Jafar Nazmi v. Lena's First and Last Pizzeria, Inc. (2013)

MEMORANDUM OF DECISION ON MOTION TO STRIKE APPORTIONMENT COMPLAINT

This slip and fall case was directed against Dustin M. Lombardi, a musical performer on the premises at 2071 Park Street, and Lena's First and Last Pizza and Daryl Sullivan, tenants or owners.   On November 9, 2012, Lombardi filed a cross complaint seeking apportionment against Lena's and Sullivan under Gen.Stat. Sec. 52–572h.

The issue of whether a defendant may file an apportionment complaint against another defendant in an ongoing case has not been directly addressed at the appellate level.  General Statutes § 52–102b, which “operates only in conjunction with § 52–572h” and whose “primary application is to effectuate the right to apportion liability”;  Lostritto v. Community Action Agency of New Haven, 269 Conn. 10, 25, 848 A.2d 418 (2004);  states that “[a] defendant in any civil action to which section 52–572h applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable ․ for a proportionate share of the plaintiff's damages.”

In the case Viera v. Cohen, 283 Conn. 412, 927 A.2d 843 (2007), the Supreme Court stated in dicta that under the procedural scheme provided for by the legislature, the defendant could not file an apportionment complaint against another defendant while he was a party.  Id., 443.

While there is currently a Superior Court split on the matter, most courts have found that apportionment complaints may only be served to those who are not a party to the action.   Roklen v. Presnell, Superior Court, judicial district of New Haven, Docket No. CV–04–0287569–S (March 15, 2006, Taylor, J.) [40 Conn. L. Rptr. 883].   The court in Paparin v. Stew Leonards Danbury, LLC, Superior Court, judicial district of Hartford, Docket Number CV–12–6030059–S (July 25, 2012, Woods, J.) went into depth concerning the plain meaning of § 52–102b and its legislative history to determine that the statute precludes a party from filing an apportionment complaint against another party already involved in the action.   See also Barabas v. Michaels, Superior Court, judicial district of New Haven, Docket No. CV–11–6017514–S (July 21, 2011, Zoarski, J.T.R.) [52 Conn. L. Rptr. 574].   But see O & G Industries, Inc. v. Litchfield Ins. Group, Superior Court, judicial district of Litchfield, Docket No. CV–12–6006448–S (July 1, 2013, Pickard, J.);   Hilarion v. Yank, Superior Court, judicial district of Fairfield, Docket No. CV–10–6006792–S (September 9, 2011, Dooley, J.).

It is not necessary to consider cross claim defendants' argument that the cross claim plaintiff did not include a prayer for relief in his pleading since the claim as to respondeat superior is legally insufficient.

Motion to strike granted.

Wagner, J.

Wagner, Jerry, J.T.R.