Bassin v. City of Stamford, No. 10336

• Court: Appellate Court of Connecticut
• Writing for the Court: Before DUPONT; HEIMAN
• Citation: 26 Conn.App. 534,602 A.2d 1044
• Parties: Richard BASSIN v. CITY OF STAMFORD, et al.
• Decision Date: 04 February 1992
• Docket Number: No. 10336

Page 1044

602 A.2d 1044 26 Conn.App. 534 Richard BASSIN
v.
CITY OF STAMFORD, et al. No. 10336. Appellate Court of Connecticut. Argued Dec. 10, 1991.
Decided Feb. 4, 1992.

[26 Conn.App. 535] Nancy Aldrich, Westport, for appellant (plaintiff).

John R. Mitola, Fairfield, for appellee (named defendant).

Before DUPONT, C.J., and EDWARD Y. O'CONNELL and HEIMAN, JJ.

HEIMAN, Judge.

The plaintiff in this personal injury action, Richard Bassin, appeals from the trial court's summary judgment in favor of the defendant city of Stamford. The plaintiff

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claims that the trial court improperly granted the city's motion for summary judgment on the basis of the plaintiff's failure to satisfy the notice provisions contained in General Statutes § 13a-149, because issues of material fact existed concerning whether (1) the notice adequately described the location of the alleged accident, (2) the plaintiff intended to mislead the city regarding the location of the alleged accident and (3) the city was in fact misled regarding the location of the alleged accident. We reverse the trial court's judgment.

The pertinent facts are as follows. On November 20, 1990, the plaintiff filed a revised complaint claiming that he suffered physical and emotional injuries as the result of tripping over a raised manhole cover and falling in the center of South State Street, outside the Stamford railroad station. The second count of the revised complaint alleged that the city breached its duty to keep the road in repair. ¹ See General Statutes [26 Conn.App. 536] § 13a-149. ² The plaintiff, in an attempt to comply with the notice requirements of § 13a-149, sent a certified letter dated November, 3, 1987, to the city. The letter informed the city that the plaintiff was injured after he "tripped on a raised sewer hole at the Stamford Railroad Station on October 18, 1987, at approximately 11:45 P.M., while [he] was exiting the Railroad Station on the Northbound side." The city filed a motion for summary judgment on May 2, 1991, claiming that the plaintiff failed to comply with the notice provisions of § 13a-149. In support of its motion, the city filed an affidavit sworn to by John R. Mitola, its attorney. Mitola stated in the affidavit that because "[t]he only facts necessary for determination of the instant motion for summary judgment can be gleaned from the examination of the court's file ... no factual affidavit is necessary to support this motion." The plaintiff responded by filing a written objection to the motion together with an affidavit sworn to by the plaintiff personally. In his affidavit, the plaintiff did not address the adequacy of the notice. Rather, he simply restated the central allegations contained in his complaint that after he exited the "northbound train at the Stamford Railroad Station, and ... walked under the underpass to the [26 Conn.App. 537] southside of the station" he was injured when he tripped over a "raised manhole in the center of [South State Street]." The trial court granted the motion for summary judgment, reasoning that (1) the description of the accident's location was so indefinite that it constituted a complete failure of notice, and (2) even if the notice was simply inaccurate, the plaintiff failed to invoke the saving clause of § 13a-149 by alleging either that the plaintiff did not intend to mislead the city or that the city was not in fact misled. The plaintiff appealed from the trial court's summary judgment rendered in favor of the city.

Under our rules of practice, any party may move for summary judgment once the pleadings in a case are closed. Practice Book § 379. The party seeking summary judgment bears the burden of showing the nonexistence of any material fact, which is any fact that will make a difference in the result of a case. Cummings

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& Lockwood v. Gray, 26 Conn.App. 293, 297, 600 A.2d 1040 (1991). To satisfy this burden, the moving party must offer "such documents as may be appropriate, including but not limited to affidavits ... written admissions and the...