Karen Delahunty v. Agnes Targonski et al. (2011)

MEMORANDUM OF DECISION

I.

Procedural History

The plaintiff in this matter Karen Delahunty has brought a civil action against Agnes and Krzysztof Targonski “Targonski.”   Briefly stated Delahunty alleges that Targonski unlawfully built a stone wall on her property.   The property in question is located in the town of Higganum Connecticut.   Thereafter Targonski brought a third-party action against their neighbors Kevin and Jennifer Gaffey “Gaffey.”   Targonski alleges that Gaffey constructed a berm which caused surface water to flow onto their property.   Targonski contends that the wall was built to deflect the water run-off.

Gaffey, the third-party defendants have moved the court through pleadings dated February 14, 2011, for summary judgment.   They contend that there are no genuine issues of material fact and they are entitled to judgment as a matter of law.   Targonski has filed a written objection to the motion.   The court heard oral argument on June 27, 2011.

II.

Discussion

Gaffey contends that they are entitled to judgment as a matter of law for the following reasons:  a) the allegations in the third-party complaint are not supported by the sworn deposition testimony;  b) there is no evidence in the record that the surface water from the Gaffey property changed in volume or flow, or that the water caused substantial damage to the Delahunty property;  c) the construction of the stone wall was not a reasonable response to surface water run-off;  d) Targonski is unaware of the fact that they have sued Gaffey:  e) the third-party action is barred by General Statute § 52–577;  a three-year statute of limitations.   In support of their claims, Gaffey has presented to the court sworn deposition testimony of the parties.

Targonski in their objection directed the court to other portions of the record.   They argue that there are genuine issues of material fact and as a matter of law the action is not barred by the statute of limitation.

“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.   The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ 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 under Practice Book § [17–45].”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

The court has reviewed the entire record and finds that there remain genuine issues of material fact in the present case.   These issues are presented in all of the five grounds articulated by the moving party as a basis for the present motion.   The court cannot decide these disputed factual issues in a motion for summary judgment.   Accordingly, the third-party defendant's motion is denied.

SO ORDERED.

BY THE COURT,

PETER EMMETT WIESE, JUDGE

Wiese, Peter E., J.