Curry v. Daly, CV 02 0516554 S (Conn. Super. 12/2/2003), CV 02 0516554 S
| Decision Date | 02 December 2003 |
| Docket Number | CV 02 0516554 S |
| Court | Connecticut Superior Court |
| Parties | Edward Curry v. Jack Daly |
The instant action was originally brought as a Small Claims action. The matter was transferred to the regular civil docket on August 14, 2002.
On October 30, 2002, the plaintiff filed a Revised Complaint. Said complaint provides in pertinent part that:
4. On or about July 21, 2002, the defendants falsely complained to the Southington Police Department that the plaintiff was involved in a domestic dispute.
5. On the basis of the defendants (sic) false complaint, the Southington Police applied for and obtained an arrest warrant for the plaintiff for the crime of disorderly conduct in violation of Conn. Gen. State. §53a-182. Thereafter, the plaintiff was arrested on this warrant on or about July 29, 2002, handcuffed, transported to the police lockup, and incarcerated for several hours . . .
6. Pursuant to this arrest, the plaintiff appeared in Superior Court in Bristol on or about July 30, 2002, and was required to meet with a family relations officer, after which the plaintiff pleaded not guilty and the case was continued . . .
9. The charges pending in court were dismissed by a judge of the Superior Court on or about October 22, 2002, resulting in the termination of the proceedings in the plaintiff's favor.
Count One of the Complaint sounds in "malicious prosecution." Count Two of the Complaint sounds in "abuse of process." Count Three sounds in "slander." Count Four sounds in "libel." Count Five sounds in the "infliction of emotional distress."
On July 28, 2003, the plaintiff Gary Turek filed a Motion for Summary Judgment. The plaintiff also filed an Affidavit in Support of Summary Judgment. Said affidavit provides in pertinent part that:
2. On July 21, 2002, I made a statement to the police concerning screaming, loud music and other noise coming from the Curry house at 1071 Woodruff Street. A true and accurate copy of this statement is attached to this affidavit . . .
4. Upon hearing the noises coming from 1071 Woodruff Street, I was concerned for the safety of Ms. Curry.
5. Upon hearing the noises coming from 1071 Woodruff Street, I was concerned for the well being of my children, who were being exposed to hearing the heated argument and profanity.
6. I made no request that the police make any arrest, or for the Department of Families and Children to investigate this incident.
Section 17-45 of the Connecticut Practice Book concerns the proceedings for motions for summary judgment. It provides that:
A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like. The motion shall be placed on the short calendar to be held not less than fifteen days following the filing of the motion and the supporting materials, unless the judicial authority otherwise directs. The adverse party [prior to the day the case is set down for short calendar] shall at least five days before the date the motion is to be considered on the short calendar file opposing affidavits and other available documentary evidence. Affidavits, and other documentary proof not already a part of the file, shall be filed and served as are pleadings.
Before addressing the merits of the defendant's motion, a brief review of the standards for the granting of a Motion for Summary Judgment is warranted:
"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." (Internal quotation marks omitted.) Orkney v. Hanover Ins. Co., 248 Conn. 195, 201, 727 A.2d 700 (1999).
QSP, Inc. v. The Aetna Casualty & Surety Co., 256 Conn. 343, 351 (2001).
On September 23, 2003, the plaintiff filed an Objection to the Defendant Gary Turek's Motion for Summary Judgment, asserting that there are genuine issues of material fact and that the defendant failed to plead qualified immunity as an affirmative defense.
The plaintiff also filed an affidavit by Edward Curry in support of its objection to the motion for summary judgment. Said affidavit provides in pertinent part that:
6. We did not return home until 1:30 p.m. at the earliest. At 2:30 p.m. until approximately 4:00 p.m., I went outside and washed, waxed, and vacuumed my car. During this time my wife and I had an argument that involved her swearing at me approximately 10 times. At approximately 4:00 p.m., I went inside to have dinner. The day was hot and we had the air conditioner running and the windows were all shut . . .
In addition to the affidavits submitted by the parties (former party in the case of Mr. Curry), the defendant submitted an affidavit of Officer Anthony Cannatelli of the Southington Police Department. This affidavit provides in pertinent part that:
2. On July 21, 2002, in my capacity as an officer with the Southington Police Department, I investigated a report of a family dispute at 1071 Woodruff Sweet.
3. Attached to this Affidavit is a true and accurate copy of the police report I created, soon after the investigation and in my official capacity as an officer.
4. The incident report attached to this Affidavit is true and accurate.
The subject police report provides in pertinent part that:
I responded to 1071 Woodruff Street on the report of a family dispute. The female caller requested to remain anonymous and stated their (sic) was screaming coming from the Curry residence. Upon arrival, I heard a female screaming inside the Curry residence. Fearing for the females (sic) safety, officers knocked and gave verbal commands to open the front door or forced entry would be made. The screaming then stopped and Edward Curry opened the door . . .
The neighbors at 1085 Woodruff Street refused to get involved with the incident, but neighbors at 1085 Woodruff Street (Gary Turek) and 1099 Woodruff Sweet (Jeff Brooks and Donna Vitiello) came forward and wished to give statements. Statements were taken and it was revealed that Edward and Carol had been arguing since around 11 a.m. These arguments were heard clearly by the neighbors and disturbed their peace. Therefor a warrant was applied for the arrest of both Edward and Carol charging them both with Breach of Peace in the 2nd Degree . . .
The First Count of the Revised Complaint sounds in a cause of action sounding in malicious prosecution. The Second Count sounds in an abuse of process.
In a malicious prosecution or vexatious litigation action," it is necessary to prove want of probable cause, malice and a termination of [the] suit in the plaintiffs' favor." DeLaurentis v. New Haven, 220 Conn. 225, 248, 597 A.2d 807 (1991). (Citation omitted.) Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Cole, 189 Conn. 518, 538, 457 A.2d 656 (1983). (footnotes omitted)
QSP, Inc v. Aetna Casualty & Surety Co., 256 Conn. 343, 361 (2001).
Section 53a-181 of the Connecticut General Statutes concerns a "breach of the peace in the second degree." This statute provides that:
(a) A person is guilty of breach of the peace in the second degree when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, such person: (1) Engages in fighting or in violent, tumultuous or threatening behavior in a public place; or (2) assaults or strikes another; or (3) threatens to commit any crime against another person or such other person's property; or (4) publicly exhibits, distributes, posts up or advertises any offensive, indecent or abusive matter concerning any person; or (5) in a public place, uses abusive or obscene language or makes an obscene gesture; or (6) creates a public and hazardous or physically offensive condition by any act which such person is not licensed or privileged to do.
For purposes of this section, "public place" means any area that is used or held out for use by the public whether owned or operated by public or private interests.
(b) Breach of the peace in the second degree is a class B misdemeanor.
The plaintiff in the instant action concedes that "[his] wife and [he] had an argument that involved her swearing at [him] approximately 10 times." Additionally the investigating officer "heard a female screaming inside the Curry residence." Although the plaintiff asserts that the subject activity did not go on all day as alleged by the defendant, the subject statute does not require the offending activity to take place for any specific duration in order for the statute to be violated. There are no genuine issues of material fact as to there being probable cause for the subject arrests to take place. The fact that the charges were later dismissed after the defendants' appearance in court and attending at least one family relations session does not alter this fact. Therefore the motion for summary judgment is granted as to the First and Second Counts.
The Third of the Revised Complaint sounds in Slander and Fourth Count of the Revised Complaint sounds in libel.
. . . "Slander is oral defamation." (Citation omitted; internal quotation marks omitted.) DeVito v. Schwartz, 66 Conn.App. 228, 234, 784 A.2d 376 (2001). Libel . . . is written defamation. Charles Parker Co. v. Silver City...
To continue reading
Request your trial