Melanie Santos et al. v. Zakei Barnes et al. (2013)

MEMORANDUM OF DECISION

This matter is before the court concerning defendants Jerry Cruz and Valentin Auto Sales, LLC (Valentin)'s motion for summary judgment (# 155).   The court heard oral argument concerning the motion on November 4, 2013.   After consideration, for the reasons stated below the motion for summary judgment is denied.

I

Background

The court summarizes the allegations set forth in the sixth count of the plaintiffs' complaint as they pertain to Cruz and Valentin.   The plaintiff Melanie Santos, individually and as administrator of the estate of Belarmino Santos, alleges that, on April 29, 2011, a 2007 Mercedes automobile (Mercedes) operated by defendant Zakei Barnes was wrong-way driving in a Southbound direction in the Northbound left lane of Connecticut Route 8 North, near Exit 22 in Seymour, Connecticut, when it collided with a 2006 Nissan Altima being driven by her husband, Belarmino Santos, who received multiple blunt traumatic injuries, causing his death.

In paragraph 13, the plaintiff alleges that the Mercedes had a Dealer's license plate, number DL646.   In paragraphs 23 and 24, the plaintiff alleges that Valentin is a business located in Waterbury, Connecticut, of which Cruz was the President.   In paragraph 25, she alleges, upon information and belief, that license plate DL646 was registered to Valentin or created by Valentin and was provided to defendants Alicia Riddick ¹ and/or Barnes by Cruz, acting individually and in his capacity as President of Valentin, for use on the Mercedes, for a fee.   She also alleges that pursuant to State of Connecticut Department of Motor Vehicle (DMV) licensing requirements, Valentin's dealer plate DL646 requires insurance coverage or surety, and, as a result of providing it for use, Valentin and Cruz overtly or implied insurance coverage for the Mercedes and any damages resulting from the use.   See complaint, sixth count, ¶¶ 26–27.

In their motion, Valentin and Cruz contend the license plate in question was not registered to, created by or provided by Cruz or Valentin.   In support of their motion, Cruz and Valentin presented memoranda of law, Cruz's affidavit, and exhibits.

In response, the plaintiff filed an objection and exhibits.   The plaintiff argues that issues of fact are present which preclude summary judgment.   Additional references to the factual background are set forth below.

II

Standard of Review

“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 ․ The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.”  (Internal quotation marks omitted.)  Rodriguez v. Testa, 296 Conn. 1, 6–7, 993 A.2d 955 (2010).

“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.)  Bonington v. Westport, 297 Conn. 297, 305, 999 A.2d 700 (2010).

“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.”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).

III

Discussion

Valentin and Cruz argue that they did not create or provide dealer plate DL646.   In particular, they rely on Cruz's affidavit to support those assertions.

They also cite various investigation reports and other documents concerning investigation into DL646.   See defendants' Exhibits B, C, D, E, F, and G, submitted in support of motion.²  According to Exhibit D, a message from the Dealers and Repairers Division of DMV, DL646 was never issued.   In Exhibit F, a report by the State of Connecticut Department of Public Safety (DPS), the investigator found that Valentin had seven assigned dealer plates, none of which was DL646.   The investigator stated that he believed that DMV records “may be complete, but there is no way to be certain they are accurate.   It is unknown who was assigned Connecticut Dealer Plate # DL646, but this Sergeant does not believe that it was Jerry CRUZ at Valentin Auto Sales.”

Similarly, the deposition testimony of Tony Ruggiero, central office supervisor for the Dealers and Repairers Division, reflects that DL646 was never issued by the DMV, see Deft. Reply Exhibit E (transcript), p. 19, and “should not be a valid plate.”   See Deft. Reply Exhibit E, p. 21.   The fact that DL646 was not issued by the DMV to Valentin or Cruz does not establish that the movants did not provide DL646 to Barnes or Riddick.   Those assertions by the movants are premised on Cruz's affidavit.

“Connecticut law provides that [s]ummary judgment should be denied where the affidavits of the moving party do not affirmatively show that there is no genuine issue of fact as to all of the relevant issues of the case.”  (Internal quotation marks omitted.)  Charlemagne v. Progressive Northwest Ins. Co., 63 Conn.App. 596, 601, 777 A.2d 741 (2001).  “It is not enough for the moving party merely to assert the absence of any disputed factual issue;  the moving party is required to bring forward ․ evidentiary facts, or substantial evidence outside the pleadings to show the absence of any material dispute.”   (Emphasis in original;  internal quotation marks omitted.)  Doty v. Shawmut Bank, 58 Conn.App. 427, 430, 755 A.2d 219 (2000).

“ ‘It is especially appropriate to hold an affidavit [or supporting documentation] submitted by a moving party to a stringent standard.’  Evans Products Co. v. Clinton Building Supply, Inc., 174 Conn. 512, 516, 391 A.2d 157 (1978).”  New Haven v. Pantani, 89 Conn.App. 675, 680, 874 A.2d 849 (2005).

Cruz's affidavit includes denials of the plaintiff's allegations and is contradicted by other evidence presented by the defendants.   In paragraph 9, Cruz avers that license plate DL646 was not created by him or Valentin.   In paragraphs 12 and 13, he avers that neither he nor Valentin provided Barnes or Riddick with a dealer license plate.

“These averments are little more than denials of the facts alleged in the plaintiffs' complaint.   Denials of the allegations in the complaint are an insufficient basis for the rendition of summary judgment.   See Plouffe v. New York, N.H. & H.R. Co., 160 Conn. 482, 488–89, 280 A.2d 359 (1971) ( ‘defendants' affidavits did not attempt to show that there was no genuine issue of fact arising from the contested common-law negligence and nuisance allegations').   Thus, the defendants have not met their burden of providing evidence to establish the absence of a material factual dispute.”   Gambardella v. Kaoud, 38 Conn.App. 355, 360, 660 A.2d 877 (1995).

In addition, Cruz's affidavit is undermined, since it is contradicted by other evidence presented by the defendants.   In paragraph 5, he avers that dealer license plate DC646 was issued by the DMV to Valentin.   Defendants' Exhibit E, an Investigation Report prepared by DPS, page 2 of 3, states that DC646 was “Not issued to any Dealers according to DMV records.”

In Exhibit F, another DPS Investigation Report, page 2 of 2, Cruz is reported to have shown an investigator a “form showing that his Lost or Stolen Dealer Plate # DH646 was replaced with Dealer Plate # DJ646.”   This contradicts both paragraphs 6 and 7 of the Cruz affidavit.   In paragraph 6, Cruz avers that license plate DH646 was stolen and replaced by license plate DI646.   In paragraph 7, he states that license plate DC646 was destroyed and replaced by DJ646.

At this stage of the proceedings, as movants seeking summary judgment, Cruz and Valentin have not met their burden to show clearly what the truth is, and to exclude any real doubt as to the existence of any genuine issue of material fact.   See Ramirez v. Health Net of the Northeast, Inc., supra, 285 Conn. 11.   The documents submitted in support of the motion for summary judgment do not establish that there is no genuine issue of material fact.   The movants have not shown that they are entitled to judgment as a matter of law.   The plaintiff had no obligation to submit documents establishing the existence of such an issue.

Under these circumstances, the court need not address other evidentiary issues raised by the parties, including as to requests for admissions, judicial admissions, adverse inferences, and admissibility of criminal convictions for the purpose of impeaching credibility.

CONCLUSION

For the reasons stated above, the motion for summary judgment is denied.   It is so ordered.

BY THE COURT

ROBERT B. SHAPIRO

JUDGE OF THE SUPERIOR COURT

FOOTNOTES

FN1. In the third count, paragraph 20, the plaintiff alleges that Riddick was the owner or co-owner of the Mercedes..  FN1. In the third count, paragraph 20, the plaintiff alleges that Riddick was the owner or co-owner of the Mercedes.

FN2. With their reply (# 162), the movants submitted additional exhibits, also referred to by letter.   The court refers thereto below by the designation “Deft. Reply Exhibit.”.  FN2. With their reply (# 162), the movants submitted additional exhibits, also referred to by letter.   The court refers thereto below by the designation “Deft. Reply Exhibit.”

Shapiro, Robert B., J.