Pinsky v. Duncan, Civ. No. N-88-339 (WWE).

• Court: United States District Courts. 2nd Circuit. United States District Court (Connecticut)
• Writing for the Court: Joanne S. Faulkner, New Haven, Conn., for plaintiffs
• Citation: 716 F. Supp. 58
• Parties: Roland PINSKY, et al., v. Richard K. DUNCAN, et al.
• Decision Date: 17 February 1989
• Docket Number: Civ. No. N-88-339 (WWE).

716 F. Supp. 58

Roland PINSKY, et al.,
v.
Richard K. DUNCAN, et al.

Civ. No. N-88-339 (WWE).

United States District Court, D. Connecticut.

February 17, 1989.

Joanne S. Faulkner, New Haven, Conn., for plaintiffs.

Milton A. Bernblum, Lawrence J. Greenberg, Gold, Bernblum and Greenberg, New Haven, Conn., Joseph Patrucco, Meriden, Conn., David Greenberg, Greenberg Hurwitz and Cooper P.C., New Haven, Conn., for defendants.

MEMORANDUM OF DECISION ON DEFENDANT JOHN F. DIGIOVANNI'S MOTION FOR SUMMARY JUDGMENT

EGINTON, District Judge.

In conjunction with several cases pending in the Connecticut Superior Court, each

716 F. Supp. 59

of the three defendants in this action secured an attachment of one of the plaintiffs' real property pursuant to Conn.Gen. Stat. Sec. 52-278e(a)(1). The plaintiffs claim that Section 52-278e(a)(1) is unconstitutional because it authorizes a plaintiff in a state court action to attach a defendant's real property without the filing of a bond and without prior notice and a hearing. They apparently make no claim that the statute was unconstitutional as applied in their particular cases

On December 1, 1988, the Court granted defendant Joseph Golden Insurance Agency's motion for summary judgment after finding that Section 52-278e is constitutional. Presently pending is John F. DiGiovanni's motion for summary judgment which, like Joseph Golden Insurance Agency's motion, asserts the facial validity of Connecticut's prejudgment remedy statute. The Court considers this an opportunity to re-examine the merits of the plaintiffs' position. Upon reconsideration and for the reasons set forth below, defendant DiGiovanni's motion for summary judgment is GRANTED.

In relevant part, Conn.Gen.Stat. Sec. 52-278e provides:

(a) The court or a judge of the court may allow the prejudgment remedy to be issued by an attorney without hearing as provided in sections 52-278c and 52-278d upon verification by oath of the plaintiff or of some competent affiant, that there is probable cause to sustain the validity of the plaintiff's claim and (1) that the prejudgment remedy requested is for the attachment of real property....

Upon examination of this statute, Judge Zampano recently noted:

Review of the Connecticut statute reveals that it was drafted with the dictates of due process, as the Supreme Court has articulated them, in mind. See Conn.Gen.Stat. Sections 52-278e(a), 52-278e(c); Fermont Div., Dynamics Corp. of America, Inc. v. Smith, 178 Conn. 393, 397 423 A.2d 80 (1979) (section 52-278e exhibits all the saving characteristics that the law of procedural due process requires); Sellner v. Beechwood Cons. Co., 176 Conn. 432, 434 407 A.2d 1026 (1979) (section 52-278e was "enacted in response to the constitutional instructions" of relevant United States Supreme Court precedent). The facial constitutional validity of Section 52-278e thus stands beyond question....

Read v. Jacksen, Civil No. B-85-85, Ruling on Defendants' Motions for Summary Judgment, slip op. at 8, 1988 WL 163017 (D.Conn. February 19, 1988); see also Shaumyan v. O'Neill, Civil No. N-87-463, Ruling on Motions to Dismiss (D.Conn. June 21, 1988) (Nevas, J.) (instructing party mounting constitutional challenge to Section 52-278e(a)(1) to "fully address the implications of Read" in their summary...