Opinion
No. CV 07 5002551 S
April 26, 2007
MEMORANDUM OF DECISION RE MOTIONS FOR PREJUDGMENT REMEDY
By way of a complaint dated February 6, 2007, the plaintiff alleges that on or about August 9, 2006 she went to Griffin Hospital for a CT scan. The Scan was to be administered by the defendant Victor Muzzillo who was "an employee, agent and/or servant of the defendant Griffin Hospital . . ." The plaintiff further alleges that while preparing and or administering the Scan he caused injury to the plaintiff in the following ways:
a. IN THAT he approached and touched the Plaintiff in an offensive and inappropriate manner during the course of the preparation and/or administering of the CT scan.
b. IN THAT he made suggestive and inappropriate remarks to the Plaintiff concerning her body.
The plaintiff alleges in the Second Count of her complaint that the defendant Muzzillo's actions were wanton and reckless.
On February 23, 1007, the plaintiff filed an Application for Prejudgment Remedy seeking to secure the sum of one hundred thousand dollars by attaching the interests of the defendant Muzzillo.
DISCUSSION:
The plaintiff-applicants are seeking a prejudgment remedy. Section 52-278d of the Connecticut General Statutes concerns hearings on prejudgment remedy applications.
General Statutes § 52-278d(a) permits a trial court to grant a prejudgment remedy if "the plaintiff has shown probable cause that . . . a judgment will be rendered . . . in the plaintiff's favor . . ." We emphasize that a hearing on an application is not a full-scale trial on the merits of the plaintiffs' claims; Fischel v. TKPK Ltd., 34 Conn.App. 22, 24, 640 A.2d 125 (1994); Hoke, Inc. v. Circuits, Inc., 26 Conn.App. 804, 805, 602 A.2d 1075 (1995); but rather concerns only whether and to what extent the plaintiff is entitled to have property of a defendant held in custody of the law pending final adjudication of the merits of the action. Tyler v. Schnabel, 34 Conn.App. 216, 220, 641 A.2d 388 (1994). There is no assurance that when a hearing on the merits is eventually reached, the evidence will be identical to the evidence adduced at the prejudgment remedy hearing. In fact, the evidence at trial will usually be much more expansive and may include exhibits or testimony not yet available at the time of the hearing on the application or the prejudgment remedy.
Bosco v. Arrowhead By The Lake, Inc., 53 Conn.App. 873, 874 (1999).
Subsection 52-278d(4) provides in pertinent part that:
(4) . . . If the court, upon consideration of the facts before it and taking into account any defenses, counterclaims or set-offs, claims of exemption and claims of adequate insurance, finds that the plaintiff has shown probable cause that such a judgment will be rendered in the matter in the plaintiff's favor in the amount of the prejudgment remedy sought and finds that a prejudgment remedy securing the judgment should be granted, the prejudgment remedy applied for shall be granted as requested or as modified by the court. The court shall not grant the prejudgment remedy if the prejudgment remedy or application for such prejudgment remedy was dismissed or withdrawn pursuant to the provisions of section 52-278j.
Case law in our state indicates that the burden of proof to show "probable cause" in a civil action is as follows:
CT Page 7403
"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." One Fawcett Place Ltd. Partnership v. Diamandis Communications, Inc., 24 Conn.App. 524, 525, 589 A.2d 892 (1991). "The plaintiff does not have to establish that he will prevail, only that there is probable cause to sustain the validity of the claim." Id.; Fischel v. TKPK, Ltd., 34 Conn.App. 22, 26, 640 A.2d 125 (1994). Tyler v. Schnabel, 34 Conn.App. 261, 219-20 (1994).
(Cited in Incor Group v. Polied Enviro. Rest. Ser., (CV01-0457219 (Mar. 28, 2002), 2002 Ct.Sup. 3346 (Munro, J.).)
A hearing was held on April 23, 2007. The plaintiffs testified as to the events that she alleges occurred at Griffin Hospital on August 9, 2006. The only evidence that was presented was through the testimony of the plaintiff on direct and cross examination. Although the court has some concerns about the credibility of some of the plaintiff's testimony, it does conclude that she has met her burden of proof to show probable cause to believe that a judgment of fifty thousand dollars ($ 50,000.00) will enter in her favor. The court therefore grants the application for prejudgment remedy in the amount fifty thousand dollars ($ 50,000.00). So ordered.