Rose Pinchuk v. Pasquale Ciullo (2010)

Memorandum of Decision on Motion to Reinstate Prejudgment Attachment (No.147) And Motion to Reinstate Amount of Prejudgment Attachment (No.148)

Factual/Procedural Background

This is a civil action for damages allegedly incurred by the plaintiff as a result of a physical assault upon her by the defendant on July 4, 2007.   At the commencement of the action this court (Karazin, J.) entered ex parte prejudgment attachments in the amount of $1 million against two properties owned by the defendant at One Byram Dock Street and 172 Byram Shore Road in Greenwich.   The foregoing attachments were reconfirmed by Judge Karazin shortly thereafter following a hearing conducted pursuant to Conn. Gen.Stat. § 52-278d.   Judge Karazin indicated at that time that the amount of the attachment was based in part on his supposition that the plaintiffs, if successful at trial, might become entitled to double or triple damages for an intentional tort pursuant to statute or case law, and invited the counsel to submit authority that might confirm that supposition.   Although counsel for both parties advised the court by letters dated August 21, 2007 and August 22, 2007 that they had found no authority that would permit the recovery of double or triple damages in this case, the attachments were not modified at that time.

On March 12, 2010 the defendant moved (No. 117) to modify the prejudgment remedy by reducing the amount of the attachment to $100,000 and to release the attachment of One Byram Dock Street, leaving the attachment to encumber only the property at 172 Byram Shore Road. While that motion was pending the court (Mottolese, J.) on April 5, 2010 entered a judgment of dismissal of the case pursuant to Practice Book § 13-14 for plaintiff's failure to comply with defendant's interrogatories and requests for production of documents.   The defendant then promptly moved to dissolve the prejudgment remedy (No. 120) since the case had been dismissed.

The motion to reduce the attachment came up on the short calendar of May 3, 2010.   Although the case was dismissed at that point, the court (Mottolese, J.), by agreement of counsel, modified the prejudgment attachment by reducing the amount thereof to $500,000 and to limit the attachment to the property at 172 Byram Shore Road. (Order, No. 117.86) A modified order of attachment reflecting the foregoing order was then recorded on the Greenwich land records.   On July 6, 2010, however, the court denied the plaintiff's motion (No. 134) to open the judgment of dismissal and granted the defendant's motion to dissolve the prejudgment remedy (Order, No. 120.86).   A copy of that order accompanied by a Notice of Dissolution of Prejudgment Attachment was then recorded on the Greenwich land records on or about July 20, 2010.   Thereafter, on August 25, 2010 Judge Mottolese, following a hearing, granted the plaintiff's Motion to Reargue and Reconsider the dismissal of the action, and set aside the dismissal of April 5, 2010 and restored the case to the docket.   (Memorandum of Decision dated 8/25/10.   No. 140).

Now before the court are two motions filed by the plaintiff on September 29-30, 2010:  to reinstate the prejudgment attachment but only as to the property of the defendant at 172 Byram Shore Road, and to reinstate the original amount of the attachment at $1 million.   These motions have been briefed by each party and were argued before the undersigned at the short calendar of November 1, 2010.

Discussion

Having considered the foregoing background and the arguments of the parties, the court feels that the interests of justice would be served by reinstating the prejudgment attachment against the property at 172 Byram Shore Road. The attachment has been outstanding against that property since this action was commenced more than three years ago, except for the brief period earlier this year when the case was dismissed.   Although originally entered ex parte, the attachment was reconfirmed when Judge Karazin found probable cause following a bilateral hearing on August 20, 2007.   Defendant now argues that no attachment is necessary at this time because the defendant has a homeowner's insurance policy with Pacific Indemnity Company affording liability coverage of $3 million for each occurrence.   A copy of the declarations page of that policy effective 3/23/07 has been submitted as an attachment to defendant's brief.   But counsel advised the court at oral argument that Pacific Indemnity Company has issued a reservation of rights letter with respect to its duty to indemnify for the damages alleged by the plaintiff in this case.   Although no copy of that letter has been made available to the court, its very existence casts some doubt on plaintiff's ability to be indemnified by the insurance company for any damages she may recover, and her need for a prejudgment remedy continues to be valid.   It is also significant that the insurance policy was also in effect when counsel agreed on the record just six months ago to a reduced attachment of $500,00 against the property at 172 Byram Shore Road.

The motion to reinstate the attachment to the original amount of $1 million is governed by counsel for the plaintiff's admission at oral argument that he is presently asking to restore the attachment on 172 Byram Shore Road in the amount of $500,000.   He concedes that the original $1 million amount was premised on a supposition of double or triple damages for which there is no authority under Connecticut law.   Furthermore, counsel's agreement of May 3, 2010 to reduce the attachment amount from $1 million to $500,000, and the resulting order of the court accepting and implementing that agreement, would be followed by this court in the absence of any evidence of aggravated injuries as the law of the case.   If there is a claim of aggravated injuries or damages plaintiff has the right to seek an upward modification of the attachment pursuant to Conn. Gen.Stat. § 52-278k.

Order

Plaintiff's Motion to Reinstate Prejudgment Attachment (No. 147) is granted.   Plaintiff's Motion to Reinstate Amount of Prejudgment Attachment (No. 148) is denied.   The court therefore orders and grants a prejudgment attachment against defendant's property at 172 Byram Shore Road, Greenwich, CT in the amount of $500,000.   Counsel for the plaintiff shall submit a written order of attachment in form suitable for recording in the Greenwich land records.

Alfred J. Jennings, Jr. J.T.R.

Jennings, Alfred J., J.T.R.