April 7, 2010
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT (#130)
The defendant, Holly Farm Condominium Owners Association, Inc., has moved for summary judgment on counts seven, alleging negligence, and eight, alleging a violation of General Statutes § 47-275, of the plaintiff's amended complaint. The defendant argues that there are no material facts in dispute on either count and that summary judgment should be granted. For the following reasons, the motion is denied.
The plaintiff's complaint alleges claims of both negligence and violation of express and implied warranties, in connection with the purchase of her condominium. She alleges that the basement of her condominium has had water problems since her purchase and that she has suffered damage as a result. She further alleges that an inspection done by an engineer hired by the condominium owners association concluded that a foundation drain should be installed in order to alleviate the problem. She alleges that neither the seller, Strong Street, nor the owners association, Holly Farm, have remedied the problem.
"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." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91 (2007). "The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19 (2006).
Holly Farm argues that there is no dispute of fact that the water problem claimed by the plaintiff exists in her basement; as such, this is not a common area to which the association would owe a duty of care. The plaintiff disagrees, and argues that the facts are in dispute as to the location of the problem. The plaintiff points out her testimony from the deposition, wherein she testified that the association hired an engineer to investigate the flooding and drainage problems of four of the units and the engineer concluded that a foundation drain needs to be installed. The defendant argues that a foundation drain is not a common area, but does not offer any evidence in support thereof. The question of whether a foundation drain would be located in a common area is a question of fact that needs to be determined. The defendant's argument on this point is unavailing.
Next, the defendant argues that the common interest ownership act; General Statutes § 47-275; is inapplicable to the present action, as the owners association did not formally exist until after the plaintiff's purchase of the condominium. The defendant's documents fail to establish that there is no genuine issue of material fact on this point. Viewing the evidence in a light most favorable to the plaintiff, she has alleged that once she brought her flooding and drainage problems to the attention of the association, they failed to follow up on the information. "An individual unit owner who is a member of the association may . . . maintain a negligence action against the association for negligent maintenance of its common areas." Sevigny v. Dibble Hollow Condominium Association, Inc., 76 Conn.App. 306, 322 (2003). Here, the plaintiff is suing for the failure of the association to remedy the problem brought to their attention by both her and the engineer that they hired, as well as their failure to institute legal action on her behalf.
For all the foregoing reasons, the motion for summary judgment is denied.