Opinion
CV186012651S
01-13-2020
Michael Ryan v. Town of Hamden et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Sizemore, Nada K., J.
MEMORANDUM OF DECISION RE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT #114 PLAINTIFF’S OBJECTION TO MOTION FOR SUMMARY JUDGMENT #118
Nada K. Sizemore, Judge
This matter comes to the court for decision on the Defendant Town of Hamden and Hamden Employees Retirement Board Motions for Summary Judgment dated July 19, 2019 (Entry #114) and the Plaintiff Michael Ryan’s Objection dated September 16, 2019 (Entry #118). The matter presented for oral argument at short calendar on October 15, 2019.
After careful consideration and review of the briefs, numerous exhibits and arguments, this court DENIES the Motion for Summary Judgment as to the First, Second and Third Counts, on the basis that there are many genuine issues of material fact that are incapable of being decided by this dispositive motion without clarifying testimony and evidence.
As to the negligence claims in Counts Four and Five, the court GRANTS summary judgment in favor of the Defendants finding that there are no genuine issues of material fact as to these counts, and the defendants are entitled to judgment as a matter of law.
The court bases its decision on the following analysis.
PROCEDURAL HISTORY
By Revised Complaint dated July 6, 2018, plaintiff Michael Ryan brings suit by a five-count complaint against the defendants Town of Hamden and the Hamden Employee Retirement Board.
Plaintiff Ryan claims that he was hired by the Town of Hamden Board of Education as a budget manager as of January 24, 1983. He was promoted to Asst. Superintendent on July 1, 1992. For his pension benefits, from February 1, 1983 to January 1, 1993, he accrued service under the Town of Hamden pension plan. He became a member of the Teacher Retirement system as of January 1, 1993.
Prior to his work in Hamden, he had served in the military from 1971 to 1975 for a period of three (3) years, eleven (11) months and fifteen (15) days of active service.
He retired from the Town of Hamden and collects pension benefits from the Teacher Retirement system. He does not collect a pension from the town of Hamden as he was one month short of qualifying for benefits. He claims that he was never advised by the Town or the Employee Retirement board that he could have used Hamden Town Ordinance Section 31.33 and used his military service as additional credit under the Town pension plan, so as to qualify for those additional pension benefits.
He now claims the town and the Town Retirement Board are liable to him for failure to provide his pension benefits and by failing to permit him to buy his military services time for purposes of pension eligibility calculations.
By five-count complaint, he asserts claims in breach of contract, unjust enrichment, and breach of covenant of good faith and fair dealing, and negligence. The first four counts are addressed to the Town of Hamden only and the Fifth Count is addressed to the Retirement Board only.
In the First Count, he claims the Town of Hamden breached its employment and/or pension agreement with him by failing to permit him to buy his military service and by failing to provide pensions benefits. He claims that the Town failed to advise him of the military service option and denied his ability to buy such to bridge the one-month gap. He claims money damages as a result of this breach.
In the Second Count, he claims the Town of Hamden has been unjustly enriched by failing to provide the pension benefits.
Plaintiff in the Third Count claims the Town of Hamden breached the covenant of good faith and fair dealing in the pension and employment agreement by: (a) failing to inform Plaintiff of his ability to buy his military service; (b) failing to inform plaintiff that, at the time of his promotion, he had insufficient credited service to obtain pension benefits; (c) failing to allow plaintiff to buy his military service as credited service; (d) failing to provide an option to plaintiff to obtain the one additional month needed to obtain pension benefits; and (e) failing to provide pension benefits despite his credited service and military service.
In the Fourth Count, plaintiff sues the Defendant Town claiming that it was negligent by:
a. Failing to inform Michael Ryan of his ability to buy his military services;
b. Failing to inform Michael Ryan, that, at the time of his promotion, he had insufficient credited service to obtain pension benefits;
c. Failing to allow Michael Ryan to buy his military service as credited service;
d. Failing to provide an option to Michael Ryan to obtain the one additional month needed to obtain pension benefits; and
e. Failing to provide any pension benefits despite Michael Ryan’s credited service and military service.
Last, in the Fifth Count, plaintiff claims the Hamden Employee Retirement Board was negligent by (a) failing to allow him to buy his military service as credited service; (b) failing to provide an option to Michael Ryan to obtain the one additional month needed to obtain pension benefits; and (c) failing to provide any pension benefits despite Michael Ryan’s credited service and military service.
By Answer and Special Defenses dated August 11, 2018, the defendants generally deny the plaintiff’s claims and raise four special defenses. In the First Special Defense as to First, Second and Third Counts, the defense claims he has failed to exhaust his administrative remedies. In the Second Special Defense addressed to the Fourth and Fifth counts, they claim governmental immunity under common law and/or under C.G.S. Section 52-557n, in that the complained conduct was performed in good faith, without malice, and in the exercise of discretion. And, in the Third Special Defense, defendants claim the negligence Fourth and Fifth counts are time barred by C.G.S. Section 52-584. And in the Fourth Special defense, they claim plaintiff’s own negligence and carelessness contributed to and was a substantial factor in causing the injuries and losses complained of.
Plaintiff Ryan replied to those defenses on October 30, 2018 so pleadings are now closed. By Motion for Summary Judgment dated July 19, 2019, the defendants move for summary judgment on all five counts per Practice Book Section 17-44. In support of said motion, they have filed a supporting Memorandum of Law and the following exhibits, A to (comprising 202 pages of material). In addition, they have filed a Reply Memorandum dated October 10, 2019 as well to support this Motion.
Those supporting exhibits include: (a) deposition transcript of Michael Ryan taken November 28, 2018; (b) plaintiff’s interrogatory responses dated October 5, 2018; (c) Teacher Annual Agreement dated January 24, 1983; (d) Plaintiff’s letter to H. Hernandez dated June 10, 2010; (e) Plaintiff’s letter dated October 9, 2015 to K. Kelly; (f) K. Kelley letter to plaintiff dated February 16, 2016; (g) plaintiff letter to K. Kelly dated March 23, 2016; (h) retirement board meeting agenda and minutes February 8, 2017 and March 8, 2017; (i) undated letter from J. Shears to plaintiff; (j) defendants’ responses to interrogatories dated June 11, 2019; (k) Town of Hamden Ordinances, Section 31.30; (l) retirement plan for non-bargaining service employee dated July 1, 1990; (m) Town of Hamden Charter; (n) correspondence to Atty. Waltman dated February 15, 2017 and (o) correspondence to Atty. Roberts dated October 5, 2016.
The defense raises three main grounds for summary judgment. First, they claim that all claims must fail as they are time barred by the applicable statutes of limitation on the contract and negligence counts.
Second, they claim that all contract allegations must fail because there was no contract or implied contract breached here; because plaintiff did not perform the obligations which would have entitled him to a vested pension under the town retirement plan; to the extent any contract existed, the town did not breach such and plaintiff cannot satisfy each of the required elements for any of his breach of contract, unjust enrichment or covenant of good faith claims.
Third, they claim the negligence claims should fail because neither defendant owed or breached any duty in regard to his pension ineligibility, nor the conduct underlying those claims is immunized by governmental immunity to which no exception applies.
Plaintiff objects to the Motion for Summary Judgment by Objection dated September 16, 2019 and files its own documentary exhibits in opposition to the motion. Essentially, plaintiff Ryan claims that the defendants cannot establish there are no genuine issues of material fact on all the claims launched by the Defendants, so summary judgment is inappropriate. In opposition to the Motion, the Plaintiff Ryan has filed the following 28 pages of exhibits: (1) Affidavit of Michael Ryan dated August 30, 2019; (2) Defendants’ Responses to Request for Admission dated July 16, 2019; and (3) Excerpts of the deposition transcript taken of Plaintiff Ryan.
The parties presented for oral argument on October 15, 2019 at short calendar.
STANDARD OF REVIEW
"Summary judgment is a method of resolving litigation when 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 ... The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried ... However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ... the moving party for summary judgment is held to a strict standard ... of demonstrating his entitlement to summary judgment." (Citation omitted; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012).
"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.) Bozelko v. Papastavros, 323 Conn. 275, 282, 147 A.3d 1023 (2016).
"[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way ... [A] summary disposition ... should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party ... [A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." (Citations omitted; emphasis in original; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).
"[T]he genuine issue aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred ... A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Insurance Co., 259 Conn. 527, 550, 791 A.2d 489 (2002). "The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ... and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ... A material fact ... [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 821, 116 A.3d 1195 (2015).
"Although [the Supreme Court has] recognized ... that, in complex cases, it may be more difficult to determine in advance of trial whether there exist any disputes regarding material facts, the opinions do not stand for the proposition that summary judgment is inappropriate in complex cases where the absence of disputes regarding material facts can be established. Succinctly stated, as a matter of law, no case is too complex for summary judgment." Gould v. Mellick & Sexton, 263 Conn. 140, 147, 819 A.2d 216 (2003), citing Miller v. United Technologies Corp., 233 Conn. 732, 752, 660 A.2d 810 (1995), and United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 375, 260 A.2d 596 (1969).
APPLICATION TO CASE AT BAR
1. Statute of Limitations Arguments
As part of the Motion for Summary Judgment, the defendants have argued that several different statutes of limitations, from C.G.S. Section 52-576 to Section 52-584 are operative, and thus bar the claims made by Plaintiff Ryan’s contractual and/or negligence theories asserted in the five counts of the complaint. However, a review of the defense and plaintiff’s briefs and supporting extensive documentary exhibits, does not enable this court to make proper legal findings on the statute of limitations arguments. The defendants have filed no supporting affidavit by any witness; yet their briefs are riddled with several factual assertions about the alleged contract terms, and the alleged communications and notices provided to and from Plaintiff Ryan regarding his pension discussions through the years with the City of Hamden. Many of these alleged facts are in dispute, and are essential to considering the statute of limitation claims. Thus, it makes this court unable to declare any legal conclusions on the statute of limitations arguments.
"[I]n the context of a motion for summary judgment based on a statute of limitations special defense, a defendant typically meets its initial burden of showing the absence of a genuine issue of material fact by demonstrating that the action had commenced outside of the statutory limitation period ... When the plaintiff asserts that the limitations period has been tolled by an equitable exception to the statute of limitations, the burden normally shifts to the plaintiff to establish a disputed issue of material fact in avoidance of the statute." Cefaratti v. Aranow, 321 Conn. 637, 645-46, 138 A.3d 837 (2016). "Put differently, it is then incumbent upon the party opposing summary judgment to establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact exists." (Internal quotation marks omitted.) Iacurci v. Sax, 313 Conn. 786, 799, 99 A.3d 1145 (2014).
After the court’s extensive review of all documentation, this court cannot find that the Defendants have met the required burden of proof to allow the court to rule on the applicability of the appropriate statute of limitations; or on the date of the alleged conduct or breach complained of; or on the tolling question; or on the claim of a continuing course of conduct. Therefore, the court denies summary judgment on the statute of limitations claims, and reserves those issues for the trial court, after admissible evidence and more clarity is provided on how and which of these statutes become operative to the plaintiff Ryan’s claims.
2. Contract Claims
Similarly, as to the claims for summary judgment based on the breach of contract claims, unjust enrichment and breach of covenant of good faith and fair dealing, the court also cannot find enough evidence to grant summary disposition of those issues. The essential terms of the alleged pension agreement and/or employment agreement referred to in this matter are not clear, as the pension agreement is not in evidence and the full complete employment contract was not part of the submission. So it is impossible for this court to help determine whether any contract existed, and if so was such breached and if so, did that breach provide an actionable theory for Plaintiff Ryan to sue and recover the damages claimed.
Therefore, again, the defendants have failed to meet the burden to warrant the entry of summary judgment. These issues are more suited for trial.
3. Governmental Immunity Claims
Last, in counts Four and Five, the Plaintiff Ryan relies on claims of negligence against the Defendant Town of Hamden and the Hamden Retirement Board. In part, the defendants claim governmental immunity for these negligence claims per Conn. Gen. Statute Section 52-557n and general common-law immunity. They now move for summary judgment based on those immunity arguments.
Counts four and five of the plaintiff’s July 6, 2018 revised complaint allege negligence against the town of Hamden. (town) and the Hamden Employees Retirement Board (board), respectively. Count four of the revised complaint alleges that the town was negligent in that it failed to: (a) inform the plaintiff of his ability to buy his military service; (b) inform the plaintiff, that at the time of his promotion, he had insufficient credited service to obtain pension benefits; (c) allow the plaintiff to buy his military service as credited service; (d) provide an option to the plaintiff to obtain the one additional month needed to obtain pension benefits; and (e) provide any pension benefits to the plaintiff despite his credited and military service.
In Count Five, plaintiff Ryan alleges that the board was negligent in that it failed to: (a) allow the plaintiff to buy his military service as credited service; (b) provide an option to the plaintiff to obtain the one additional month needed to obtain pension benefits; and (c) provide any pension benefits to the plaintiff despite his credited and military service.
In their motion for summary judgment, the defendants argue that the negligent conduct alleged in counts four and five was discretionary in nature and therefore, they are immune from liability under General Statutes § 52-557n. The defendants further argue that the negligence claims necessarily invoke discretionary act immunity due to the plaintiff’s failure to plead the existence or violation of a written policy, directive, or guideline. The plaintiff counters that it cannot be determined as a matter of law that the defendants’ acts were discretionary and that the defendants have failed to submit any evidence that there was no directive relating to informing employees regarding the pension statute or of the ability to buy back military time. The plaintiff further argues that the defendants’ act of failing to inform the plaintiff of his ability to buy back his military service was ministerial because an arbitration decision required the defendants to print the pension provisions in an updated booklet form.
The defendants also argue that no exception to discretionary act immunity, specifically the identifiable person/imminent harm exception, applies in the present case. "[Connecticut Supreme Court] cases recognize three ... exceptions [to discretionary act immunity]: first, where the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm ... second, where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws ... and third, where the alleged acts involve malice, wantonness or intent to injure, rather than negligence." (Internal quotation marks omitted.) Burns v. Board of Education, 228 Conn. 640, 645, 638 A.2d 1 (1994). Although the defendants argue that no exception applies, the plaintiff has neither pleaded these exceptions or circumstances in avoidance of the town’s special defense of governmental immunity as required by Practice Book § 10-57, nor referred to or relied on any of them in response to the defendants’ motion. Moreover, in the reply memorandum, the defendants recognize that the plaintiff has not tried to rely on the exception.
(a) Standard of Review- Governmental Immunity Claims
The issue is whether governmental immunity under General Statutes § 52-557n applies to counts four and five of the plaintiff’s revised complaint. Section 52-557n provides in relevant part: "(a) (1) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties ... (2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by ... (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law." "[Section] 52-557n abandons the common-law principle of municipal sovereign immunity and establishes the circumstances in which a municipality may be liable for damages." (Internal quotation marks omitted.) Ventura v. East Haven, 330 Conn. 613, 629, 199 A.3d 1 (2019). "It is well settled that municipal employees are immune from liability for negligence arising out of their discretionary acts in part because of the danger that a more expansive exposure to liability would cramp the exercise of official discretion beyond the limits desirable in our society ... The hallmark of a discretionary act is that it requires the exercise of judgment ... In contrast, municipal [employees] are not immune from liability for negligence arising out of their ministerial acts; [which are] defined as acts to be performed in a prescribed manner without the exercise of judgment or discretion." (Emphasis added; internal quotation marks omitted.) Strycharz v. Cady, 323 Conn. 548, 564-65, 148 A.3d 1011 (2016).
The plaintiff, in his objection, argues that summary judgment is not appropriate because "the determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder" and summary judgment may be granted only when the issue is obvious from the face of the complaint. Colon v. New Haven, 60 Conn.App. 178, 181, 758 A.2d 900 (2000). In 2019, "our Supreme Court resolved confusion in our case law regarding the question of whether an act is ministerial should be determined by the trier of fact or by the trial court as a matter of law. The court decided that it is the responsibility of the latter." Kusy v. Norwich, 192 Conn.App. 171, 180-81, 217 A.3d 31, cert. denied, 333 Conn. 931 (2019. The Supreme Court concluded that "[t]he ultimate determination of whether ... immunity applies is ordinarily a question of law for the court ... [unless] there are unresolved factual issues material to the applicability of the defense ... [in which case] resolution of those factual issues is properly left to the jury." (Internal quotation marks omitted.) Ventura v. East Haven, supra, 330 Conn. 632. "In the absence of unresolved issues of fact, a court may render summary judgment in favor of the defendant if it is apparent from the complaint that the [defendant’s] allegedly negligent acts or omissions necessarily involved the exercise of judgment, and thus, necessarily were discretionary in nature ..." (Internal quotation marks omitted.) Kusy v. Norwich, supra, 181, quoting Coley v. Hartford, 312 Conn. 150, 162, 95 A.3d 480 (2014). "Indeed, [the Appellate Court] has held that it is appropriate for a trial court to grant a municipal defendant’s motion for summary judgment if the plaintiff is unable to proffer a directive that would impose a ministerial duty." Kusy v. Norwich, supra, 181.
The complaint must allege that the defendant was required by a city charter provision, ordinance, regulation, rule, policy, or written directive to act in any prescribed manner. See Violano v. Fernandez, 280 Conn. 310, 323, 907 A.2d 1188 (2006). In Violano, the Supreme Court determined that governmental immunity applied to a city employee’s failure to secure a building resulting in a robbery. Id., 324. The court found that "the plaintiffs ... have failed to allege that there was any rule, policy, or directive that prescribed the manner in which [the defendant] was to secure the property. Rather, the complaint alleges only that [the defendant] exercised poor judgment in the manner in which he secured the building." Id. The Supreme Court based its determination on the Appellate Court’s decision in Colon v. New Haven, supra, 60 Conn.App. 178. In Colon, the Appellate Court determined that "[i]t [was] apparent from the complaint that the plaintiffs [had] not alleged that [the defendant] was performing a ministerial duty. There [was] no allegation that [the defendant] was required to perform in a [prescribed] manner and failed to do so." (Footnote omitted.) Id., 182.
"[O]ur courts have consistently held that to demonstrate the existence of a ministerial duty on the part of a municipality and its agents, a plaintiff ordinarily must point to some statute, city charter provision, ordinance, regulation, rule, policy, or other directive that, by its clear language, compels a municipal employee to act in a prescribed manner, without the exercise of judgment or discretion ... [T]he construction of any such provision, including a municipal rule or regulation, presents a question of law for the court ..." (Internal quotation marks omitted.) Ventura v. East Haven, supra, 330 Conn. 631. "For purposes of determining whether a duty is discretionary or ministerial, [our Supreme Court] has recognized that [t]here is a difference between laws that impose general duties on officials and those that mandate a particular response to specific conditions." (Internal quotation marks omitted.) Northrup v. Witkowski, 332 Conn. 158, 169, 210 A.3d 29 (2019). "[E]vidence of a policy that merely states general responsibilities without provisions that mandate the time or manner in which those responsibilities are to be executed, leaving such details to the discretion and judgment of the municipal employees, is insufficient to show that the act is ministerial." (Internal quotation marks omitted.) Kusy v. Norwich, supra, 192 Conn.App. 177.
(b) Allegations in Count Four Against the Town
The plaintiff first alleges in count four that the town failed to inform him (1) of his ability to buy his military service, and (2) that at the time of his promotion, he had insufficient credited service to obtain pension benefits. The plaintiff, in his objection to the motion for summary judgment, argues that a genuine issue of material fact exists because the defendants have not introduced any evidence that there was no policy or procedure relating to informing employees regarding pension status at the time of promotion and of the ability to purchase military time. In support of this argument, the plaintiff cites to Embry v. Hartford, Superior Court, judicial district of Hartford, Docket No. CV-07-5014615-S (September 13, 2012, Peck, J.) ("[t]he City failed to submit an affidavit, or any other evidence, attesting to the fact that there were no written guidelines, policies or regulations governing prevention of access to the pool after hours or that the City was not compelled to follow any of the rules or directives alleged by the plaintiffs in the prevention of afterhours access to the pool"). This argument is misplaced, however, because in cases involving governmental immunity the plaintiff must prove that the act is ministerial in nature by pointing to some directive, which "compels a municipal employee to act in a prescribed manner, without the exercise of judgment or discretion." Ventura v. East Haven, supra, 330 Conn. 631. In Embry v. Hartford, supra, Superior Court, Docket No. CV-07-5014615-S, the plaintiff pleaded specific ministerial directives- sections of the Connecticut Public Health Code- and the defendant subsequently failed to provide any evidence that the sections of the code did not prescribe a ministerial directive. In the present case, the plaintiff’s complaint fails to point to such a specific directive or allege that the defendants’ conduct in regard to these allegations was ministerial in nature. These allegations assert only that the defendants were negligent by failing to inform the plaintiff of certain things. Nowhere in the complaint does the plaintiff allege that such omissions complained of were ministerial, or that the defendants were required to perform in a prescribed manner and failed to do so. In cases involving governmental immunity, summary judgment may be granted if the plaintiff fails to proffer a directive imposing a ministerial duty on the defendant. See Kusy v. Norwich, supra, 192 Conn.App. 181.
The plaintiff argues in his objection, however, that the defendants’ failure to inform the plaintiff of his ability to purchase his military service was ministerial because an arbitration decision required the defendants to print the pension provisions in a booklet. The arbitration stipulation states that "[t]he Town or the Pension Board shall have the Pension Provisions updated and printed in booklet form no later than July 1, 1992." (Plaintiff’s Objection, Exhibit 2.) The plaintiff further argues that this stipulation also required the booklet to be distributed to employees because it would be meaningless unless the employees were made aware of it. Nothing in the stipulation, however, prescribes the town to distribute the booklet or sets forth the prescribed manner in which the town was to do so, and, therefore, no ministerial duty was created. The plaintiff has failed to proffer a directive that would impose a ministerial duty on the town to inform the plaintiff of his ability to buy back military service and, thus, there is no genuine issue of material fact regarding the existence of a ministerial duty to do so.
Moreover, the plaintiff, neither in his complaint nor in his objection to the motion for summary judgment, proffers a directive that would impose a ministerial duty on the town to inform the plaintiff that he has insufficient credited service to obtain pension benefits. Therefore, there is no genuine issue of material fact regarding the existence of a ministerial duty to inform the plaintiff of this.
(c) Allegations in Counts Four and Five Against the Town and the Board
The plaintiff further alleges in counts four and five that the town and the board failed to (1) allow the plaintiff to buy his military service as credited service; (2) provide an option to the plaintiff to obtain the one additional month needed to obtain pension benefits; and (3) provide any pension benefits to the plaintiff despite his credited and military service. In paragraph 8 of count one, which is incorporated in the fourth and fifth counts, the plaintiff alleges that section 31.33 of the Hamden, CT Code of Ordinances, enacted in March 2001, permits a member to buy military service as credited service. The defendants submitted the relevant sections of the Hamden, CT Code of Ordinances in support of their motion for summary judgment. (Motion for Summary Judgment, Exhibit K.) Section 31.33(B)(1) provides: "A member shall be allowed to purchase credited service for active military duty prior to employment with the town. A member may purchase a minimum of six months, up to a maximum of four years. A member must provide documentation of military service in the form of a D.D.214, and must have been honorably discharged." Under the retirement plan, a "member" can be either: (1) an "active member," defined as "a member who is an eligible employee and is participating in the plan"; (2) a "retired member," defined as "a member who is no longer an eligible employee and has begun receiving a retirement pension from the plan"; or (3) a "terminated vested member," defined as "a member who has a vested interest in the plan but who is no longer an employee of the town." (Hamden, CT Code of Ordinances § 31.30.) Section 31.33 creates a ministerial duty in that the defendants shall allow a member of the retirement plan to purchase military service as credited service. The language of section 31.33 does not give the defendants discretion when allowing a member to purchase military service, but, instead, states that members "shall be allowed" to do so as long as they provide the necessary documentation and meet the requirements.
The ministerial duty created by section 31.33, however, applies only to members. The defendants argue in their motion for summary judgment that section 31.33(B) does not authorize non-members of the plan who have incurred a permanent break in service and, thus, have no credited service, to purchase military service. The plaintiff only accrued nine years and eleven months of "accredited service" under the plan from February 1, 1983 through January 1, 1993 and did not request to purchase his military service until he was a non-member. (Motion for Summary Judgment, p. 9; Complaint, ¶6.) In a letter to the town’s personnel director dated March 23, 2016, the plaintiff requested to purchase his military service for credited service in order to render him eligible for a vested pension. (Motion for Summary Judgment, Exhibit G.) Additionally, the defendants submit the plaintiff’s interrogatory responses, in which the plaintiff admits that he requested to purchase his military service by letter dated March 23, 2016, to the town’s personnel director. (Motion for Summary Judgment, Exhibit B.) In a letter dated April 18, 2016, the board’s attorney informed the town’s personnel director that the plaintiff did not meet the definition of "member" and, therefore, was not eligible to purchase his military service. (Motion for Summary Judgment, Exhibit G.) The plaintiff submitted an affidavit in support of his objection in which he states: "On March 23, 2016, I wrote a letter to Mr. Kelly requesting the ability to purchase my military time toward my credited service." (Objection, Exhibit 1, ¶18.) The plaintiff’s affidavit further states: "On April 21, 2016, a letter dated April 18, 2016 from Attorney Wallman, stating that I was unable to purchase military time because I am not a member of the plan, was forwarded to me." (Objection, Exhibit 1, ¶19.) At the time the plaintiff requested to buy his military service on March 23, 2016, he did not fall under either of three definitions of a "member" provided in the retirement plan; he was no longer an eligible employee participating in the plan, he had not yet begun receiving a retirement pension from the plan, and he did not have a vested interest in the plan because he did not have ten years of credited service before leaving employment with the town. The plaintiff does not submit any evidence to counter the fact that he was not a member at the time he requested to purchase his military time.
Therefore, this court concludes that there is no genuine issue of material fact that the plaintiff was not a member at the time he requested to purchase his military time, and, thus, was not eligible to do so under section 31.33. Therefore, as a matter of law, the court concludes that governmental immunity protects the defendants from liability in negligence as to the claims made in Counts Four and Five.
CONCLUSION
Therefore, based on the foregoing the court DENIES the defendants’ Motion for Summary Judgment as the First, Second and Third Counts and SUSTAINS the Plaintiff Ryan’s Objections to that part of the summary judgment motion.
And, the Court GRANTS the defendants’ Motion for Summary Judgment as to Counts Four and Five based on the governmental immunity defenses; and the court OVERRULES the Plaintiff’s Objection to those portions of the Motion for Summary Judgment directed to Counts Four and Five.