Opinion
No. CV 03-0830197
May 22, 2006
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#125)
The defendant has filed a motion for summary judgment as to count three of the amended complaint dated November 3, 2004. In count three the plaintiff alleges that the defendant "defamed and disparaged" him when it improperly listed his business in its published telephone directory.
Summary judgment is appropriate when 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. Practice Book § 17-49. "[T]he opposing party must substantiate its adverse claim with evidence disclosing the existence of such an issue." Haesche v. Kissner, 229 Conn. 213 (1994).
According to the allegations of the amended complaint, in January 2001, the defendant solicited the plaintiff to list his business, a judo program, in the defendant's Yellow Pages directory. Although there was an agreement, the defendant did not list the plaintiff's business in its 2001 directory. In February of 2002, the defendant again solicited the plaintiff to place a listing in its Yellow Pages, but the plaintiff allegedly declined. Nonetheless, the defendant's 2002 directory, included a listing for the plaintiff's business within the heading "Escort Service" and which was incorrectly worded. The plaintiff claims that because of the improper wording and the placement, the listing carried sexual overtones inappropriate to his business which is not an escort service. Plaintiff further alleges because of the improper listing of plaintiff's business as an adult entertainment, he was subjected to an investigation by the State of Connecticut Police and that his character was disparaged and defamed.
As a preliminary matter, it is noted that the defendant submitted two documents in support of its motion for summary judgment. In its memorandum the defendant identifies the first document as a copy of the page of the 2002 telephone directory that contains the advertisement for the plaintiff's company, and the second as excerpt from the transcript of the plaintiff's deposition. The defendant did not, however, properly authenticate either document. See New Haven v. Pantani, 89 Conn.App. 675, 679 (2005). "[B]efore a document may be considered by the court in support of a motion for summary judgment, `there must be a preliminary showing of [the document's] genuineness, i.e. that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings . . .' Conn. Code Evid. § 9-1(a), commentary. Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be." New Haven v. Pantani, supra, 89 Conn.App. 679.
Regarding the purported copy of the page of the 2002 telephone directory, the court will not consider it because it is not authenticated.
The defendant has also offered uncertified portions of the deposition testimony of the plaintiff. This court has previously considered uncertified deposition testimony in deciding motions for summary judgment when, as in the present case, the opposing party also relies on the testimony. See e.g., DeSanto v. Stoltz Sea Farm, Inc., Superior Court judicial district of New Haven at Meriden, Docket No. CV 03 0285392 (March 15, 2005, Tanzer, J.); and Harlow v. Cee-It-Live, LLC, Superior Court judicial district of New Haven at Meriden, Docket No. CV 00 0270762 (March 15, 2005, Tanzer, J.). Those decisions were, however, issued before the Appellate Court decision in New Haven v. Pantani, supra, 89 Conn.App. 675, which, by implication, precludes a trial court from considering unauthenticated deposition testimony even when the opposing party does not object. To revisit the issue, in this case, however, where both parties attended the deposition, both parties refer to and rely on the deposition testimony, would likely result in a refiling of this motion which would not seem to be an economic use of judicial time. Accordingly, the court will consider the proffered deposition testimony.
To establish a prima facie case of defamation, the plaintiff must demonstrate that: (1) the defendant published a defamatory statement; (2) the defamatory statement identified the Plaintiff to a third person; (3) the defamatory statement was published to a third person; and (4) the Plaintiff's reputation suffered injury as a result of the statement. Cweklinsky v. Mobil Chemical Company, 267 Conn. 210, 217 (2004). "A defamatory statement is defined as a communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him . . ." (Internal quotation marks omitted.) Craig v. Stafford Construction, Inc., 271 Conn. 78, 84 (2004).
Contrary to the plaintiff's allegations, his business listing was not included within the heading "Escort Services" but was listed within the heading "Entertainment." That is undisputed. It is on that basis that the defendant contends that because the allegedly offending listing was not included within the heading "Escort Services" there was no defamation as a matter of law. That argument, however, does not address the plaintiff's allegations that the listing was incorrectly worded as well as improperly placed: "Because of the improper wording and the placement, the plaintiff's listing carried sexual overtones inappropriate to and destructive to the plaintiff's business." In his deposition the plaintiff testified that he received phone calls inquiring about "what type of massage or things do I do . . . culminating in the State Police Task Force trying to entrap me for sexual favors" in connection with an investigation for prostitution.
When the evidence is considered in a light most favorable to the plaintiff, the court cannot say, as a matter of law, that the listing was not defamatory. See QSP, Inc. v. Aetna Casualty Surety Co., 256 Conn. 343, 356 (2001) citing 3 Restatement (Second) Torts, Section 559 ("A communication is defamatory if it tends to so harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him").
Additionally, the defendant claims that the plaintiff's reputation did not suffer injury as a result of the publication. Having reviewed the deposition testimony of the plaintiff, the court cannot say that there are no disputed issues of material fact as to whether the plaintiff suffered harm as a result of the alleged defamatory listing.
Accordingly, the motion for summary judgment is denied.