2004 Ct. Sup. 1746
No. 124994Connecticut Superior Court, Judicial District of New London at Norwich
January 27, 2004
MEMORANDUM OF DECISION
MARTIN, JUDGE.
On May 3, 2002, the plaintiff filed a complaint against several defendants seeking a foreclosure of municipal tax liens, possession of the premises, as well as, attorneys fees, interest and costs.
The plaintiff alleges the following facts in the complaint. Real property taxes were assessed on property owned by the defendant John Gaynor, Jr., which became due and payable. The real property taxes were not paid from October 1, 1988 to October 1, 2000. The tax collector of the town of Montville filed and recorded certificates of lien for the unpaid taxes. On March 21, 2002 the tax collector of Montville and the town assigned the town’s interest in the tax liens to the plaintiff, 855 Route 32 Associates, LLC. The defendant commissioner of environmental protection of the state of Connecticut has an interest in the property being foreclosed because of a judgment lien in the amount of $350,000. The judgment lien is junior and subordinate to the interest of the plaintiff. The state department of environmental protection also has an interest in the property being foreclosed because of orders dated November 28, 1990 and March 27, 1991 that were issued for the property.[1]
On August 5, 2003, the commissioner filed an answer and special defense. As a special defense, the commissioner asserts that the two pollution abatement orders issued for the property may not be extinguished by a foreclosure action. On August 27, 2003 the plaintiff filed a motion for judgment of strict foreclosure and for possession of the property.
The plaintiff filed a motion for summary judgment and memorandum of law in support on September 2, 2003. On September 4, 2003, the commissioner filed a memorandum of law in opposition to the plaintiff’s motion for summary judgment. CT Page 1747
“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 . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.” (Internal quotation marks omitted.) Webster Bank v. Oakley, 265 Conn. 539, 545, 830 A.2d 139 (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.” (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). “[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way.” (Internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).
The plaintiff’s memorandum of law in support of its motion argues that the commissioner’s special defense is not an actual defense to a foreclosure action because it does not relate to the making, validity, or enforcement of the municipal tax liens. Throughout the plaintiff’s memorandum of law, the plaintiff challenges the legal sufficiency of the commissioner’s special defense. By challenging the validity of commissioner’s special defense, the plaintiff appears to be moving for summary judgment on the special defense.
“The decisions of the Connecticut Superior Court are almost in unanimous agreement that a motion for summary judgment as to a special defense is improper. Such a motion is improper because Practice Book § 17-44 does not provide for summary judgment on special defenses.” Verderame v. Anderson Sunnyside Farm,
Superior Court, judicial district of New Haven, Docket No. CV 97 0406638 (May 1, 2003, Arnold, J.). Accordingly, if the plaintiff is moving for summary judgment on the special defense, the motion is denied because it is procedurally improper.
In the alternative, the plaintiff’s memorandum of law could be read as arguing that the plaintiff is entitled to summary CT Page 1748 judgment on the foreclosure complaint. In that regard, the plaintiff has not met its burden of showing the absence of any genuine issue of material fact and is not entitled to judgment as a matter of law because the plaintiff has not made out its prima facie case for foreclosure of the municipal tax liens.
“In any action to foreclose a municipal tax or assessment lien the plaintiff need only allege and prove: (1) The ownership of the liened premises on the date when the same went into the tax list, or when said assessment was made; (2) that thereafter a tax in the amount specified in the list, or such assessment in the amount made, was duly and properly assessed upon the property and became due and payable; (3) (to be used only in cases where the lien has been continued by certificate) that thereafter a certificate of lien for the amount thereof was duly and properly filed and recorded in the land records of the said town on the date stated; (4) that no part of the same has been paid; and (5) other encumbrances as required by the preceding section.” (Internal quotation marks omitted.) Danbury v. Dana Investment Corp., 249 Conn. 1, 17 n. 20, 730 A.2d 1128 (1999); quoting Practice Book § 10-70.
In the present action, the plaintiff did not submit any evidence in support of its motion for summary judgment. The plaintiff submitted to the court only its motion for summary judgment and an accompanying memorandum of law in support. The plaintiff, without submitting evidence, cannot make out its prima facie case for foreclosure of the municipal tax liens. The plaintiff, therefore, has not met its burden of showing the absence of any genuine issue of material fact and is not entitled to judgment as a matter of law.
For the above-stated reasons, the plaintiff’s motion for summary judgment is denied.
Martin, Judge.
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