Opinion
No. CV 05-4010293 S
September 14, 2007
MEMORANDUM OF DECISION
Before the court is the defendants' motion for summary judgment dated April 5, 2007.
This action arises out of the alleged misconduct of a property manager and others in response to a tenant's complaints that she had been subjected to uninhabitable living conditions while residing in her apartment. On October 27, 2006, the plaintiff, Della Gordon, filed a second revised eighteen-count complaint against the defendants.
In the second revised complaint, dated October 25, 2006, the plaintiff, Della Gordon, sets forth claims of negligence, public nuisance, wrongful eviction, fraudulent interference, interference with section eight housing assistance, defamation, negligent infliction of emotional distress, violation of civil rights, vicarious liability, negligent training and intentional infliction of emotional distress. All of her claims arise from allegations that the apartment she rented was regularly flooded with sewage. The plaintiff further alleges that after she was forced to vacate the apartment, the defendant retaliated against her for previous complaints about the conditions in her apartment by interfering with her right to obtain section eight housing assistance and by falsely accusing her of being an unfit mother.
On April 26, 2007, the defendants, the housing authority of the city of New Haven and Alex Johnston, filed a motion for summary judgment on counts one, three, six, seven, nine, eleven, thirteen, fourteen, sixteen and seventeen of the complaint, with a memorandum of law, an affidavit and documentary evidence. They contend that there is no genuine issue regarding the fact that the plaintiff has failed to comply with the notice requirements of General Statutes § 8-67, and that they are therefore entitled to judgment as a matter of law. The plaintiff has filed a memorandum of law in opposition.
The motion before the court has been brought by the housing authority of the city of New Haven and Alex Johnston only. Two additional defendants, Livable Cities Initiative and the city of New Haven, are not parties to the motion. Thus, the term "defendants" in this memorandum will refer only to the housing authority and Johnston.
"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." (Internal quotation marks omitted.) Johnson v. Atkinson, 283 Conn. 243, 253, 926 A.2d 656 (2007). "The facts at issue are those alleged in the pleadings." (Internal quotation marks omitted.) Rockwell v. Quintner, 96 Conn.App. 221, 227, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006). "It is the policy of Connecticut's courts . . . to construe pleadings broadly and realistically, rather than narrowly and technically." (Citation omitted; internal quotation marks omitted.) Id., 232. "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. 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. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . 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." (Citations omitted; internal quotation marks omitted.) Allstate Ins. Co. v. Barron, 269 Conn. 394, 405-06, 848 A.2d 1165 (2004).
The defendants move for summary judgment on the ground that there is no genuine issue of material fact regarding the plaintiff's failure to comply with the requirements of General Statutes § 8-67 and that they are entitled to judgment as a matter of law. Specifically, the defendants argue that the plaintiff failed to provide written notice of her intention to commence an action against them. They also contend that, even if notice was provided, the plaintiff's action is time barred under § 8-67 for failure to commence the action within two years after it arose. The plaintiff counters that compliance with § 8-67 is a condition subsequent to the plaintiff's cause of action, and is not an essential element to the action, but instead is a special defense that the defendants have the burden of pleading and proving. She also contends that the defendants had actual notice of her claim.
The defendants' motion for summary judgment is premised on an assumption that § 8-67 applies to the facts alleged in the plaintiff's complaint. General Statutes § 8-67 provides: "Injury or housing authority property. Any person injured in person or property within boundaries of property owned or controlled by an authority, for which injury such authority is or may be liable, may bring an action within two years after the cause of action therefor arose to recover damages from such authority, provided written notice of the intention to commence such action and of the time when and the place where the damages were incurred or sustained has been filed with the chairman or the secretary of the authority within six months after the cause of action therefor arose." (Emphasis added.)
Thus, § 8-67, by its own terms, applies only to claims of injury "in person or property within boundaries of property owned or controlled by" a housing authority. See Fowler v. Goodfellows LLC, judicial district of Waterbury, Docket No. CV 05 5000233 (April 26, 2007, Gilligan, J.) (43 Conn. L. Rptr. 281, 282). All of the counts on which the defendants seek summary judgment however, allege not only injuries resulting from the presence of sewage in the plaintiff's apartment but also injuries resulting from retaliatory acts directed against the plaintiff after she had vacated he apartment. Consequently, it is not clear that all of the injuries alleged in the complaint are subject to the requirements of § 8-67. Furthermore, the defendants have not submitted evidence demonstrating that the alleged retaliatory acts caused the plaintiff to be injured within the boundaries of property owned or controlled by the housing authority.
In Rockwell v. Quintner, supra, 96 Conn.App. 221, the Appellate Court reversed the trial court's judgment granting the defendant's motion for summary judgment on statute of limitation grounds. The complaint alleged that the plaintiff's injuries were the result of dental treatment that occurred "[f]rom on or about March 23, 2000 through March 7, 2002 . . ." (Internal quotation marks omitted.) Id., 223. In his affidavit in support of his motion for summary judgment, the defendant indicated that he completed the initial reconstructive work on the plaintiff's teeth in May 2000, but admitted that he performed additional work on February 5, 2002. Id., 232. The Appellate Court stated: "There is nothing in the defendant's affidavit purporting to establish that all of the treatment allegedly causing the plaintiff's injuries occurred during the initial round of reconstructive work in 2000. In other words, the affidavit does not foreclose the possibility that some of the plaintiff's alleged injuries stemmed from her February 5, 2002 treatment when, according to the affidavit, she received replacement veneers. If in fact that is the case, the plaintiff's action, which was instituted on February 26, 2003, is not time barred . . . [T]he defendant's affidavit did not eliminate all factual issues raised by the allegations of the complaint . . . [W]e conclude that the court improperly relied on the defendant's affidavit as a sufficient basis for rendering summary judgment in his favor." (Citations omitted; emphasis in original.) Id., 233.
The court's decision in Rockwell and the cases discussed therein make it clear that defendant's evidence in support of summary judgment must eliminate all factual issues raised by the plaintiff's claim. Because the evidence submitted by the defendants in the present case fails to demonstrate that the alleged retaliatory conduct of the defendants caused injury to the plaintiff's person or property within the boundaries of property owned or controlled by the housing authority it is not clear that § 8-67 applies to those allegations.
The Rockwell court relied heavily on the Supreme Court's decisions in Fogarty v. Rashaw, 193 Conn. 442, 476 A.2d 582 (1984), and D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 429 A.2d 908 (1980). See Rockwell v. Quintner, supra, 96 Conn.App. 230-32.
Accordingly, the court concludes that the defendants have failed to establish the absence of genuine issues of material fact and are not entitled to judgment as a matter of law.
For the reasons set forth above, the defendants' motion for summary judgment is denied.