RILEY v. PIERSON, No. CV-07-5002029-S (Nov. 25, 2009)

2009 Ct. Sup. 19258
No. CV-07-5002029-SConnecticut Superior Court Judicial District of Tolland at Rockville
November 25, 2009

RULING ON MOTION TO REARGUE
BRIGHT, J.

By motion dated November 16, 2009, the plaintiff, Kevin Riley, seeks to reargue the court’s October 26, 2009 decision granting the defendants’ motion for summary judgment and denying the plaintiff’s motion for summary judgment.[1] The plaintiff’s motion is denied for the following reasons.

First, the plaintiff’s motion is not a proper use of a motion to reargue. “The purpose of a reargument is to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts, and it also may be used to address claims of law that the movant claimed were not addressed by the court; however, a motion to reargue is not to be used as an opportunity to have a second bite of the apple.” Comerford v. Peckhman, 2009 Ct.Sup. (LOIS) 15949, 15949-50 (Conn.Super.Ct., October 2, 2009) (A. Robinson, J.), quoting Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 95 n. 28, 952 A.2d 1
(2008); see also Jaser v. Jaser, 37 Conn.App. 194, 203, 655 A.2d 790
(1995).

The plaintiff’s motion is nothing more than a restatement of arguments he previously made to the court. While the plaintiff sets forth his disagreements with the court’s ruling and the reasons for those disagreements, there is nothing new in either legal principles or facts. Further, the plaintiff does not suggest that the court overlooked or misapprehended certain facts or legal principles, just that the court analyzed them incorrectly. The bottom line is that in ruling on the summary judgment motions the court considered and rejected each of the arguments the plaintiff has now restated. The plaintiff’s motion is nothing more than an attempted second bite at the apple. He has presented nothing new that would cause the court to reconsider its previous ruling.

CT Page 19259

Second, the plaintiff’s motion reflects a misunderstanding of the court’s role in ruling on motions for summary judgment. At least five times in his five-page motion to reargue the plaintiff complains that the court did not give proper weight to the allegations of the complaint or the plaintiff’s claims. For example, on page 3, the plaintiff argues that “despite the plaintiff having made out sufficient claims that the penalty sought was not done in good faith, and despite claims that the penalty amounted to roughly 25% of the principal due, the court improperly determined that there was a good faith dispute between the parties (emphasis added).” On page 4, the plaintiff argues that the court “has chosen to ignore plaintiff’s allegations, and find that there was no duress (emphasis added).”

While the plaintiff is entitled to rely on his allegations in response to a motion to dismiss or a motion to strike, mere reference to the language of the complaint is insufficient to defeat a motion for summary judgment that has been properly supported by evidence. In its ruling, the court specifically set forth the well-established rule that “it is not enough, however, for the opposing party merely to assert the existence of such a disputed 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 [in support of a motion for summary judgment].” (Citations omitted). Ruling on Cross Motion for Summary Judgment at p. 3. As noted repeatedly in that ruling, the plaintiff presented no evidence to counter that submitted by the defendants in support of their motion for summary judgment.

This is particularly true as to the issues raised by the plaintiff in his Motion to Reargue. While the plaintiff claims that the amount of the defendants’ prepayment demand was not calculated or made in good faith, he offered no evidence to support this assertion. By contrast, the defendants submitted evidence showing that there was a good faith basis for the amount of their demand. Exhibit 5 to the Affidavit of Leonard Horvath. The plaintiff cannot defeat the defendants’ motion by merely saying that he disagrees and offering no proof that supports his claim or creates a genuine issue of material fact.

The same is true as to the plaintiff’s claim of duress. The plaintiff offered no evidence in support of his claim. Instead, he relied, and continues to rely, exclusively on the fact that his complaint alleges such duress. As noted above, this is simply not enough at the summary judgment stage. CT Page 19260

The Motion to Reargue makes no attempt to remedy these failings. The plaintiff still cites no evidence to counter that offered by the defendants.

For the foregoing reasons, the Motion to Reargue is DENIED.

CT Page 19261