Opinion
No. X07 CV 04 4025123S
February 20, 2008
MEMORANDUM OF DECISION
I
BIC Corporation, Jordan Realty, LLC, Northeast Electronics, Gas Equipment Engineering Corporation and DJJ Corporation (corporate defendants) move for partial summary judgment against five of the plaintiffs in this case arguing that they are time barred under the applicable statute of limitations. The following facts are undisputed. On or about September of 1987, the defendants, Meadow, Inc. and Danvers, Inc., both doing business as Milford River Associates, constructed a fifty-five unit complex known as Caswell Cove Condominiums on an approximately forty-one acre parcel of land at the end of BIC Drive in Milford. The codefendant, Milford Partners, Inc. (Milford Partners), acquired title to the property as a result of foreclosure on or about March of 1992 and subsequently expanded the project to 211 units. The plaintiffs, Rosalyn Liss and over fifty others, are owners of various units having purchased them between 1989 and 2003. The corporate defendants border the property.
In the plaintiffs' fifth amended complaint, dated June 1, 2007 but filed June 22, 2007, fifty-thee plaintiffs are named. Nevertheless, one plaintiff, Roberta Prymula, withdrew on June 20, 2007. Additionally, Christina D'Arcangelo, a named plaintiff, has never been made a party to this action but is one of the plaintiffs to whom the corporate defendants' partial motion for summary judgment is directed. Thus, this court refers to D'Arcangelo as a plaintiff.
On October 1, 2004, the plaintiffs commenced suit. They filed a six-count, fifth amended complaint on November 22, 2006. The first count sounds in fraud against Milford River Associates, Milford Partners and the individual defendants. In counts two through six, the plaintiffs allege negligence, nuisance, trespass, strict liability and a cause of action pursuant to General Statutes § 22a-16, respectively, against the corporate defendants. The plaintiffs generally allege that groundwater pollution, either known by or caused by the various defendants, and not disclosed to the plaintiffs, caused property damage, financial loss and a diminution of property value.
According to the marshal's return, the plaintiffs caused process to be served on BIC Corporation and Gas Equipment Engineering Corporation on October 1, 2004. The other defendants were served on October 4, 2004.
In addition to the above-named defendants, the plaintiffs have also sued Walter Baum, Michael Buzzeo and Kevin Bartlett.
The plaintiffs include Milford Power among the corporate defendants in counts two through six of the fifth amended complaint. Gas Equipment Engineering Corporation and DJJ Corporation's motion to cite in Milford Power was granted on October 25, 2006, but, as of this writing, this court has no record that it has been served a summons or complaint.
On April 1, 2005, the plaintiffs moved for class certification pursuant to General Statutes § 52-105 and Practice Book § 9-7. The court, Sferrazza, J., denied the motion on May 26, 2005. On January 11, 2006, the Appellate Court dismissed the plaintiffs' appeal "because the denial of the plaintiffs' motion for class certification is not an appealable final judgment, see State v. Curcio, 191 Conn. 27, 31 [ 463 A.2d 566] (1983)."
On July 20, 2007, the corporate defendants filed the instant partial motion for summary judgment arguing that counts two through five as to five plaintiffs, Gertrude Carlson, Robert Cunningham, Phyllis Kluft, Daniel Arenovski and Christina D'Arcangelo, must be dismissed because they are barred by the applicable statute of limitations. The corporate defendants argue that the statute of limitations tolled from the time the action was commenced to the time the motion for class certification was denied. In the plaintiffs' memorandum in opposition to the motion, filed September 20, 2007, the plaintiffs counter that the statute of limitations tolled while the appeal of the denial of the class certification was pending. On October 30, 2007, the court heard oral argument and the parties filed supplemental briefs on November 13, 2007.
On December 11, 2007, the court informed the parties that the case of Palmer v. Friendly Ice Cream Corp., 285 Conn. 462 (2008) was pending in the Supreme Court and would likely impact the issues presented here. The parties returned to court on February 7, 2008 to address the Supreme Court's decision in Palmer and stated that they did not wish to further brief the issues.
II
"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 . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." (Internal quotation marks omitted.) Bellemare v. Wachovia Mortgage Corp., 284 Conn. 193, 198-99, 931 A.2d 916 (2007). "Summary judgment may be granted where the claim is barred by the statute of limitations . . . as long as there are no material facts concerning the statute of limitations in dispute." (Citation omitted.) Haggerty v. Williams, 84 Conn.App. 675, 678-79, 855 A.2d 264 (2004).
"Public policy generally supports the limitation of a cause of action in order to grant some degree of certainty to litigants . . . The purpose of [a] statute of limitation . . . is . . . to (1) prevent the unexpected enforcement of stale and fraudulent claims by allowing persons after the lapse of a reasonable time, to plan their affairs with a reasonable degree of certainty, free from the disruptive burden of protracted and unknown potential liability, and (2) to aid in the search for truth that may be impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents or otherwise." (Citations omitted; internal quotation marks omitted.) Bellemare v. Wachovia Mortgage Corp., supra, 284 Conn. 199.
A.
The corporate defendants argue, and the plaintiffs admit in their supplemental memorandum in opposition to the motion for summary judgment, that General Statutes § 52-577c(b) is the applicable statute of limitations in this case. Section 52-577c(b), in relevant part, provides that "no action to recover damages for . . . property damage caused by exposure to a hazardous chemical substance or mixture or hazardous pollutant released into the environment shall be brought but within two years from the date when the injury or damage complained of is discovered or in the exercise of reasonable care should have been discovered." The parties agree that the existence of the chemical contamination was publicly disclosed by the Department of Environmental Protection on October 8, 2003. Thus, pursuant to § 52-577c(b), the statute of limitations would have run on or about October 8, 2005 but for the tolling of the statutory period while the motion for class certification was pending.
Section 52-577c provides in full: "(a) For the purposes of this section:
(1) `Environment' means any surface water, ground water, drinking water supply, land surface or subsurface strata or ambient air within the state or under the jurisdiction of the state; (2) `exposure' means any contact, ingestion, inhalation or assimilation, including irradiation; (3) `hazardous chemical substance or mixture' means petroleum, a petroleum product or any chemical substance or mixture for which there is a federal standard, including any law, requirement, tolerance, prohibition, action level or similar legal authority adopted by an agency pursuant to federal law, including any such standard or legal authority adopted by a state or local government pursuant to federal law, generally intended to prevent, reduce or mitigate the risk of a disease or class or type of diseases to an individual or individuals resulting from exposure to such chemical substance or mixture; (4) `hazardous pollutant' means any designated, specified or referenced chemical considered to be a `hazardous substance' under Section 101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 USC 9601(14); (5) `release' means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing into the environment.
"(b) Notwithstanding the provisions of sections 52-577 and 52-577a, no action to recover damages for personal injury or property damage caused by exposure to a hazardous chemical substance or mixture or hazardous pollutant released into the environment shall be brought but within two years from the date when the injury or damage complained of is discovered or in the exercise of reasonable care should have been discovered.
"(c) The provisions of subsection (b) of this section shall not apply to an action brought against (1) any municipal waterworks system established and operated under chapter 102 or any special act, (2) any regional water authority established under any general statute or special act, or (3) any water company as defined in section 16-1."
From the day after the contamination was disclosed, October 9, 2003, to the day that the plaintiffs initiated suit, October 1, 2004, eleven months and twenty-two days had passed. It is undisputed that the statute of limitations tolled from October 1, 2004 to the day the trial court denied the motion for class certification, May 26, 2005. See Grimes v. Housing Authority, 242 Conn. 236, 242-44, 698 A.2d 302 (1997) (adopting holding of American Pipe Construction Co. v. Utah, 414 U.S. 538, 553-54, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974), that statute of limitations suspended from time of commencement of action until time when class certification decision is made). The plaintiffs argue, however, that the statute of limitations continued to toll until the day after their appeal was dismissed, January 12, 2006. In sum, the corporate defendants argue that the statute of limitations expired on June 3, 2006, a year and eight days after the trial court's denial of the motion for class certification, while the plaintiffs argue that it expired on January 20, 2007, a year and eight days after the Appellate Court's dismissal of the appeal.
"In order to determine the date the filing period commenced in the present case, in the absence of applicable Superior Court rules, we are guided by [t]he general rule . . . that where a period of time is to be calculated from a particular date or event, the day of such date or event is excluded from the computation." (Internal quotation marks omitted.) Commissioner of Transportation v. Kahn, 262 Conn. 257, 264, 811 A.2d 693 (2003); see also Lamberti v. Stamford, 131 Conn. 396, 398, CT Page 2762 40 A.2d 190 (1944) ("the day of the act from which a future time is to be ascertained is to be excluded from the computation").
The parties argue that process was served on September 30, 2004. Nevertheless, "under the law of our state, an action is commenced not when the writ is returned but when it is served upon the defendant." (Internal quotation marks omitted.) Rocco v. Garrison, 268 Conn. 541, 549, 848 A.2d 352 (2004). As noted in footnote 2, BIC and Gas Equipment Engineering Corporation were served on October 1, 2004 while the other codefendants were served on October 4, 2004. Because the three days do not change the analysis here, the court uses October 1, 2004 as the operative date for the sake of simplicity.
After the denial of class certification, several motions to join additional plaintiffs were filed. As stated above, the instant partial motion for summary judgment concerns only five plaintiffs: Carlson, Cunningham, Kluft, Arenovski and D'Arcangelo. Carlson moved to join this action on November 1, 2006; her motion was neither granted nor denied. Carlson, again, and Cunningham, Kluft and Arenovski moved to join on January 26, 2007. On May 16, 2007, their motion was granted by this court. D'Arcangelo was named as an additional plaintiff as of the third amended complaint dated November 11, 2006 but did not move to join until August 27, 2007.
This motion has not been acted upon. Additionally, Helen Kanganis moved to join the action on May 29, 2007.
As to Cunningham, Kluft, Arenovski and D'Arcangelo, there are no material facts in dispute. The issue of whether the statute of limitations tolled during the appeal is irrelevant because Cunningham, Kiuft and Arenovski's motion to join was not filed until January 26, 2007 — a date that is after January 20, 2007. Additionally, D'Arcangelo's motion to join was untimely as it was filed long after January 20, 2007. Because these plaintiffs are barred by the statute of limitations, summary judgment may be granted as to the second count. See Haggerty v. Williams, supra, 84 Conn.App. 678-79.
Under the same reasoning, Kanganis would be barred as well.
As to Carlson, she filed a motion to join on November 1, 2006 — within the time frame in dispute here. The corporate defendants argue that, because there is no right to appeal the denial of class certification, the statute of limitations does not continue to toll during the appeal. The plaintiffs argue that the statute of limitations should toll during the appeal because the corporate defendants had notice of the potential claims against them. The parties cite to, and research reveals, no Connecticut caselaw addressing the specific issue, but the parties point to federal cases to support their arguments.
"[O]ur class action jurisprudence is sparse, as most class actions are brought in federal court. Our class action requirements, however, are similar to those applied in the federal courts. Compare Practice Book §§ 9-7 and 9-8 with Fed.R.Civ.P. 23(a) and (b). Both sets of rules require that at least four elements be satisfied to certify a class: (1) numerosity — that the class is too numerous to make joinder of all members feasible; (2) commonality — that the members have similar claims of law and fact; (3) typicality — that the named plaintiffs' claims are typical of the claims of the class; and (4) adequacy of representation — that the interests of the class are protected adequately. See Practice Book § 9-7; Fed.R.Civ.P. 23(a). Thus, we look to federal case law for guidance in construing our class certification requirements." Rivera v. Veterans Memorial Medical Center, 262 Conn. 730, 737-38, 818 A.2d 731 (2003).
In American Pipe, the United States Supreme Court held that "the commencement of the original class suit tolls the running of the statute for all purported members of the class who make timely motions to intervene after the court has found the suit inappropriate for class action status." American Pipe Construction Co. v. Utah, supra, 414 U.S. 553. In Crown, Cork Seal Co. v. Parker, 462 U.S. 345, 354, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983), the court clarified that statutes of limitations are tolled both as to purported class members that file separate suits and intervening plaintiffs in the pending action. The court did not articulate whether tolling continues during an appeal of a denial of class certification. In the federal courts, there is some conflicting authority on the issue.
Prior to December of 1998, some federal courts concluded that statutes of limitations are suspended only until the trial court's denial of class certification. See, e.g., Armstrong v. Martin Marietta Corp., 138 F.3d 1374, 1391 (11th Cir.) (en banc), cert. denied, 525 U.S. 1019, 119 S.Ct. 545, 142 L.Ed.2d 453 (1998); Nelson v. County of Allegheny, 60 F.3d 1010, 1013 (3d Cir. 1995), cert. denied sub nom. Beddingfield v. Allegheny County, 516 U.S. 1173, 116 S.Ct. 1266, 134 L.Ed.2d 213 (1996); CT Page 2756 Calderon v. Presidio Valley Farmers Assn., 863 F.2d 384, 390 (5th Cir.) (per curiam), cert. denied, 493 U.S. 821, 110 S.Ct. 79, 107 L.Ed.2d 45 (1989); Andrews v. Orr, 851 F.2d 146, 150 (6th Cir. 1988). The Armstrong court, for example, reasoned that the continuation of tolling during an appeal "would seriously contravene the policies underlying statutes of limitations" because cases would potentially be in limbo for years while the class certification issue was appealed. Armstrong v. Martin Marietta Corp., supra, 138 F.3d 1388. Nevertheless, the court recognized that the enactment of rule 23(f) of the Federal Rules of Civil Procedure would possibly change its holding. Id., 1389-90 n. 35. "Proposed Federal Rule of Civil Procedure 23(f), holds the potential to change this analysis if passed in its current form . . . If the rule passes, and if it significantly increases the frequency of interlocutory appeals of class certification orders — a development which would depend in large part upon how this court chooses to exercise the discretion granted to it by the proposed rule — then we may revisit the decision taken today, and might for instance allow continued tolling of statutes of limitations during the pendency of an appeal under the new rule." Id.
Rule 23(f) provides, "A court of appeals may in its discretion permit an appeal from an order of a district court granting or denying class action certification under this rule if application is made to it within ten days after entry of the order. An appeal does not stay proceedings in the district court unless the district judge or the court of appeals so orders." Fed.R.Civ.P. 23(f).
In December of 1998, rule 23(f) was enacted adding a permissive interlocutory appeal procedure to the federal rules. See Rivera v. Veterans Memorial Medical Center, 262 Conn. 730, 736 n. 8, 818 A.2d 731 (2003). Subsequently, two lower federal courts addressed rule 23(f) and determined that the applicable statute of limitations tolled during an appeal of a denial of class certification. See Monahan v. City of Wilmington, Civil Action No. 00-505 JJF, 2004 U.S. Dist. Lexis 1322 (D.Del. January 30, 2004); National Asbestos Workers Medical Fund v. Philip Morris, Inc., Docket No. 98 CV 1492, 2000 U.S. Dist. Lexis 13910 (E.D.N.Y. September 26, 2000). While recognizing that the rule does not specifically address whether an appeal tolls the statute of limitations, these courts have found that the underlying policies of the rule support tolling during an appeal. See National Asbestos Workers Medical Fund v. Philip Morris, Inc., supra, 2000 U.S. Dist. Lexis 13910, *7; see also Monahan v. City of Wilmington, supra, 2004 U.S. Dist. Lexis 1322, *6-*8 ("[S]ubsection(f) grants a district court the ability to toll the statute of limitations pending an appeal of its denial of class certification, provided the appealing party requests and is granted a stay by the district court . . . [U]nlike prior practice, Rule 23(f) provides a reasonable basis for putative class plaintiffs to continue to rely upon a filed class action to redress their individual claims pending an appeal of a denial of class certification . . . [T]he enactment of Rule 23(f) signals the now `permissive' nature of class certification appeals." [Citations omitted.]).
Additionally, one state appellate court has examined the issue. In Scarvey v. First Federal Savings Loan Assn. of Charlotte, 146 N.C.App. 33, 42, 552 S.E.2d 655 (2001), the court recognized that the courts of North Carolina hold that an interlocutory appeal of the denial of class certification effects a substantial right and is immediately appealable. Because a denial is immediately appealable, the court adopted the reasoning of National Asbestos and held that statute of limitations tolled during appeal of the denial of a motion for certification. Id.
Despite the rule change and these lower court decisions, some federal courts continue to state that tolling ends when class certification is denied. See Culver v. City of Milwaukee, 277 F.3d 908, 914 (7th Cir. 2002) (addressing rule 23(e) of Federal Rules of Civil Procedure and noting that, when "suit is dismissed without prejudice or when class certification is denied, the statute resumes running"); Stone Container Corp. v. United States, 229 F.3d 1345, 1356 (Fed. Cir. 2000) (holding that tolling ends when class certification is denied by trial court in appeal from United States Court of International Trade which does not allow interlocutory appeals under its rules), cert, denied, 532 U.S. 971, 121 S.Ct. 1601, 149 L.Ed.2d 468 (2001); Taylor v. United Parcel Service, Inc., 421 F.Sup.2d 946, 950 (W.D.La. 2006) (noting that tolling ends when class status is denied and does not continue during reconsideration or appeal). At least one state appellate court agrees. See Bordelon v. City of Alexandria, 822 So.2d 223, 227-28 (La.App. 2002).
In Connecticut, "[u]nlike the rules of civil procedure governing federal courts, there is no statutory authority granting appellate courts . . . discretion to review interlocutory denials of class certification. Our appellate jurisdiction is determined by the state constitution and statutes promulgated pursuant thereto; authority from other jurisdictions based on statutes or rules substantively different from ours is not persuasive. We are required to follow the dictates of the legislature with regard to our discretion." Palmer v. Friendly Ice Cream Corp., 285 Conn. 462, 474-75 (2008). Because our class action rules do not expressly provide for immediate appeal of a denial of class certification; see Practice Book §§ 9-7 through 9-10; the court concludes that the statute of limitations was not tolled during the appeal of the denial of class certification.
This conclusion comports with the purposes of statutes of limitations. Specifically, ending tolling as of the trial court's denial of class certification allows litigants "to plan their affairs with a reasonable degree of certainty, free from the disruptive burden of protracted and unknown potential liability." See Bellemare v. Wachovia Mortgage Corp., supra, 284 Conn. 199. Additionally, it facilitates judicial efficiency. Furthermore, putative class members may protect their interests by filing their own lawsuits or seeking to intervene in the ongoing litigation after the trial court denies class certification. See Palmer v. Friendly Ice Cream Corp., supra, 285 Conn. 482. Therefore, the corporate defendants' motion for summary judgment on count two as to Carlson is granted as her motion to join this action was untimely because it was filed after June 3, 2006.
B.
In addition to negligence in count two, the plaintiffs allege nuisance in count three, trespass in count four and strict liability in count five. The corporate defendants maintain that the two-year limitation of § 52-577c(b) applies to these counts rather than the longer three-year period of General Statutes § 52-577. The plaintiffs appear to agree as does this court.
In the plaintiff's supplemental memorandum in opposition to the motion for summary judgment, they state, "Section 52-577c is the proper statute of limitations for many of the counts alleged in the complaint . . ."
The complaint is based upon a diminution of property value as a result of an exposure to certain chemicals including trichloroethylene and other volatile organic compounds. As noted earlier, § 52-577c(b) provides that "[n]otwithstanding the provisions of sections 52-577 and 52-577a, no action to recover damages for personal injury or property damage caused by exposure to a hazardous chemical substance or mixture or hazardous pollutant released into the environment shall be brought but within two years from the date when the injury or damage complained of is discovered or in the exercise of reasonable care should have been discovered." (Emphasis added.) The introductory clause clearly indicates that the provisions of this section trump the general provisions of § 52-577. Greco v. United Technologies Corp., 277 Conn. 337, 349, 890 A.2d 1269 (2006) ("52-577c(b) . . . expressly preempts §§ 52-577 and 52-577a"). As the complaint concerns property damage from a "hazardous chemical substance or mixture or hazardous pollutant" "released into the environment," the provisions of § 52-577c(b) apply to these counts. See Monroe v. Underground Construction Survey, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 01 0384754 (August 17, 2005, Doherty, J.) (39 Conn. L. Rptr. 806, 808) ("in a case involving exposure to hazardous chemical substances, whether based upon negligence or some other theory, e.g., breach of contract, the applicable statute of limitations is that of . . . [§ 52-577c(b)"); 70 Water Street Associates, LLC v. Harris Gans Co., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 00 0180713 (March 7, 2005, Lewis, J.) (38 Conn. L. Rptr. 810, 813) ("trespass premised on exposure to environmental pollutants is also subject to the limitation in § 52-577c"); see also Tolchin v. Shell Oil Co., Superior Court, complex litigation docket at New Britain, Docket No. X03 CV 97 0510328 (July 30, 2004, Peck, J.) (37 Conn. L. Rptr. 575, 577) (applying § 52-577c(b) to claims of willful misconduct, nuisance and negligence). Therefore, the court finds that the two-year statute of limitations of § 52-577c(b) applies to counts three, four and five of the plaintiffs' amended complaint.
"Environment," "exposure," "hazardous chemical substance or mixture or hazardous pollutant," and "release" are defined in § 52-577c(a). See footnote 6. There is no argument that the definitions do not apply to the claims herein.
Nevertheless, the plaintiffs argue that the nuisance and trespass, and, therefore, the strict liability count, are ongoing, thus tolling any statute of limitation. "[W]hether a nuisance is permanent or temporary is . . . relevant for purposes of the statute of limitations . . . In nuisance actions it is important, for statute of limitations purposes, to ascertain whether the invasion or interference is permanent or continuous . . . If the injury or wrong is classified as temporary, the limitation period starts to run only when the plaintiff's [property is] actually harmed, and for purposes of the statute of limitations, each injury causes a new cause of action to accrue, at least until the injury becomes permanent . . . This rule is especially applicable if the situation involves elements of uncertainty, such as the possibility or likelihood of the alteration or abatement of the causative condition . . . The rule is predicated upon the defendant's ability and duty to abate the existing conditions which constitute the nuisance . . . The characterization of a nuisance is not necessarily dependent on whether the conduct that caused the nuisance has ceased. [T]he life of an absolute nuisance exists as long as the nuisance lasts. When one creates such a nuisance is of no moment. As long as it exists, each instant of its continuance makes its creator liable for the injuries it occasions . . . Courts consider not only the permanent or temporary nature of the damages, but also the permanent or temporary nature of the causative factor, so each case must be considered in its own factual setting . . . Whether contamination by toxic waste is a permanent or continuing injury is ordinarily a question of fact turning on the nature and extent of the contamination.
"Similarly although, [a] statute which establishes a limitations period in an action for trespass to real property [generally] commences running at the occurrence of the first actual damages . . . [w]here a trespass is a continuing one, and not of that class of permanent appropriations to be assessed for all time at once, there may be successive actions for each continuance of the trespass . . . A continuing trespass upon real property creates separate causes of action, which are barred only by the running of the statute against the successive trespasses, and not by the running of the statute from the time of the original trespass." (Internal quotation marks omitted.) Benson v. Redding, Superior Court, judicial district of Danbury, Docket No. CV 02 0344668 (February 4, 2003, White, J.), quoting Blackburn v. Miller-Stephenson Chemical Co., Superior Court, judicial district of Danbury, Docket No. CV 93 0314089 (September 11, 1998, Leheny, J.); see also Bridgeport v. Admiral Associates, LLC, Superior Court, judicial district of New Haven, Docket No. CV 98 0035277 (February 7, 2001, Moran, J.) [29 Conn. L. Rptr. 444].
In the present case, the parties have not briefed the issue or presented any affidavits that establish whether the conduct forming the basis of the plaintiffs' trespass, nuisance and strict liability claims was continuing or permanent in nature. Therefore, there are genuine issues of material fact as to when the statute of limitations began to run and summary judgment as to these causes of action on the basis of statute of limitations is improper. As a result, the motion for summary judgment on counts three, four and five is denied as to all five plaintiffs.
III
For the foregoing reasons, the corporate defendants' motion for summary judgment is granted in part and denied in part.
Berger, J.