Berlin v. Liebowitz

• Court: Connecticut Superior Court
• Writing for the Court: Krumeich, J.T.R.
• Docket Number: FSTCV 24-6065031S
• Decision Date: 22 October 2025
• Citation: Berlin v. Liebowitz, FSTCV 24-6065031S (Conn. Super. Oct 22, 2025)
• Parties: BERLIN, MICHELLE v. LIEBOWITZ, SARA

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BERLIN, MICHELLE v. LIEBOWITZ, SARA

No. FSTCV 24-6065031S

Superior Court of Connecticut, Judicial District of Stamford-Norwalk, Stamford

October 22, 2025

MEMORANDUM OF LAW

Krumeich, J.T.R.

Defendant Hi-Gold Insulation Company, Inc. ("Hi-Gold") has moved for summary judgment to dismiss Counts Two and Four of the revised complaint in this dog bite case "on the grounds that it cannot be liable for Plaintiff's purported injuries as it was not the owner and/or keeper of the dog nor did it have any knowledge of any dangerous or vicious propensities on the dog's part." For the reasons stated below, the motion is granted.

The Standards for Issuance of Summary Judgment

In Rutherford-Cotrustee of William A. Rutherford Trust v Slagle Cotrustee of William A. Rutherford Trust, 352 Conn. 27, 35-36 (2025), the Supreme Court recently held that a summary judgment motion is an available and proper remedy in a probate appeal.

"The standards ... [for] review of a ... motion for summary judgment are well established. 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 seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law... and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.... A material fact... [is] a fact which will make a difference in the result of the case...." DiPietro v. Farmington Sports Arena LLC, 306 Conn. 107,115-16 (2012), quoting H.O.R.S.E of Connecticut, Inc. v. Washington, 258 Conn. 553, 558-60 (2001). (Citations omitted).

"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. 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...."Zielinski v. Kotsoris, 279 Conn. 312, 318(2006).

Once the movant for summary judgment has satisfied the initial burden of showing the absence of a material issue of fact, the burden shifts to the opponent to establish that there is a genuine issue of material fact: "it is then 'incumbent upon the party opposing summary judgment to establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact exists.'" Iacurci v. Sax, 313 Conn. 786, 799 (2014), quoting Connell v. Colwell, 214 Conn. 242, 251 (1990). The nonmoving party, however, has no obligation to submit documents establishing the existence of a genuine issue of material fact until the moving party has met its burden of "showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any [such] issue of material fact." State Farm Fire &Casualty Co. v. Tully, 322 Conn. 566, 573 (2016).

"It is fundamental that, when ruling on such a motion, a trial court is limited to determining whether a material factual issue exists; it may not then proceed to try that issue on the summary judgment record, if the issue does exist.... When deciding a summary judgment motion, a trial court may not resolve credibility questions raised by affidavits or deposition testimony submitted by the parties." Doe v. Town of West Hartford, 328 Conn. 172,196-97 (2018).

Hi-Gold Is Not Liable Under C.G.S. § 22-357.

In the Second Count plaintiff alleged: "Defendant Hi-Gold, as owner and/or keepers of the dog, is liable for the attack and the resulting injuries suffered by Plaintiff in accordance with the provisions of C.G.S. § 22-357 "^[1]

In Auster v. Norwalk United Methodist Church, 286 Conn. 152,160 (2008), the Supreme Court discussed the circumstances under which a landlord may be held liable under the strict liability provisions of Section 22-357:

"Under General Statutes § 22-327(6), a keeper is defined as 'any person, other than the owner, harboring or having in his possession any dog....''To harbor a dog is to afford lodging, shelter or refuge to it.' Falby v. Zarembski, 221 Conn. 14,19, 602 A.2d 1 (1992). '[Possession [of a dog] cannot be fairly construed as anything short of the exercise of dominion and control similar to and in substitution for that which ordinarily would be exerted by the owner in possession.' Hancock v. Finch, 126 Conn. 121, 123, 9 A.2d 811 (1939). 'One who treats a dog as living at his house and undertakes to control his actions is [a]... keeper....'"

The Auster Court expanded upon when a non-owner, including a landlord, may be held strictly liable under the dog bite statute:

" ... [A] person will not be deemed to be a keeper of a dog under § 22-357 unless that person exercises control over the dog 'in a manner similar to that which would ordinarily be exerted by the owner.'... In other words, a nonowner of a dog cannot be held strictly liable for damage done by the dogto another in the absence of evidence that the nonowner was responsible for maintaining and controlling the dog at the time the damage was done. ...[S]uch proof generally will consist of evidence that the nonowner was feeding, giving water to, exercising, sheltering or otherwise caring for the dog when the incident occurred.... Thus, a landlord is not the keeper of a dog for purposes of § 22-357 merely because the landlord acquiesces in the presence of the dog on leased premises, or because the landlord has the authority to require that the dog be removed from the premises in the event that it becomes a nuisance, or even because the landlord has the authority to require that certain conditions be placed on the use of the dog by its owner." 286 Conn, at 161-62 (citations omitted).

The defendant has submitted evidence that the dog was owned by Sara Liebowitz, the tenant in one of the apartments in a building owned by Hi-Gold and was not controlled or kept by Hi-Gold. The dog attacked plaintiff in the leased unit when she was visiting Ms. Liebowitz. Defendants submitted affidavits that averred the dog belonged to the tenant, who was not an employee of Hi-Gold, that no agent, employee or member was there at the time of the incident, Hi-Gold as landlord did not own or care for the dog and had never received any reports of the dog "acting aggressively or violently, other than the incident involving the Plaintiff."

Plaintiff submitted evidence that Hi-Gold was a single asset company whose sole business was owning and managing the subject property in which Ms. Liebowitz was the sole tenant of her...