testimony from the defendant's realtor and neighbor across the street concerning the alleged condition of the subject property. The neighbor testified that he found the plaintiff on the landing where she advised him she tripped and fell, but did not indicate any crack in the stair in question.
The court, after reviewing the testimony and exhibits and applicable law, is persuaded that the plaintiff has met her burden of proof in demonstrating probable cause necessary for granting of a prejudgment remedy attachment in the amount of $125,000. Moreover, the record indicates that the plaintiff has been subjected to invasive leg surgery and medical care and attention continuing past the hearing. The evidence is also clear that the defendants failed to provide any liability insurance for the real property in question insuring for any defects causing injuries to the tenants, invitees and/or licensees of the subject property. The extent of the defendant's future medical treatment and disabilities therefrom are the subject of future medical care diagnosis and disability ratings. The credibility of witnesses is left to the determination of the trier of fact. State v. Ellis T., 92 Conn.App. 247, 251 (2005).
Evidence was also submitted in the record indicating that the subject property was encumbered by a mortgage. No credible testimony was submitted to the court as to the fair market value of the subject property as of the date of the hearing. The defendants further testified that they had money in a banking institution representing the net proceeds from a recent sale of real property. Due to the fact that the court did not have sufficient evidence to determine the market value of the subject property minus the mortgage, the court further ordered that the defendants be restrained from spending or disposing of the proceeds in the sale of the real property pending a hearing on the motion to disclose assets.
ORDER
The court hereby orders a prejudgment remedy in the amount of $125,000 together with the restraining order reflected in its hand written order dated August 24, 2005.