Pollack v. Eitelberg

• Decision Date: 30 November 2012
• Docket Number: CV095011274S.
• Court: Connecticut Superior Court
• Parties: Stephen POLLACK et al. v. Adam EITELBERG et al.

Stephen POLLACK et al. v. Adam EITELBERG et al.

No. CV095011274S.

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

November 30, 2012

UNPUBLISHED OPINION

ALFRED J. JENNINGS, JR., Judge Trial Referee.

PROCEDURAL/FACTUAL BACKGROUND

The plaintiffs, Debra and Stephen Pollack, commenced this suit on May 4, 2009 in nine counts against the defendants, Adam Eitelberg and Park City Woodworks, LLC. The operative complaint is the Second Amended Complaint of January 26 2010, which sounds, among other theories, in breach of contract, fraud and embezzlement. The complaint alleges that the parties entered into a contract on or about January 4 2008, under which the defendants agreed to construct an addition to the plaintiffs' home. The project slowed and eventually stalled in the summer of 2008 when the work crew walked off the property, which ultimately required the plaintiffs to hire further contractors at additional cost to complete the job.

On August 28, 2011, the defendant Adam Eitelberg (" defendant") filed an amended answer and five-count counterclaim, which alleges the following facts: The plaintiffs were acquainted with the defendant's family through common memberships in the Jewish community of greater Stamford, including membership in Temple Beth El and common enrollment of the parties' children in the Bi-Cultural Day School. On May 31, 2009, after the plaintiffs filed the underlying action, the defendant's home in Bridgeport burned down. In June 2009, the defendant was arrested on larceny charges brought by the plaintiffs and relating to the construction dispute.

On October 22, 2009, it is alleged, the plaintiffs wrote an email to JewishStamford@yahoogroups.com titled " Adam Eitelberg has been Indicted for First Degree Grand Larceny " in which the plaintiffs stated that they had been victimized by the defendant in connection with the construction project and requesting anyone else with similar experiences to come forward. Additionally, the plaintiffs added directions for finding the charges as posted on the Connecticut Judicial Branch website with the statement " If you would like to verify that Mr. Eitelberg is, in fact indicted ..." Furthermore, soon after publishing the aforementioned e-mail, defendant alleges that the plaintiffs sent emails to " members of Temple Beth El and to parents of Bi-Cultural Day School students" stating that the defendant burned down his house. Finally, in late 2009 or early 2010, the defendant's wife was contacted by Steven Koback (" Koback, ") a reporter from the Norwalk Hour, who stated that " Ms. Pollack told him that Mr. Eitelberg committed arson by burning down his house and embezzled funds from the Pollacks."

Count one of the counterclaim sounds in defamation per se arising from the plaintiffs' email of October 22, 2009 as directed to the members of the Stamford Jewish e-mail group. Count two sounds in defamation per se for the additional e-mails the plaintiffs allegedly sent to individuals in the same community purportedly stating that the defendant burned his house down. Count three sounds in defamation per se for the plaintiffs' alleged statements to Koback that the defendant committed arson and embezzlement. Count four alleges defamation per se with special damages because the defendant's psychiatric recovery was allegedly delayed by feelings of ostracism from his religious community as a result of the defamations in counts one, two and three. Count five alleges intentional infliction of emotional distress based on the statements of the plaintiffs.

The plaintiffs have filed the instant motion for summary judgment with an attached memorandum of law on June 18, 2012, and attached the following exhibits: 1) an application for arrest warrant in the name of the defendant; 2) an affidavit of Debra Pollack; 3) a printout of the Connecticut Judicial Branch webpage detailing the defendant's conviction; 4) a copy of the state police bureau of identification listing the defendant and charges against him; 5) a portion of transcript taken from the deposition of the defendant's wife; 6) a news article from an unknown online source regarding a witness to the defendant's house fire; 7) the city of Bridgeport fire report; and 8) a portion of the transcript of the deposition of Koback.

The defendant filed a memorandum in objection to the motion for summary judgment on July 26, 2012. In support of his objection, the defendant submitted: 1) a copy of the plaintiffs' answer to the counterclaim; 2) a copy of the underlying contract between the parties; 3) a copy of an affidavit made by the defendant in response to a motion for contempt; 4) a copy of a complaint letter written by the plaintiffs and addressed to a U.S. Attorney; 5) a two-page portion of a court transcript from the criminal proceeding against the defendant; 6) six pages of the transcript from the deposition of Koback; and 7) a copy of the stipulation between the parties which disposed of the plaintiffs' application for prejudgment remedy. The plaintiffs filed a reply brief to the objection on July 27, 2012, and submitted in support copies of the unpublished cases that the plaintiffs had cited in the motion for summary judgment.

Oral argument was heard before the court during short calendar on July 30, 2012. On November 27, 2012 this court issued an electronic order granting the plaintiff's motion for summary judgment as to counts one, two, four and five of the counterclaim, but denying the motion for summary judgment as to count three of the counterclaim. This memorandum of decision is the court's articulation of the bases for those rulings.

DISCUSSION

" Practice Book § 17-49 provides that summary judgment shall be rendered 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.) Stewart v. Watertown, 303 Conn. 699, 709-10, 38 A.3d 72 (2012).

" A genuine issue has been variously described as a triable substantial or real issue of fact ... and has been defined as one which can be maintained by substantial evidence." (Citation omitted; internal quotation marks omitted.) United Oil Co. v. Urban Development Commission, 158 Conn. 364, 378, 260 A.2d 596 (1969). " A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). " In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact ... but rather to determine whether any such issues exist." (Internal quotation marks omitted.) RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 233, 32 A.3d 307 (2011).

" 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 ... Once the moving party has met its burden however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008). " Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." (Internal quotation marks omitted.) Great County Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997), citing Practice Book § 17-46. A party's conclusory statements, " in the affidavit and elsewhere ... do not constitute evidence sufficient to establish the existence of disputed material facts." Gupta v. New Britain General Hospital, 239 Conn. 574, 583, 687 A.2d 111 (1996).

" Summary judgment in favor of the defendant is properly granted if the defendant in its motion raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact." (Internal quotation marks omitted.) Serrano v. Burns, 248 Conn. 419, 424, 727 A.2d 1276 (1999). " Only one of [a defendant's] defenses needs to be valid in order to overcome [a] motion for summary judgment. [S]ince a single valid defense may defeat recovery, [a movant's] motion for summary judgment should be denied when any defense presents significant fact issues that should be tried." (Internal quotation marks omitted.) Union Trust Co. v. Jackson, 42 Conn.App. 413, 417, 679 A.2d 421 (1996).

" [A]ny party may move for summary judgment upon any counterclaim or cross complaint as if it were an independent action ..." Practice Book § 17-44.

The plaintiffs argue in their memorandum of law that no genuine issue of material fact exists as to the claims alleged by the defendant, and that they are therefore entitled to summary judgment on all counts. They reason that the statements in counts one and three were true, and thus cannot be subject to claims for defamation; also that the information alleged in count one was publically available and thus cannot be actionable as defamatory; that the defendant has failed to offer proof that the defamatory statements alleged in count two were ever published; that the statement alleged in count three is only supported by hearsay evidence, which alone will not suffice to withstand a motion for summary judgment; that the defendant has not offered any proof upon which the...