Tom Silberstein et al. v. 54 (2010)

MEMORANDUM OF DECISION RE MOTION FOR REARGUMENT # 289

The court has reviewed the plaintiffs' Motion to Reargue.   As stated in their motion, the plaintiffs move for reargument on the ground that there was a misapprehension of the facts in the court's Memorandum of Decision that granted the Motion for Summary Judgment brought by the Hillcrest Park Tax District and Hillcrest Park Association, Inc. Specifically, the plaintiffs contend that the court was incorrect when it stated that “[i]n their Memorandum of Law, the plaintiffs do not dispute that the acts alleged in the operative complaint are discretionary in nature.”   The plaintiffs now argue that they do, in fact, dispute this issue.

First, the court notes that in section D of the plaintiffs' Memorandum of Law, which discusses governmental immunity, there is no argument regarding the ministerial/discretionary dichotomy.   Although there is one boilerplate quotation indicating that municipal employees can be held liable for ministerial acts, the entirety of this section discusses the applicability of the malice and imminent harm exceptions to governmental immunity.   Nevertheless, the plaintiffs now argue that the out-of-state cases found in section C of their brief stand for the proposition that the defendants were engaged in ministerial acts.   A close examination of this portion of the plaintiffs' Memorandum of Law also reveals that the plaintiffs made no actual argument that the malfeasances alleged in the complaint were in violation of a ministerial duty.   Rather, this section of the plaintiffs' brief only mentions case law indicating that some out-of-state courts have found there is a “duty” to maintain municipal storm sewer systems.   When ruling on this motion, the court thought that these cases were meant to support the plaintiffs' position that there was a fiduciary duty between the parties, which was briefed in section B of the plaintiffs' Memorandum of Law in opposition.

In any event, even if the plaintiffs were arguing that the defendants had engaged in ministerial acts, there is no genuine issue of material fact that the facts alleged in the operative complaint are discretionary in nature.   As noted in the court's Memorandum of Decision, the out-of-state cases cited by the plaintiffs do not represent the law of this state.   Accordingly, these cases are rejected as persuasive authority.   Under Connecticut law, “municipal acts that would otherwise be considered discretionary will only be deemed ministerial if a policy or rule limiting discretion in the completion of such acts exists.”  Benedict v. Norfolk, 296 Conn. 518, 520 n.4, 997 A.2d 449 (2010).   In order for an act to be considered ministerial, “the plaintiffs [need] to allege that there was [a] rule, policy, or directive that prescribed the manner in which ․” the alleged activities were to be completed.   Violano v. Ferndandez, 280 Conn. 310, 324, 907 A.2d 1188 (2006).   In the present case, the plaintiffs have brought forth no evidence that raises a genuine issue of material fact that the defendants acted in violation of any rule, policy or directive to control flooding or development in the plaintiffs' neighborhood.   Accordingly, the court denies the plaintiffs' Motion to Reargue and affirms its decision to grant summary judgment in favor of the defendants, Hillcrest Park Tax District and Hillcrest Park Association, Inc.

BY THE COURT

MINTZ, J.

Mintz, Douglas C., J.