Ramona Melchor, Executrix of the Estate of Joshua Melchor et al. v. LLC (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT NO. 210

This is a negligence action commenced by writ, summons and complaint with a return date of May 31, 2011.   The plaintiff, Ramona Melchor, in her individual capacity and as executrix of the estate of Joshua Melchor brought this action against the defendants, Peter Sandwell, Donna Klimowicz, Family Care Visiting Nurse & Home Care Agency, LLC, and Bridges, A Community Support System, Inc., People's Home Health Care, Inc., and Pharmacy Express, for injuries and losses allegedly resulting in and from the death of her son, Joshua Melchor, on January 29, 2009.   On March 15, 2012, the plaintiff filed a third revised complaint, which serves as the operative complaint.   On or about May 3, 2013, the defendants, People's Home Health Care, Inc. (People's Home) and Pharmacy Express, moved for summary judgment.   In support of their motion, the defendants submitted as evidence (1) the second revised complaint and (2) the plaintiff's responses to the defendants' requests for admission, interrogatories and requests for production.   Notably, the plaintiff did not file an objection to the motion for summary judgment.   Eventually, the matter was heard at short calendar on June 10, 2013.

“Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)  Stewart v. Watertown, 303 Conn. 699, 709–10, 38 A.3d 72 (2012).  “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 ․ 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, 11, 938 A.2d 576 (2008).

“Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner.”  (Internal quotation marks omitted.)  Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984).   Nevertheless, “[t]he issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law.”  (Internal quotation marks omitted.)  Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003).  “The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand.”  (Internal quotation marks omitted.)  Neuhaus v. DeCholnoky, 280 Conn. 190, 217, 905 A.2d 1135 (2006).

In the present case, the defendants argue in support of their motion for summary judgment that the plaintiff has presented no evidence to demonstrate that the defendants were negligent.   Specifically, the defendants argue that the plaintiff has presented no documents or physical evidence to demonstrate that the defendants improperly filled any of the plaintiff's decedent's prescriptions with chlorpromazine, despite multiple requests by the defendants for such evidence.   The record is bereft of any evidence of negligence on the part of any defendant or causation with respect to the death complained about.   The only argument advanced by the plaintiff in response occurred at short calendar on June 10, 2013, at which time counsel for the plaintiff stated that she had not yet had time to complete depositions and, therefore, summary judgment is improper.   The plaintiff, herself, asked to proceed June 10, 2013 on the merits of the summary judgment motion vis a vis a motion for a protective order, No. 214, dated May 31, 2013, which motion the court, Nazzaro, J. granted.

Practice Book § 17–47 provides:  “Should it appear from the affidavits of a party opposing the motion that such party cannot, for reasons stated, present facts essential to justify opposition, the judicial authority may deny the motion for judgment or may order a continuance to permit affidavits to be obtained or discovery to be had or may make such other order as is just.”   Our Supreme Court in Peerless Ins. Co v. Gonzalez, 241 Conn. 476, 489, 697 A.2d 680 (1997), discussed the burden that Practice Book § 17–47 puts on a party opposing a summary judgment motion:  “A party opposing a summary judgment motion pursuant to [Practice Book § 17–47] on the ground that more time is needed to conduct discovery bears the burden of establishing a valid reason why the motion should be denied or its resolution postponed, including some indication as to what steps that party has taken to secure facts necessary to defeat the motion.”   Furthermore, under Practice Book § 17–47, “the opposing party must show by affidavit precisely what facts are within the exclusive knowledge of the moving party and what steps he has taken to attempt to acquire these facts.”  Dorazio v. M.B. Foster Electric Co., 157 Conn. 226, 230, 253 A.2d 22 (1968).

Our Supreme Court addressed an appeal from the granting of a motion for summary judgment analogous to the present case.   In Dorazio v. M.B. Foster Electric Co., supra, 157 Conn. 229, the plaintiff, without filing an affidavit or motion requesting a continuance, argued at oral argument on the motion for summary judgment that facts potentially relevant to material issues in the case were “within the exclusive knowledge of the defendants” and difficult to obtain and, therefore, the court should grant it a continuance.   Our Supreme Court rejected this argument, citing the relevant provision of our rules of practice, and determined that a party opposing a motion for summary judgment, but who is unable to present the necessary evidence or affidavits, must file an explanatory affidavit setting forth the reasons for his noncompliance.  Id., 229–30.   Ultimately, the court held that a “party cannot successfully oppose a motion for summary judgment by merely averring that the defendant has exclusive knowledge about certain facts or that affidavits based on personal knowledge are difficult to obtain.”  Id., 230.

Similarly, in Bank of America, N.A. v. Briarwood Connecticut, LLC, 135 Conn.App. 670, 676–77, 43 A.3d 215 (2012), the plaintiff filed a motion for summary judgment on June 29, 2010, and the matter was not argued at short calendar until October 18, 2010, at which time the defendant filed its affidavit requesting more time for discovery pursuant to Practice Book § 17–45.   The Appellate Court found that the trial court was “justified in its refusal to consider the late filed affidavit” because the defendant “knew that discovery was available to it without hindrance by the plaintiff,” yet still waited more than two months to file its affidavit in order to obtain a continuance.  Id., 677.

In the present case, the defendants filed their motion for summary judgment on May 3, 2013.   The matter originally was scheduled for argument at short calendar on June 3, 2013, pursuant to Practice Book § 17–45, but at the request of the plaintiff, the court, Nazzaro, J., marked the motion off and rescheduled argument for June 10, 2013.¹  The plaintiff had over thirty days in which to file an objection to the motion for summary judgment or an affidavit pursuant to Practice Book § 17–47 in order to obtain a continuance.   Despite this fact, even though the plaintiff claimed that she required more time for discovery in order to properly oppose the motion for summary judgment, and despite the fact that this court, Nazzaro, J., granted the plaintiff the relief requested in her motion for a protective order, the plaintiff nevertheless failed to file an affidavit pursuant to Practice Book § 17–47 or to file a memorandum in opposition to the defendants' motion for summary judgment.

Our rules of practice provide ample opportunities for a party to request an extension of time to conduct discovery or to respond to a motion for summary judgment.   See Practice Book §§ 17–45 and 17–47.   The plaintiff failed to formally respond to the summary judgment motion or to conduct discovery in a way so as to avoid delay and, furthermore, was granted additional time to respond to the defendants' motion.   The plaintiff admits the only evidence she marshals in support of her claim of negligence is that the defendants, in general speak, filled the plaintiff's decedent's prescriptions.   There is no countervailing affidavit or exhibits against which the court must weigh the defendants' evidence.   Indeed, there is no memorandum in support of objection to the motion for summary judgment.   Without proof of a breach of duty, the plaintiff falls short of establishing the existence of a question of fact with respect to the necessary elements to sustain an action which sounds in negligence.

CONCLUSION

For the foregoing reasons, the defendants' motion for summary judgment is granted.

By the Court,

Nazzaro, J.

FOOTNOTES

FN1. Practice Book § 17–45 provides in relevant part that a motion for summary judgment “shall be placed on the short calendar to be held not less than fifteen days following the filing of the motion and the supporting materials, unless the judicial authority otherwise directs.”.  FN1. Practice Book § 17–45 provides in relevant part that a motion for summary judgment “shall be placed on the short calendar to be held not less than fifteen days following the filing of the motion and the supporting materials, unless the judicial authority otherwise directs.”

Nazzaro, John J., J.