Carl Giannettino v. Vince Scarpetti et al. (2011)

MEMORANDUM OF DECISION

On December 21, 2010, the defendants, Vince Scarpetti and Jessica Renkowsky, moved for summary judgment on the eighteen-count complaint brought by the plaintiffs, Carl Giannettino, Dakota Callahan and Acadia Callahan.   The plaintiffs brought three types of claims:  negligent infliction of emotional distress, intentional infliction of emotional distress and invasion of privacy.   On July 14, 2011, the court granted the motion for summary judgment with respect to the negligent infliction of emotional distress and invasion of privacy counts.   With respect to the six intentional infliction of emotional distress counts, the court treated the defendants' motion for summary judgment as a motion to strike.   The court then struck these counts.

On July 21, 2011, the defendants filed the present motion for reargument and reconsideration of this court's decision with respect to the intentional infliction of emotional distress counts.   The court granted the motion and held reargument on August 15, 2011.   The defendants argue that the court should have considered their argument that they are entitled to summary judgment on the intentional infliction of emotional distress counts because, as a matter of law, the plaintiffs cannot establish that the defendants' conduct was extreme and outrageous.

“[T]he purpose of a reargument is ․ to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts ․ [A] motion to reargue ․ is not to be used as an opportunity to have a second bite of the apple or to present additional cases or briefs which could have been presented at the time of the original argument.”  (Internal quotation marks omitted.)  Walgreen Eastern Co. v. Zoning Board of Appeals, 130 Conn.App. 422, 433 (2011).  “It also may be used to address ․ claims of law that the [movant] claimed were not addressed by the court.”  (Internal quotation marks omitted.)  Marquand v. Administrator, Unemployment Compensation Act, 124 Conn.App. 75, 80, 3 A.3d 172 (2010), cert. denied, 300 Conn. 923, 15 A.3d 630 (2011).

“ ‘[T]he use of a motion for summary judgment instead of a motion to strike [to challenge the legal sufficiency of a complaint] may be unfair to the nonmoving party because [t]he granting of a defendant's motion for summary judgment puts the plaintiff out of court ․ [while the] granting of a motion to strike allows the plaintiff to replead his or her case.’  (Internal quotation marks omitted.)  Larobina v. McDonald, 274 Conn. 394, 401, 876 A.2d 522 (2005).   Accordingly, ‘the use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading.’  Id. If, however, the nonmoving party argues that any purported defects could be cured by repleading, and the moving party fails to demonstrate that, if the nonmoving party were permitted to replead, the legal deficiency underlying the motion for summary judgment would not be cured, the trial court should treat the motion for summary judgment as a motion to strike, under which the nonmoving party would be ‘afforded the opportunity to replead upon the granting of the motion.’   American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 124–25, 971 A.2d 17 (2009).”   Giannettino v. Scarpetti, Superior Court, judicial district of New Haven, Docket No. CV 09 5030562 (July 14, 2011, Woods, J.).

In their motion for summary judgment, the defendants argued that, “[t]he plaintiffs fail to state a claim of intentional infliction of emotional distress because they do not allege sufficient facts to demonstrate that the defendants' conduct rise to the level of extreme and outrageous conduct.”   Contrary to the assertions on reargument, this was the only argument made by the defendants in their motion for summary judgment with respect to the plaintiffs' intentional infliction of emotional distress claims.   The court therefore properly treated the defendants' motion for summary judgment as a motion to strike.   The relief requested by the defendants in their motion for reargument is hereby denied.

Woods, J.

Woods, Glenn A., J.