Carlos Diaz v. D'Amato Bros. Builders, Inc. (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT # 102

INTRODUCTION

The plaintiff, Carlos Diaz, filed this writ, summons and complaint on January 22, 2013 alleging that the defendant, D'Amato Bros. Builders, Inc., is the owner of property at Milford, Connecticut where he was injured as a result of the collapse of the roof.   The defendant, D'Amato Bros. Builders, Inc. filed this March 29, 2013 motion for summary judgment alleging that it does not own, control, or maintain the building which is the site where the plaintiff was injured and that the plaintiff has named and served the wrong entity.   The plaintiff has objected to the motion for summary judgment by memorandum dated May 29, 2013.   The court heard argument on November 4, 2013.

FACTUAL BACKGROUND

On February 2, 2011, the plaintiff Carlos Diaz was a worker in a building located at 282 Woodmont Road, Milford, Connecticut.   On this date, the plaintiff alleges that the roof of the building collapsed and caused him to suffer a number of injuries.   By way of complaint and summons dated December 28, 2012, the plaintiff brought an action against D'Amato Brothers Builders Milford, LLC. After service of the complaint, the plaintiffs' attorneys received a telephone call from Cynthia Metzger, an insurance adjuster, to notify them that the D'Amato Brothers Builders Milford, LLC was not the owner.   Ms. Metzger informed counsel for the defendant that the proper entity is D'Amato Brothers Builders, Inc. (Plaintiff's Exhibit C and D.) As a result of this information the plaintiff filed and served a new complaint naming as defendant D'Amato Brothers Builders, Inc. The plaintiffs served the complaint to 183 Quarry Road, Milford, Connecticut.   This was the same address as service for the prior defendant D'Amato Brothers Builders Milford, LLC. (Plaintiff's Exhibit E and F.) After service of the existing complaint, the defendant filed a motion for summary judgment arguing that the owner is not the defendant D'Amato Brothers Builders, Inc. but it is D'Amato Investments, LLC. The plaintiff subsequently discovered that there are ten separate businesses with various forms of description of D'Amato registered with the Secretary of State.   Each of the ten businesses have the same address and list Louis D'Amato as a President or member.

DISCUSSION

“Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and 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.)  Provencher v. Enfield, 284 Conn. 772, 790–91, 936 A.2d 625 (2007).

“In ruling on a motion for summary judgment the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist.”  Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).  “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.”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

“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.”  (Internal quotation marks omitted.)  Id., 11.

In the instant action, the defendant submitted to the court an affidavit from Louis D'Amato that the corporation known as D'Amato Brothers Builders, Inc. is not the owner of the property.   The plaintiffs submitted two affidavits that the attorneys for the plaintiff were provided with the information that the proper owner of the property is D'Amato Brothers Builders, Inc. Although a member or president of each of the businesses now recognized in this action, the defendant did not attempt to correct the wrong information provided to the plaintiff until after the two-year statute of limitations had passed.   Although the service was made to the same address and the same individual on two separate occasions the defendant now contends that judgment should be entered because the plaintiff has named the wrong D'Amato business as the owner of the property.   Of particular interest is that each of the ten companies include the sane names of individuals as the president or member registered with the state.   It was also noted that although the defendants contend there is a distinction (one which was not recognized by its own insurance adjuster) in the businesses, each uses the same mailing and business address of 182 Quarry Road, Milford Connecticut.   Each complaint was served to the same location and would be provided to the same individual.   The defendant contends that although this is true, technically the plaintiff has named the wrong defendant.

The plaintiff argues that the defendant's motion must be denied because of the circumstances surrounding the identification of the owner of the property.   The plaintiff relies upon Maulucci v. St. Francis Hospital & Medical Center Foundation, Inc., Superior Court, judicial district of Hartford/New Britain, Docket No. 510685 (May 15, 1996, Blue, J.) (1996 Conn.Super. LEXIS 1232) [17 Conn. L. Rptr. 136].   The facts and the posture of the Maulucci case differ from the instant action.   However, this case addresses some of the same arguments as to the fact that the right defendant had notice.   The facts in this action that show the same address and the same individuals involved in some capacity with the ten corporate entities would support a finding similar to the Maulucci, that is, no matter which of the ten corporate entities is the proper owner, there is notice.   However, this action has another issue which is relevant to the present motion.   There are contrary affidavits as to the owner of the property.   No party has provided the court with admissible documents for the motion other than the conflicting affidavits as to the ownership of the property.   The defendant argued that the plaintiff could easily have discovered the owner or responsible party by a search of land records or tax records.   Counsel indicated that he did such a search and reached a result.   However, the motion does not include certified records or sworn affidavits from the appropriate official that confirms the ownership.   Given the documents before the court and the numerous corporate entities with a similar name there is a genuine issue of material fact as to which company owned, maintained or controlled the property at 282 Woodmont Road. Although the defendant has argued the owner is D'Amato Investment, LLC. without proper documentation and based upon the past representations identifying another owner there is a genuine issue of material fact which precludes summary judgment.

The plaintiff has also represented that if the property owner is different than the defendant now named, he will be substituting such property owner.   This action would be consistent with the court action in Maulucci which reviewed the Andover three factors to determine if the error in choosing the party was a circumstantial defect.  Maulucci v. St. Francis Hospital & Medical Center Foundation, Inc., supra at 3, Andover Limited Partnership I v. Board of Tax Review, 232 Conn. 392, 396–97, 655 A.2d 759 (1995) Thus, the factors of “(1) whether the proper defendant had actual notice of the institution of the action;  (2) whether the proper defendant knew or should have known that it was the defendant in the action;  and (3) whether the proper defendant was in any way misled to its prejudice,” are supportive of the plaintiff's position and the plaintiff's argument that, if action is required, it would be a substitution.

The motion for summary judgment is denied.

THE COURT

Brazzel–Massaro, J.

Brazzel–Massaro, Barbara, J.