49 COMMERCIAL PARKWAY, LLC ET AL. v. ROY SALOMONSEN ET AL.

2006 Ct. Sup. 4202
No. CV05 400 37 66Connecticut Superior Court Judicial District of Ansonia-Milford at Milford
March 3, 2006

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION RE PLAINTIFF’S APPLICATION FOR PREJUDGMENT REMEDY AGAINST LISA SALERNO[1]

[1] Although the plaintiff’s post-trial brief claims a Prejudgment Remedy against defendants Lisa Salerno and Daniel Caciopoli, counsel for the plaintiff Brian Fournier at the outset of the Prejudgment Remedy hearing on October 24, 2005 asserted that “this is plaintiffs’ PJR application against Lisa Salerno” see Transcript October 24, 2004, page 2, lines 13, 14.

JOHN W. MORAN, JUDGE TRIAL REFEREE.

The plaintiffs’ 49 Commercial Parkway, LLC and Hamilton Branford, LLC (collectively hereafter plaintiffs) have brought an application for prejudgment remedy against the defendant Lisa Salerno (Salerno) and others. The plaintiffs complain to have incurred an expense of $49,780 to remediate hazardous waste illegally and negligently dumped on its real property located at 49 Commercial Parkway, Branford, Connecticut by the defendant Daniel Caciopoli (Caciopoli). The plaintiffs also complain that the dumping by Caciopoli was facilitated by Salerno. The plaintiffs further claim that Salerno’s conduct was reckless, therefore warranting punitive damages in the amount of $30,000.

The plaintiffs seek a prejudgment remedy pursuant to Chapter 903a Connecticut General Statutes in the amount of $79,780, to secure a judgment in said amount.

Connecticut General Statutes § 52-278d(a)(1) imposes a probable cause standard of proof on the court in determining whether or not to grant the application for prejudgment remedy.

“Proof of probable cause as a condition of obtaining a prejudgment remedy is not as demanding as proof by a fair preponderance of the evidence.” The legal idea of probable cause is a bona fide belief in the existence of facts essential under the law for the action and such as would warrant a man of CT Page 4203 ordinary caution, prudence and judgment, under the circumstances, in entertaining it. Wall v. Toomey, 52 Conn. 35, 36.

Probable cause is a flexible common sense standard. It does not demand that a belief be correct or more likely than false. It is not necessary for the plaintiff to prove the cause by a fair preponderance of the evidence at the probable cause stage McCahill v. Town Country Associates, Ltd., 185 Conn. 37, 39, 440 A.2d 801 (1931); Augeri v. C.F. Wooding Co., 173 Conn. 426, 428-29, 378 A.2d 538 (1977). A prejudgment remedy proceeding “is not contemplated to be a full scale trial on the merits,” and “it does not lead to a final decision in any sense.” (Internal quotations omitted.) Babiarz v. Hartford Special, Inc., 2 Conn.App. 388, 393, 480 A.2d 561 (1984). In making its determination of probable cause, the court may consider both facts set forth in the plaintiff’s affidavit and facts presented at the hearing. McCahill, supra, 185 Conn. 39; Fleet Bank of Connecticut v. Dowling, 28 Conn.App. 221, 225, 610 A.2d 707
(1992), appeal dismissed, 225 Conn. 447, 623 A.2d 1005 (1993). The probable cause standard applies not only to the factual issues, but to the legal issues as well.

Based on the credible testimony presented at the prejudgment hearing (PJR) the court finds the following.

Salerno was a tenant of real estate identified as 272 New Haven Avenue, Milford, Connecticut, from 2003 to July 6, 2004, which real estate was then owned by Roy Salomonsen et ux. In May 2004, Salerno and Salomonsen et ux entered into a real estate contract that Salerno purchase said real estate. A term of said contract provided that Salomonsen leave the premises “broom clean.”

At the time of the closing, Roy Salomonsen was aged and infirm. A short time prior to closing, Salerno and Salomonsen agreed that in exchange for a credit of $400 as against Salerno’s rent, she agreed to arrange for the clean up of the property, which included hazardous wastes. Salerno engaged Caciopoli to dispose of such property and paid him for his services. Caciopoli dumped such property, including hazardous waste, at 49 Commercial Parkway, Branford, Connecticut.

Although Salerno testified that she acted gratuitously as a favor to Roy Salomonsen, her testimony is undermined by her statement given to the Branford Police Department and its investigation. CT Page 4204

Connecticut General Statutes § 22a-452 provides in pertinent part:

Any person, firm, corporation or municipality which contains or removes or otherwise mitigates the effects of oil or petroleum or chemical liquids or solid, liquid or gaseous products or hazardous wastes resulting from any discharge, spillage, uncontrolled loss, seepage or filtration of such substance or material or waste shall be entitled to reimbursement from any person, firm, or corporation for the reasonable costs expended for such containment, removal, or mitigation, if such oil or petroleum or chemical liquids or solid, liquid or gaseous products or hazardous wastes pollution or contamination or other emergency resulted from the negligence or other actions of such person, firm or corporation. When such pollution or contamination or emergency results from the joint negligence or other actions of two or more persons, firms or corporations, each shall be liable to the others for a pro rata share of the costs of containing, and removing or otherwise mitigating the effects of the same and for all damage caused thereby.

The plaintiff’s fall within the ambit of Connecticut General Statutes § 22a-452 and therefore are entitled to seek damages from Salerno.

The plaintiffs also seek punitive damages from Salerno based on reckless conduct. However, this count cannot conclude, even using a probable cause standard, that Salerno’s conduct was reckless, thus entitling the plaintiffs to punitive damages. Further, despite Attorney Fournier’s contention that he thought that $30,000 attorneys fees were reasonable, there was not any evidence to support this naked contention, not even an authenticated time sheet or affidavit of attorneys fees.

The Court issues a prejudgment remedy in the amount of $49,780 as against Lisa Salerno. CT Page 4205