Sandra Koozmitch v. South Kendall Properties, Inc. (2011)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (No. 136)

At issue is whether the court should grant the defendants' second motion for summary judgment, directed at counts three and four of the plaintiff's amended complaint.   For the reasons stated herein, the court denies the defendants' motion.

A summary of the procedural history of this case is necessary for the disposition of this motion.   The plaintiff initially filed a two-count complaint sounding in negligence against the defendants on November 16, 2007.   The defendants filed a motion for summary judgment directed at the entire complaint on May 11, 2009.   On November 24, 2009, the plaintiff filed a request to amend and an amended complaint.   The amended complaint added two additional counts alleging spoliation of evidence claims against the two defendants.   Oral argument concerning the defendants' motion for summary judgment was heard before Judge Martin on November 30, 2009.   Because the defendants did not file a timely objection to the plaintiff's request to amend her complaint, the complaint that included the spoliation of evidence claims was deemed the operative complaint by Judge Martin, pursuant to Practice Book § 10–60(a)(3), when he decided the defendants' motion for summary judgment.   Pursuant to Practice Book § 10–61, Judge Martin applied the defendants' motion for summary judgment to the plaintiff's amended complaint.   Accordingly, Judge Martin addressed the spoliation of evidence claims, counts three and four of the amended complaint, in his memorandum of decision dated February 25, 2010 and expressly denied summary judgment with respect to those counts.

Rather than objecting to the plaintiff's request to amend her complaint or amending their motion for summary judgment to address the spoliation of evidence claims or filing a motion to reconsider Judge Martin's decision, the defendants have instead filed a second motion for summary judgment on January 24, 2011, eleven months after summary judgment was initially denied.   The plaintiff filed her request to amend the complaint before the summary judgment motion was heard at Judge Martin's short calendar.   Thus, the defendants had both notice and opportunity either to object to the plaintiff's request or to amend their motion for summary judgment to address the added claims.   Furthermore, the defendants had ample opportunity to request that Judge Martin reconsider his decision in a timely manner.   Filing a second motion for summary judgment almost one year after summary judgment was expressly denied with respect to the same counts is procedurally improper.   Judge Martin directly addressed the spoliation of evidence claims in his February 25, 2010 memorandum of decision.   As far as this court is concerned, Judge Martin's decision is conclusive on this matter.   Therefore, the defendants' motion for summary judgment is denied.

Cosgrove, J.

Cosgrove, Emmet L., J.