Materazzo
v.
Middletown

Connecticut Superior Court Judicial District of Middlesex at MiddletownOct 26, 2009
2009 Ct. Sup. 17235 (Conn. Super. Ct. 2009)

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No. CV 095006828

October 26, 2009


MEMORANDUM OF DECISION RE LATE OBJECTION TO NOTICE OF APPEAL


CLARANCE J. JONES, Judge.

The present action arises from plaintiff Anita Materazzo's fall on a sidewalk on August 1, 2008 on Main Street in Middletown, Connecticut. On May 4, 2009, the plaintiff filed a complaint against the city of Middletown, Neil Dinemman and LEKA, LLC, respectively. On May 20, 2009, the defendant for this present motion, LEKA, LLC, filed a motion for summary judgment. The motion was granted by the court, Taylor, J., on June 23, 2009. The court's order stated: "Maintaining a fenced-in area on the municipal sidewalk is not an affirmative act sufficient to be within the holding of Gambardella v. Kaoud, 38 Conn.App. 355, [ 660 A.2d 877] (1995), in which the defendant was alleged to have negligently concealed a defect in the sidewalk. Therefore, the general rule of Dreher v. Joseph, 60 Conn.App. 257, [ 759 A.2d 114] (2000), is applicable. Further, as the plaintiff has failed to raise a material fact sufficient to meet her burden, the motion for summary judgment is granted. See Larobina v. McDonald, 274 Conn. 394, [ 876 A.2d 522] (2005)."

On July 2, 2009, the plaintiff filed a notice of intent to appeal. The defendant filed its objection on July 31, 2009. The defendant filed a reply brief on August 12, 2009. Practice Book § 61-3, pertinent part, "A judgment disposing of only a part of a complaint . . . is a final judgment if that judgment disposes of all causes of action in that complaint . . . brought . . . against a particular party . . . Such a judgment shall be a final judgment regardless of whether judgment was rendered . . . by summary judgment pursuant to Section 17-44 . . . The appeal from such judgment may be deferred (unless an objection is filed pursuant to Section 61-5) until the final judgment that disposes of the case for all purposes and as to all parties is rendered. If the appeal from such a judgment is to be deferred, a notice of intent to appeal must be filed in accordance with the provisions of Section 61-5 . . ."

Practice Book § 61-5(a), in relevant part, states: "In the event that the party aggrieved by a judgment . . . elects to defer the taking of the appeal until the disposition of the entire case, the aggrieved party must . . . within twenty days after of notice of the judgment . . . file in the trial court a notice of intent to appeal the judgment, accompanied by a certification that a copy thereof has been served on each counsel of record in accordance with the provisions of Section 62-7. When a notice of intent to appeal has been filed . . . an objection to the deferral of the appeal may be made by . . . any party who, by virtue of a judgment on a portion of any complaint . . . is no longer a party to that complaint . . . Objection shall be filed in the trial court, within twenty days of the filing of the notice of intent to appeal, accompanied by a certification that a copy thereof has been served on each counsel of record in accordance with the provisions of Section 62-7. When such a party has filed a notice of objection to the deferral of the appeal, the appeal shall not be deferred, and the appellant shall file the appeal within twenty days of the filing of such notice of objection."

In the present case, the court granted the defendant's motion for summary judgment on June 23, 2009. This action dismissed count three of the complaint and as a result, removed the defendant as a party to this action. The plaintiff complied with § 61-5(a), by filing a notice of intent to appeal within twenty days of the date of judgment, on July 2, 2009. The defendant filed its objection more than twenty days after the plaintiff flied her notice of intent to appeal, on July 31, 2009. The defendant argues that it "never received a copy of such notice and indeed was unaware of the filing of any such notice until the undersigned saw it on-line." The defendant claims that it never received actual notice of the filing of the plaintiff's notice of intent to appeal and thus, could not timely object.

The plaintiff's notice of intent to appeal includes a certification page which states that a copy of the notice was mailed on July 1, 2009, to the defendant's counsel. Section 62-7, in pertinent part, states: "It is the responsibility of counsel of record to submit papers for filing in a timely manner and in the proper form . . . All papers . . . shall contain a certification that a copy has been served on each other counsel of record, including the names, addresses and telephone and facsimile numbers of all counsel . . . All service and filing by mail shall be by first class or express United States mail, postage prepaid, or by hand delivery."

A review of plaintiff's certification discloses that the telephone and facsimile numbers of opposing counsel were not included. Irrespective of this technical default on plaintiff's part, the court finds it appropriate to allow defendant LEKA, LLC to establish that it did not receive notice of plaintiff's Intent to Appeal, and hereby invites it to request a hearing in order to do so.