2011 Ct. Sup. 22882
No. KNL CV 106002471SConnecticut Superior Court Judicial District of New London at New London
November 1, 2011
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#113)
COSGROVE, J.
FACTS
On March 4, 2010, the plaintiffs, Stanley and Elizabeth Lahens, filed a two-count revised negligence complaint against the defendants, Inna Kamenetskaya, Farmington Arms Condominium Association, Inc., and Northeast Property Group, Inc.[1] In count two of the complaint, the plaintiffs allege the following facts. The plaintiffs own unit 2R, which is part of a common interest community known as Farmington Arms Condominium. Kamenetskaya is the owner of unit 3R, located on the third floor directly above the plaintiffs’ unit. On December 6, 2007, Kamenetskaya suffered a leak on her toilet in her unit. The leak was located at a plastic coupling on the toilet and the leak caused a failure in the water supply line, which ran into Kamenetskaya’s toilet. Kamenetskaya failed to do anything about her leaking water supply line and that failure resulted in water leaking from her toilet through the floor into the plaintiffs’ unit.
At the time of the incident, the defendants were in possession and control of the common elements of the Farmington Arms Condominium and they were also responsible for the upkeep and maintenance of the common elements. The plaintiffs’ unit was flooded by water cascading down from Kamenetskaya’s unit, through the sub-floor and through the common elements. The defendants did not make a claim against the master insurance policy until eight months after the water damage occurred.
On July 20, 2011, the defendants moved for summary judgment on the ground that the defendants had no responsibility for the defect that caused the plaintiffs’ alleged injuries. In support of their motion, the defendants submitted a memorandum of law in support and the following evidence: (1) the signed and sworn affidavit of Donald Spence, the maintenance employee responding to the leak, (2) the signed and sworn affidavit of Isabella Peterson, the property manager, (3) a copy of the declaration of condominium and (4) a copy of the bylaws. The CT Page 22883 plaintiffs filed an objection to the motion for summary judgment and a memorandum of law, attaching four letters as “Exhibit A” on September 30, 2011. The matter was heard at short calendar on October 3, 2011. The court, Cosgrove, J., gave the plaintiffs two weeks to file an affidavit in support of their opposition. On October 17, 2011, the plaintiffs filed a supplemental memorandum in opposition, submitting as evidence the following: (1) the signed and sworn affidavit of Elizabeth Lahens and (2) a notarized letter written by Elizabeth Lahens. The defendants filed a reply on October 25, 2011.
DISCUSSION
“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.” Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). “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 . . . 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 . . . Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45].” (Internal quotation marks omitted.)Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).
The defendants argue that it is undisputed that the leak originated in Kamenetskaya’s apartment and, therefore, their motion for summary judgment should be granted. The defendants argue that it is undisputed that the leak occurred “because of a failed coupling in the water supply line to the toilet in the bathroom of unit 3R,” which is an area beyond the possession, control and responsibility of the defendants. Moreover, the defendants argue that the claim against the master insurance policy and proceeds paid therefrom to the plaintiffs were to repair the common elements, not the plaintiffs’ individual unit. In their reply, the defendants argue that nothing contained within the plaintiffs’ CT Page 22884 supplemental filing establishes a genuine issue of material fact that would prevent summary judgment from entering in their favor because Elizabeth Lahens’ affidavit provides that she does not know the source of the leak and the only uncontroverted evidence of the leak’s location comes from Spence’s affidavit. Also, the defendants argue that the first-party insurance claim has no bearing on whether they are liable to the plaintiffs in tort.
The plaintiffs counter that there is a genuine issue of material fact as to the source of the leak, whether it was the fixture in Kamenetskaya’s unit or in the common elements, and, therefore, the motion for summary judgment should be denied. The plaintiffs argue that “[t]here is still significant mystery about what happened on December 6, 2007, and this is a fact question for a fact finder.” In their supplemental memorandum, the plaintiffs argue that there is a genuine issue of material fact as to the liability for the plaintiffs’ loss related to the water damage because the defendants refused to establish or confirm the source of the leak for eight months and the defendants delayed in filing a claim against the master insurance policy covering the common elements with respect to this incident. The plaintiffs argue that the covered loss under the master insurance policy was the plaintiffs’ entire unit, that the defendants “erroneously claim in their motion that their claim to their insurance was only to cover damages to the common elements,” that the belated claim to the master policy suggests that the damage to the plaintiffs’ unit came from more than one source and that the lateness of the claim and the refusal to communicate with the plaintiffs, at least with respect to the adjuster’s report, contributed to the plaintiffs’ losses.
“[T]he party opposing [summary judgment] . . . 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 . . . A party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment . . . Moreover, mere conclusions are insufficient as evidence which would be inadmissible upon trial, such as hearsay.” (Citation omitted; emphasis in original; internal quotation marks omitted.) 12 Havemeyer Place Co., LLC v. Gordon, 93 Conn.App. 140, 157-58, 888 A.2d 141 (2006). “[O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment, and the applicable provisions of our rules of practice contemplate that supporting [or opposing] documents . . . be made under oath or otherwise reliable.” (Internal quotation marks omitted.) Rockwell v. Quinter, 96 Conn.App. 221, 234 n. 10, 899 A.2d 738, cert. denied, CT Page 22885 280 Conn. 917, 908 A.2d 538 (2006). Practice Book § 17-46 provides: “Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto.”
“[H]earsay is an out-of-court statement offered into evidence to establish the truth of the matters contained therein.” (Internal quotation marks omitted.) Connecticut Light Power Co. v. Gilmore, 289 Conn. 88, 115 n. 20, 956 A.2d 1145 (2008). “Hearsay statements are insufficient to contradict facts offered by the moving party . . . and if an affidavit contains inadmissible evidence it will be disregarded . . . If the affidavits and the other supporting documents are inadequate, then the court is justified in granting the summary judgment, assuming that the movant has met his burden of proof.” (Citations omitted; internal quotation marks omitted.)2830 Whitney Avenue Corp. v. Heritage Canal Development Associates, Inc., 33 Conn.App. 563, 568-69, 636 A.2d 1377 (1994).
In the present case, the defendants submitted Spence’s affidavit. Spence, a maintenance employee, stated that he was instructed to investigate and to clean up the leaked water from the December 6, 2007 incident. He “found that the source of the leak was a failed coupling in a water supply line to the toilet in the bathroom of unit 3R (Kamenetskaya).” Spence further stated that the “failed coupling was located inside unit 3R and was not part of the common elements of the condominium complex.” Attached to his affidavit are photographic images of the water supply line and the failed coupling as well as the invoice for the work that Spence performed.
The defendants also submitted Peterson’s affidavit. Peterson, the property manager for the defendants’ complex, stated that excerpts from the declaration of condominium and the bylaws governing the complex were attached to her affidavit. In the declaration of condominium, a “Unit,” defined in section 2.27, is “[a] part of the Condominium including one or more rooms or enclosed spaces located on one or more floors or parts thereof in a Building, intended for any type of independent use, and with a direct exit to a public street or highway or to a Common Element leading to such street or highway . . . Units do not include: (a) All spaces and improvements lying beneath the undecorated or unfinished inner surfaces of the perimeter walls, trim, window glass, doors and floors, and above the undecorated or unfinished inner surfaces of the ceilings. (b) All spaces and improvements lying beneath the undecorated or unfinished inner surfaces of all interior bearing walls, CT Page 22886 or bearing partitions, and partition walls between separate units. (c) All pipes, ducts, wires, conduits and other facilities running through any interior wall or partition for the furnishing of utility services to other Units or to Common Elements.” The common elements, defined in section 2.07, are “[a]ll portions of the condominium other than the Units.” Section 7.09 of the bylaws outlines, in relevant part, the maintenance, repair and replacement responsibilities: “(a) Common Elements: The Association shall maintain, repair and replace all of the Common Elements . . . and in the event that such maintenance, repair or replacement was caused by the negligence or misuse of a Unit Owner, such expense shall be charged to such Unit Owner. (b) Units: Each Unit Owner shall maintain, repair or replace, at his or her own expense, all portions of his or her Unit, except the portions thereof to be maintained, repaired or replaced by the Association. Each Unit Owner shall be responsible for damages to any other Unit or to the Common Elements caused intentionally, negligently or by his or her failure to properly maintain, repair or make replacements to his or her Unit . . .” After quoting the definition of unit, the definition of common elements and the responsibility for maintenance established by the bylaws, Peterson stated that “unit owners are responsible for the maintenance of equipment inside their units, such as interior toilet water supply lines, and the condominium association has no responsibility for maintaining such equipment.”
Attached to their supplemental memorandum in opposition, the plaintiffs offered the affidavit of Elizabeth Lahens. In her affidavit, Elizabeth Lahens stated that she received the letters that were attached to the plaintiffs’ memorandum in opposition as “Exhibit A.” Elizabeth Lahens, in her affidavit, also acknowledged the truth of an October 14, 2010 detailed letter, which was notarized on October 14, 2011.
The affidavit and letter submitted by the plaintiffs do not create a genuine issue of material fact and cannot refute the defendants’ evidence properly before the court. The defendants’ motion is supported by the affidavit of the maintenance worker who responded to the leak, stating what he saw, when he saw it and what the condition was. The affidavit submitted by the plaintiffs confirms that Elizabeth Lahens received the correspondence attached as “Exhibit A” but these letters are not sworn or certified, therefore, the statements of others contained within the letters are hearsay and cannot be considered by the court. Absent some exception to the hearsay rule, not present here, the statements of third parties contained within Elizabeth Lahens’ letter detailing her actions also cannot be considered by the court. It is not sufficient to create a material disputed fact by arguing that the CT Page 22887 plaintiffs do not know where the leak occurred, rather the plaintiffs must support their argument with evidence that would be admissible at trial, such as an affidavit from the plumber who worked on the recently remodeled bathroom in unit 3R, an affidavit from the unit owner or from a tenant, offering some further light on the leak’s original location. Moreover, the defendants’ claim against the master insurance policy and the timing of that claim do not controvert the location of the leak.
Consequently, for the purposes of this motion, it is uncontested that the leak occurred at the plastic coupling inside unit 3R, beyond the control and responsibility of the defendants. Under the declaration of condominium and the bylaws, it is clear that burden is on the unit owner to maintain, repair and make replacements within his or her unit and there are no allegations that any particular conduct of the defendants caused in any direct way the harm complained of by the plaintiffs. The defendants have met their burden of showing no genuine issue as to any material fact regarding the location of the leak and the responsibility of the unit owners to maintain and repair their individual units and the plaintiffs have failed to offer admissible evidence to demonstrate the existence of a disputed fact regarding the leak originating inside unit 3R. Accordingly, the defendants are entitled to judgment as a matter of law.
CONCLUSION
For the foregoing reasons, the defendants’ motion for summary judgment is granted.
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