Randall A. Green v. Aaron Hochman et al. (2011)

MEMORANDUM OF DECISION

This action arises out of a successful summary process action brought by the plaintiff against the defendant, Aaron Hochman (Hochman).   In addition to recovering possession of the premises at issue, the plaintiff was awarded a bill of costs of approximately $30,000.00, which was not paid and remains unpaid.   Following the execution of the judgment of possession, the defendant, City of Bridgeport (the City) took possession of Hochman's belongings and stored them with defendant Ken Fitts, d/b/a/ K. Fitts Moving and Storage.   The business entity's legal name is KD3J, LLC, which is also a named defendant (collectively “Fitts”).   Thereafter, the City held various auctions to sell the items as Hochman failed to retrieve them or pay for their moving and storage.   The auction proceeds did not cover the claimed cost of moving and storage.   In the meanwhile, the plaintiff had served an execution of judgment on the City so as to secure auction proceeds which would satisfy his judgment.   As the auction proceeds did not cover the moving and storage fees, no funds were turned over to the plaintiff.

The plaintiff brought this interpleader action against the City, Fitts and Hochman so the court could determine the competing claims to the auction proceeds.¹  He amended his complaint to also allege common-law and statutory negligence against the City.² Defendant Fitts filed a cross claim against the City for payment of the outstanding balance due for the moving and storage.   The City of Bridgeport denied all allegations and asserted a special defense of governmental immunity to the plaintiff's negligence claims.³

The case was tried to the court on October 21, 2010.   Post-trial briefs were submitted by the plaintiff, Fitts and Bridgeport on January 14, 2011.   A reply brief was filed by the plaintiff on February 8, 2011.   The court has reviewed the evidence submitted, the briefs of the parties and the applicable law.

For the reasons set forth below, the plaintiff is not entitled to any relief in the interpleader action and judgment will enter in favor of the City on the remainder of the plaintiff's complaint.

Facts

On September 14, 2005, Marshal Verrico, armed with an execution of judgment of possession began the eviction of Aaron Hochman.   Hochman had resided at property owned by the plaintiff which was located at 124 Old Battery Road, Bridgeport, Connecticut.   The residence at the location is known as “The Chimneys” and is perhaps the largest home in Bridgeport.   The plaintiff hired Fitts to assist the Marshal with the removal of items from the home.   The City then made arrangements to hire Fitts to remove the items to storage.   This transition allowed for the eviction and storage to be accomplished more efficiently.   That is, the items would not be piled at the curb and thereafter removed by the City. The items could be moved directly to moving trucks and taken to storage.⁴  The plaintiff paid Fitts for his work in the eviction.

This was no ordinary eviction however.   The mansion was so full of personal property, that it would ultimately take fifteen to twenty-four workers five days to complete the removal process.   The invoice for the services reflect 554 man hours of labor.   During those five days, twenty-three truckloads of property were removed and placed in various storage locations.   The vehicles, a 1977 Rolls Royce and at least three Mercedes Benz in need of restorative work, were stored in Stamford.   A piano was stored in Stamford.   The remaining and vast majority of the items were stored in numerous storage bins in Fairfield.   The items included an array of mens' and womens' clothing of various sizes;  tens of thousands of books;  fur coats;  art work;  furniture of every variety;  hundreds of pairs of shoes and other household items.   Also removed were two safes which were determined to contain a plethora of firearms and weaponry, some legal and others not clearly so.   The firearms which could be legally resold were eventually consigned to a licensed seller of firearms in Westport.   The others remain in the custody of the Bureau of Alcohol Tobacco and Firearms pending documentation or determination as to whether they can be resold.

At the time of the eviction, Hochman was represented by Attorney Willinger.   Discussions between Attorney Willinger and the City Attorney's Office were immediate and ongoing.   For example, Hochman expressed a concern about the security of his belongings during the eviction process.   The City agreed to hire off-duty police officers to guard the premises at night.   Hochman agreed to and ultimately paid the bill for this security.   Discussions with the City also ensued regarding Hochman's retrieval of his belongings and his payment of the moving and storage bill.   These discussion continued for months, never reaching a satisfactory conclusion.   The City attorney understood that Hochman was attempting to refinance one or more of his owned properties.   The City attorney also understood that Hochman owned four properties in Bridgeport and was current on his taxes and common charges for all of them.

Additionally, the City had hired expert appraisers to assist and had received some estimates as to the value of the items in storage in the event that an auction was held.   The City attorney believed the items were worth $900,000.   The property itself also gave evidence of its worth.   For example, Ken Fitts testified that there were armchairs that bore price tags of $90,000 and Attorney Liskov testified that there were fur coats perhaps worth thousands of dollars based upon their price tags.   Meanwhile, the bills from Fitts were growing and going unpaid.   The initial moving bill alone was in excess of $50,000.   The storage fees were approximately $16,100.00 per month.   Occasionally, additional costs were incurred, for example when the safes needed to be relocated and opened.   There was no evidence that any of these fees and expenses were unreasonable or above market price.

As the bills went unpaid, Fitts began invoicing for late fees or finance charges.   All inclusive, Fitts invoiced and claimed approximately $60,000 in late fees or finance charges.⁵  Insofar as Fitts did not have a written agreement or contract with the City, and the verbal discussion by which he was hired did not include any discussion of such fees, the imposition of these charges was unilateral on Fitts' part.   At some point, the City objected to these charges.

In October 2005, following the lengthy and costly eviction, the plaintiff submitted a bill of costs to the housing court.   He was awarded a total of $29,818.15.   In November 2005, the plaintiff served the first of a series of executions on the City of Bridgeport so as to secure any sale proceeds to satisfy the judgment.   At that time, there were no such proceeds as no sales had occurred.   As the executions expired without being satisfied, the plaintiff was diligent about securing a new execution.   He also filed a judgment lien with the Secretary of State.   During discussion between the City and the plaintiff, the City advised the plaintiff that if the sale proceeds exceeded the City's costs, the remainder would go first to satisfy the execution of judgment and thereafter to Hochman.

Eventually, the costs were climbing and Hochman remained unable to pay for the retrieval of his personal property.   Fitts was growing increasingly irate at the mounting costs to himself.   The first of a number of auctions was held on October 18, 2006.   The largest auction took place at Sikorsky, in one of its terminals.   As funds were received, they were turned over by the City to Fitts.   The City did not keep the proceeds of the auctions.   Similarly, as firearms were sold and funds received from the gun dealer, those funds were sent to Fitts.   However, at present, the City holds $4,271.28 as the last remaining proceeds from the sale of the Hochman property.   In total, the auctions retrieved $222,076.06 of which $217,804.78 was paid to Fitts.   Fitts claims an outstanding balance of $166,326.35, of which approximately $60,000 are assessed finance charges.⁶

Procedural History

This action was commenced by writ, summons and complaint with a return date of March 25, 2008.   The complaint was brought as an interpleader action seeking a determination as to the right and entitlement of each party to the funds received by the City from the sale of Hochman's property.   On May 5, 2008, the plaintiff served discovery requests on the City. A motion for default was filed by the Plaintiff for non-compliance.   The court ordered compliance by September 1, 2008.   Thereafter, the plaintiff filed another motion for default and sanctions on March 12, 2009 as the discovery had not yet been provided.   The motion was granted by the court as to the “default only.”   In September 2009, the plaintiff filed a motion for Order of compliance and sanctions against the City for its ongoing refusal to provide discovery and its failure to appear at a deposition.   When that motion was scheduled for a hearing on October 13, 2009, the parties entered into an agreement, which was accepted by the court.   The agreement provided that the motion could go “off” and the City would provide the May 5, 2008 discovery responses within 30 days.   On January 7, 2010, the plaintiff filed a motion for order of compliance and sanctions as the discovery had not yet been provided.   By Order dated February 2, 2010, the court gave the City until March 1, 2010 to “provide compliance with the interrogatories dated May 5, 2008.”   The Order further provided that “[i]n the event of non- compliance with this order, the plaintiff shall be entitled to a default upon a motion for default being filed with the court.”   No further motions were filed on the issue, nor has there been any claim raised that the City did not comply with this Order.   Thereafter, on July 6, 2010, the plaintiff filed an Amended Complaint in which he re-alleges the interpleader claim in count one but adds the negligence and breach of fiduciary duty claims in counts two through four.   To this Amended Complaint, the City and the other defendants filed answers and special defenses.

The preceding dissection of the procedural history of this case was necessary as the plaintiff has taken the position that the City is in default and cannot therefore contest the substance of the allegations giving rise to the interpleader action.   The City believes the default was “cured.” ⁷  While the file contains what may appear to be inconsistent rulings, it is clear that the February 2, 2010 ruling permitted the City to “cure” the default if compliance with the May 5, 2008 discovery was completed on or before March 1, 2010.   The plaintiff's motion clearly states that the previous default had entered so the court was aware of it.   Moreover, defaults entered for failure to meet discovery obligations are routinely set aside upon compliance.   Indeed, following the default, in March of 2009, the parties continued to litigate the discovery issues and the substantive allegations as if no default had entered.   Further, the plaintiff did not file any objection to the court's order of February 2, 2010, the clear import of which was that compliance by the City on or before March 1, 2010, would keep the case moving forward without a default.   While it would be cleaner for the City to have filed a motion to set aside the default of March 2009 in light of its compliance, such became unnecessary and superfluous upon the entry of the February 2, 2010 Order.

Discussion

The Court will first consider the negligence claims against the City.

A. Negligence (Counts two and three)

Count two of the plaintiff's complaint alleges common-law negligence in the City's failure to conduct the auctions in a more expeditious fashion, thus depleting the funds available to satisfy the plaintiff's execution of judgment.   Count three alleges negligence per se for the City's violation of Conn. Gen.Stat. § 47a–42.   The City denies it was negligent under either theory;  denies it owed any duty to the plaintiff, statutory or common law, and further claims it is shielded from liability by the doctrine of governmental immunity.

In the first instance, this court agrees that the doctrine of governmental immunity applies here.   Generally, a municipality or its employees “shall be liable for damages to person or property caused by:  (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties.”  CGS § 52–577n(a).   However, our common law as well as our statutes confer immunity for those acts deemed governmental or discretionary, as opposed to acts which are deemed ministerial.  Violano v. Fernandez, 280 Conn. 310, 320 (2006).   Specifically, CGS § 52–557n(a)(2)(B) provides that municipalities and their employees will not be liable for damages caused by ‘negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law.’

Our Supreme Court has “discussed extensively the difference between a ministerial and a discretionary act.  ‘A municipality is immune from liability for the performance of governmental acts as distinguished from ministerial acts.   Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature ․ On the other hand, ministerial acts are performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action.’  (Internal citations omitted).”  Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 167–68 (1988).

“The hallmark of a discretionary act is that it requires the exercise of judgment ․ In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion.”  Bonington v. Westport, 297 Conn. 297, 307–08 (2010).   See e.g. Martel v. Metropolitan District Commission, 275 Conn. 38, 48–49 (2005) (whether and how to maintain wooded trails was discretionary);  Segreto v. Bristol, 71 Conn.App. 844 (2002) (city's design and maintenance of a stairwell was discretionary in nature);  Lingos v. Town of Clinton, Judicial District of Middlesex at Middletown, Dkt. No. CV 04104139 (October 11, 2005) (Silbert, J.) (Connecticut courts have oft held that the manner in which an employee is investigated is a discretionary function);  Morse v. Norwich, Judicial District of New London, Dkt. No. CV 09–6001313 (December 20, 2010) (Cosgrove, J.)(The manner by which a dog pound was operated or how its personnel and animal clients were supervised was a discretionary governmental function);  Gervais v. West Hartford Board of Education, 17 Conn. L. Rptr. 383, 385 (July 25, 1996, Lavine, J.) (“Considerations of who to hire, how to train such people, and how to supervise employees are decisions requiring the use of judgment and discretion”).

Here, the alleged negligence was committed by the chief executive and employees of the City Attorney's Office.   The chief executive was involved in the decision as to when to conduct the auction as was the City Attorney's Office which was otherwise charged with carrying out the City's statutory obligations triggered by the eviction of Hochman.

Conn. Gen.Stat. § 47a–42 provides:

(c) Whenever the possessions and personal effects of a defendant are set out on the sidewalk, street or highway, and are not immediately removed by the defendant, the chief executive officer of the town shall remove and store the same.   Such removal and storage shall be at the expense of the defendant.   If such possessions and effects are not called for by the defendant and the expense of such removal and storage is not paid to the chief executive officer within fifteen days after such eviction, the chief executive officer shall sell the same at public auction, after using reasonable efforts to locate and notify the defendant of such sale and after posting notice of such sale for one week on the public signpost nearest to the place where the eviction was made, if any, or at some exterior place near the office of the town clerk.   The chief executive officer shall deliver to the defendant the net proceeds of such sale, if any, after deducting a reasonable charge for removal and storage of such possessions and effects.   If the defendant does not demand the net proceeds within thirty days after such sale, the chief executive officer shall turn over the net proceeds of the sale to the town treasury.

Certainly, aspects of these statutory obligations are purely ministerial—the location at which notice of the auction must be posted or the time frame within which the tenant must be given an opportunity to recover his property.   Governmental immunity would not shield the municipality from liability for the negligent completion of these ministerial duties.   See, D'Angelo v. Meriden, Superior Court, judicial district of New Haven, at Meriden, Dkt. No. CV 890234022 (April 28, 1993, Dorsey, J.) (Tenant sued the city when her property was sold prior to the expiration of the reclaim period and the City could not rely on governmental immunity as the duty to not sell until that period expired was ministerial in nature).   Beyond that however, the manner and means by which the auction is held, the location and (beyond the 15–day reclaim period) the timing of the auction are discretionary.

Attorney Liskov testified that he has been involved in thousands of evictions and that it is common to afford tenants more time to retrieve their property if they cannot do so within the 15–day statutory window.   His priority is to work with the tenant to get the property returned to the tenants while protecting the City's financial interest.   Similarly, Ken Fitts testified that he has picked up and stored personal property as a result of evictions on numerous occasions for different municipalities.   In his experience, he has stored the items for a variety of time periods, sometimes for as long as two and a half years.   Attorney Liskov testified that there were any number of items that needed to be addressed and decided.   Each was clearly within his or the chief executive's authority and discretion.   There was no evidence of policy or procedure manuals which dictated a particular course of action by the City. There was no evidence of City ordinance or statute which prescribe the manner and means by which an auction must be held, nor any mandate that it be had within a prescribed time period following the initial 15–day reclaim period.⁸  The court can think of few positions vested with greater discretion than that of the City attorney.   That he is charged with overseeing the City's compliance with CGS § 47a–42 is compelling evidence that the manner by which the City does so includes a multitude of discretionary decisions and actions.

Having determined that the municipal employees were engaged in discretionary acts, the plaintiff's claims must fail unless he establishes that an exception to governmental immunity applies.

The immunity from liability for the performance of discretionary acts by a municipal employee is subject to three exceptions or circumstances under which liability may attach even though the act was discretionary:  first, where the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm ․ second, where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws ․ and third, where the alleged acts involve malice, wantonness or intent to injure, rather than negligence.

Evon v. Andrews, 211 Conn. 501, 505 (1989) (citations omitted).   The plaintiff avers that the “imminent harm” exception applies in this case.

The imminent harm exception, applies when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm ․ By its own terms, this test requires three things:  (1) an imminent harm;  (2) an identifiable victim;  and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm ․ If the plaintiff's fail to establish any one of the three prongs, this failure will be fatal to their claim that they come within the imminent harm exception.

Benedict v. Norfolk, 296 Conn. 518, 519, n.1 (2010).   See also, Violano v. Fernandez, 280 Conn. 310, 329 (2006).   These requirements are to be “analyzed conjunctively.”  Doe v. Petersen, 279 Conn. 607, 620 (2006).   “Demonstration of less than all of these criteria is insufficient.”  Id.

Imminent harm is “harm ready to take place within the immediate future.”   Tryon v. North Branford, 58 Conn.App. 702, 712, 755 A.2d 317 (2000).   “Imminent is defined as something about to materialize of a dangerous nature ․ Imminent harm excludes risks which might occur, if at all, at some unspecified time in the future ․ In order to meet the imminent harm prong of this exception ․ the risk must be temporary and of short duration ․ Such conditions that have been identified as imminent include ice on school grounds, tripping a student in the hallway, and the immediate opening of a door.” ․

Cady v. Tolland, Superior Court, judicial district of Tolland, Docket No. CV 05 5000054 (November 30, 2006) (Peck, J.) (citations omitted).   This is a narrowly drawn exception to qualified governmental immunity.  Grady v. Somers, 294 Conn. 324, 350–51 (2009).

Within these parameters, the court finds that the imminent harm exception does not apply here.⁹  The imminent harm alleged is purely economic in nature, the dissipation of funds to satisfy the judgment.   Such a harm is not “of a dangerous nature,” and is not a type of injury that can be described as “about to materialize.”   Indeed, it is the very type of harm excluded from this exception because it “might occur, if at all, at some unspecified time in the future.”   Had, as expected, the auction proceeds covered the costs and the lien, no harm would have occurred at all.   Moreover, the plaintiff is still able to collect on his judgment through other means available at law.   Thus, the “harm” to him is not the devaluation of his judgment, but the ability to satisfy the judgment sooner, rather than later.   Insofar as the judgment remains extant, the plaintiff might yet collect upon it and so suffer no harm at all as a result of the City's conduct, save for the time value of the funds eventually recovered.

Further, even if the plaintiff's purported economic harm could be considered “imminent harm” it would not have been apparent to attorney Liskov that failure to hold the auction sooner would have resulted in harm to the plaintiff.   Attorney Liskov testified that he thought the items were worth $900,000.   Although the storage charges were growing by thousands of dollars on a monthly basis, it was still believed that the auction would cover those costs.

The acts alleged in counts two and three, common-law and statutory negligence, are protected by governmental immunity.¹⁰

B. Interpleader

Through count one, the plaintiff seeks a determination as to the rights of Hochman, the City, Fitts and himself to the funds held by the City as well as those previously received and forwarded to Fitts.   He notes first that there is no question that the City is entitled to be reimbursed for reasonable moving and storage costs.   However, he argues that the delay in holding the auctions resulted in costs that were not reasonable and that costs incurred beyond January 2006, should not have been paid out of the auction proceeds, but turned over to the plaintiff and Hochman.   In short, he argues that the city should bear the costs incurred as a result of the delay.   As such, he avers, the res to which he makes claim is all monies received over and above approximately $108,000.00.¹¹

General Statutes § 52–484 provides:

“Whenever any person has, or is alleged to have, any money or other property in his possession which is claimed by two or more persons, either he, or any of the persons claiming the same, may bring a complaint in equity, in the nature of a bill of interpleader, to any court which by law has equitable jurisdiction of the parties and amount in controversy, making all persons parties who claim to be entitled to or interested in such money or other property.   Such court shall hear and determine all questions which may arise in the case, may tax costs at its discretion and, under the rules applicable to an action of interpleader, may allow to one or more of the parties a reasonable sum or sums for counsel fees and disbursements, payable out of such fund or property;  but no such allowance shall be made unless it has been claimed by the party in his complaint or answer.”

“The purpose of an interpleader action is to bring all adverse claimants together in a single action for an adjudication of all matters in controversy related to a particular fund to which the adverse claimants seek entitlement.”  Millman v. Paige, 55 Conn.App. 238, 241 (1999), citing 2 E. Stephenson, Connecticut Civil Procedure (2d Ed.1970) § 263, p. 1088.  “The historical and still the primary purpose of interpleader is to enable a neutral stakeholder ․ to shield itself from liability for paying over the stake to the wrong party.”  (Internal quotation marks omitted.)  Guilford v. Cristini, 45 Conn.Sup. 235, 236 (1997).  “The basis for an action of interpleader is the existence of conflicting claims to property in the hands of the stakeholder.   In the absence of evidence of conflicting claims, no basis for an interpleader action exists.”  Commercial Discount Co. v. Plainfield, 120 Conn. 274, 278–79 (1935).

Here, there is no dispute that the auction proceeds were inadequate to cover the costs of moving and storage as billed.   This is so even when the disputed finance charges are subtracted from the amount claimed as still due and owing.   There was no evidence presented that the charges for the move or the monthly storage were unreasonable, above-market or otherwise inappropriate.   Thus, unless the delay in holding the auctions—which contributed to the amount of the storage fees incurred—was unreasonable such that those costs should be paid by the City, there is no “res” or fund to which the plaintiff has any entitlement.   In other words, the entirety of the plaintiff's claim rests upon a determination by this court that the City acted unreasonably or in violation of the statute in failing to conduct the auctions in a more timely fashion.   Therefore, if the plaintiff fails in his negligence claims against the city, the interpleader claim must fail as well.   See, Gold v. Rowland, 296 Conn. 186 (2010) (success of interpleader claim was dependent upon the success of at least one of the substantive claims which had also been brought).

As to the Interpleader, in light of the court's determination in Part A, supra., that the City did not act unreasonably or in violation of the statute, the plaintiff is not entitled to any portion of the auction proceeds, either those already paid, or those still held by the City. As to the City and Fitts, those issues were resolved by way of a tentative agreement, subject to this court's determination of the plaintiff's claim.¹²  Counsel are directed to implement that agreement under whatever procedural posture they deem appropriate, whether by stipulated judgment, withdrawal of claims or other.

As to the remainder of the plaintiff's complaint, judgment will enter in favor of the defendant City of Bridgeport.

So Ordered

FOOTNOTES

FN1. Hochman is non-appearing..  FN1. Hochman is non-appearing.

FN2. The fourth count of the amended complaint dated July 6, 2010 avers a cause of action for breach of fiduciary duty.   However the plaintiff does not brief nor argue this cause of action and the court considers it abandoned..  FN2. The fourth count of the amended complaint dated July 6, 2010 avers a cause of action for breach of fiduciary duty.   However the plaintiff does not brief nor argue this cause of action and the court considers it abandoned.

FN3. At the commencement of trial, the City indicated that it intended to proceed on a statute of limitations special defense and indicated an intention to file an amended answer and special defense which would identify the correct statute of limitations on which the City was relying.   The amendment was filed but the City does not argue in its trial brief the statute of limitations.   This defense is considered abandoned..  FN3. At the commencement of trial, the City indicated that it intended to proceed on a statute of limitations special defense and indicated an intention to file an amended answer and special defense which would identify the correct statute of limitations on which the City was relying.   The amendment was filed but the City does not argue in its trial brief the statute of limitations.   This defense is considered abandoned.

FN4. The governing statute, CGS § 47a–42, has since been amended to permit removal directly to storage in lieu of placing the property at the sidewalk..  FN4. The governing statute, CGS § 47a–42, has since been amended to permit removal directly to storage in lieu of placing the property at the sidewalk.

FN5. This number was calculated by adding up the finance charge invoices listed on Plaintiff's Exhibit 2..  FN5. This number was calculated by adding up the finance charge invoices listed on Plaintiff's Exhibit 2.

FN6. At trial, no witness testified to these amounts.   Attorney Higgins testified that he believed that Attorney Howlett of the City Attorney's Office told him that the proceeds from the auction were approximately $270,000.00.   However, Ken Fitts and Attorney Liskov each testified that Exhibit 2 reflected all proceeds received from auction and paid to Fitts.   The court added the figures identified as “payments” to reach the figures included herein.   It appears that the plaintiff's assertion, in his brief, that the proceeds were $270,000 is incorrect.   The difference however is inconsequential..  FN6. At trial, no witness testified to these amounts.   Attorney Higgins testified that he believed that Attorney Howlett of the City Attorney's Office told him that the proceeds from the auction were approximately $270,000.00.   However, Ken Fitts and Attorney Liskov each testified that Exhibit 2 reflected all proceeds received from auction and paid to Fitts.   The court added the figures identified as “payments” to reach the figures included herein.   It appears that the plaintiff's assertion, in his brief, that the proceeds were $270,000 is incorrect.   The difference however is inconsequential.

FN7. This court indicated during trial that it would examine the court file to determine whether the City was in default..  FN7. This court indicated during trial that it would examine the court file to determine whether the City was in default.

FN8. In addressing the immunity defense, the plaintiff asserts that beyond the 15–day period, the city becomes obligated to conduct the auction immediately and that this mandate converts the duty to a ministerial one.   He cites no authority and this court has found no authority for such a proposition.   Indeed, it is clear (and the plaintiff elsewhere concedes) that the tenant can be given additional time to reclaim his property.   The extension of additional time to do so rests within the discretion and judgment of the City..  FN8. In addressing the immunity defense, the plaintiff asserts that beyond the 15–day period, the city becomes obligated to conduct the auction immediately and that this mandate converts the duty to a ministerial one.   He cites no authority and this court has found no authority for such a proposition.   Indeed, it is clear (and the plaintiff elsewhere concedes) that the tenant can be given additional time to reclaim his property.   The extension of additional time to do so rests within the discretion and judgment of the City.

FN9. Notably, the court has not located any case in which the “harm” found to be imminent was something other than actual physical threat of injury.   Plaintiff cites no case in which the “imminent harm” was economic harm as is alleged in counts two and three.   Expanding the notion of “harm” to include such type of injury would substantially broaden an otherwise narrowly tailored exception..  FN9. Notably, the court has not located any case in which the “harm” found to be imminent was something other than actual physical threat of injury.   Plaintiff cites no case in which the “imminent harm” was economic harm as is alleged in counts two and three.   Expanding the notion of “harm” to include such type of injury would substantially broaden an otherwise narrowly tailored exception.

FN10. As to count two, the court also finds that the defendant was not negligent.   Under all of the circumstances, the City acted reasonably.   The City had always been able to take care of eviction property with city personnel, “two guys and a truck.”   This was a first in terms of hiring a moving and storage company.   Hochman was represented by counsel throughout the eviction and thereafter.   Hochman apprised the City of efforts he was undertaking to raise the funds necessary to satisfy the costs and retrieve his belongings.   The City kept Hochman apprised of the costs being incurred.   Hochman was current on all of his tax obligations to the City of Bridgeport.   Hochman had already paid $40,000 to keep his property secure.   The City reasonably believed Hochman was going to be able to redeem his property or alternatively that if he could not, the property was well more than adequate to cover the mounting costs.   The City kept counsel for the plaintiff apprised of the situation throughout.   Under these circumstances, the delay in holding the auctions was not unreasonable.   While the City also disputes that it had any duty to the plaintiff as averred in count two, the court does not reach that issue because it finds that City did not breach any duty it may have had.As to count three, the court also finds that the defendant did not violate its statutory obligations under CGS § 47a–42 as alleged.   There is no requirement in the statute that the auction be held within any set period of time.   The court further agrees with the City that the plaintiff cannot sustain a negligence per se action against the City on the basis of CGS § 47a–42.   In the first instance, the statute does not create a duty to the plaintiff.   The plaintiff must be within the class of persons for whose benefit and protection the statute in question was enacted such that the violation would constitute a breach of duty owed to the plaintiff.   See Gore v. People's Savings Bank, 235 Conn. 375–76;  Berchtold v. Maggi, 191 Conn. 266, 274–75 (1983);  Couglin v. Peters, 153 Conn. 99, 101–02 (1965).   Additionally, the injury alleged must be of the type that the statute was designed to protect against.  Id. Neither prong of a negligence per se action is satisfied here.   The plaintiff's assertion that the duty arises out of his status as a secured creditor is unavailing.   The statute was not designed to protect secured creditors of evicted tenants.   It was designed to protect the interests of evicted tenants in their personal property as well as the municipality which bears the obligation of removal and storage..  FN10. As to count two, the court also finds that the defendant was not negligent.   Under all of the circumstances, the City acted reasonably.   The City had always been able to take care of eviction property with city personnel, “two guys and a truck.”   This was a first in terms of hiring a moving and storage company.   Hochman was represented by counsel throughout the eviction and thereafter.   Hochman apprised the City of efforts he was undertaking to raise the funds necessary to satisfy the costs and retrieve his belongings.   The City kept Hochman apprised of the costs being incurred.   Hochman was current on all of his tax obligations to the City of Bridgeport.   Hochman had already paid $40,000 to keep his property secure.   The City reasonably believed Hochman was going to be able to redeem his property or alternatively that if he could not, the property was well more than adequate to cover the mounting costs.   The City kept counsel for the plaintiff apprised of the situation throughout.   Under these circumstances, the delay in holding the auctions was not unreasonable.   While the City also disputes that it had any duty to the plaintiff as averred in count two, the court does not reach that issue because it finds that City did not breach any duty it may have had.As to count three, the court also finds that the defendant did not violate its statutory obligations under CGS § 47a–42 as alleged.   There is no requirement in the statute that the auction be held within any set period of time.   The court further agrees with the City that the plaintiff cannot sustain a negligence per se action against the City on the basis of CGS § 47a–42.   In the first instance, the statute does not create a duty to the plaintiff.   The plaintiff must be within the class of persons for whose benefit and protection the statute in question was enacted such that the violation would constitute a breach of duty owed to the plaintiff.   See Gore v. People's Savings Bank, 235 Conn. 375–76;  Berchtold v. Maggi, 191 Conn. 266, 274–75 (1983);  Couglin v. Peters, 153 Conn. 99, 101–02 (1965).   Additionally, the injury alleged must be of the type that the statute was designed to protect against.  Id. Neither prong of a negligence per se action is satisfied here.   The plaintiff's assertion that the duty arises out of his status as a secured creditor is unavailing.   The statute was not designed to protect secured creditors of evicted tenants.   It was designed to protect the interests of evicted tenants in their personal property as well as the municipality which bears the obligation of removal and storage.

FN11. The storage fees incurred as of January 2006 were approximately $108,000.   The auctions netted in excess of $220,000.00.   Thus, he argues, the City should be deemed to have a fund comprised of the difference between the two figures..  FN11. The storage fees incurred as of January 2006 were approximately $108,000.   The auctions netted in excess of $220,000.00.   Thus, he argues, the City should be deemed to have a fund comprised of the difference between the two figures.

FN12. Fitts did not pursue its cross claim against Hochman or request any relief in connection therewith.   The court considers the claim abandoned..  FN12. Fitts did not pursue its cross claim against Hochman or request any relief in connection therewith.   The court considers the claim abandoned.

Dooley, Kari A., J.