96 Conn. App. 88 | Conn. App. Ct. | 2006
Opinion
The plaintiffs
The plaintiffs are the owners of lots 37 and 38 as shown on a certain map entitled “Building Lots Owned by Eugene C. Palmer Oxford, Conn.,” dated July 23, 1946. The two lots are located on the westerly side of Stephenson Dam Road (Route 34) in Oxford and front on the Housatonic River. The parcel in dispute is located between the plaintiffs’ two lots and is bounded by Stephenson Dam Road, the Housatonic River and the respective lots of the parties. The defendants, owners of other lots shown on the map, have or claim an interest in the parcel by reason of certain deeds, including mortgage deeds. Many of the defendants were defaulted, and several filed appearances and responsive pleadings.
The court, Moran, J., rendered summary judgment as to the first count on the grounds that the plaintiffs, who submitted only the uncertified transcripts of the depositions of Edwin W. Barlow, Florence F. Sysak and Diane Dyson, a tenant on the Barlow parcel, failed to offer an affidavit or any other evidence that would put the material fact of Lanette Maiorino’s denial of the plaintiffs’ exclusive use into dispute, and because the shared use alleged by the plaintiffs defeats their claim of exclusivity. The court denied summary judgment as to the abandonment count. At the trial on the issue of abandonment, the court, Hon. Hugh C. Curran, judge trial referee, found that the plaintiffs had not proved their claim of abandonment.
On appeal, the plaintiffs first challenge the trial court’s granting of the motion for summary judgment in favor of the Maiorinos as to count one of the complaint.
The rule for granting motions for summary judgment is set forth in Practice Book § 17-49. Summary judgment is to 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 summary judgment as a matter of law. Practice Book § 17-46 provides: “Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible
Our review of the court’s decision to grant a summary judgment motion is plenary. Barry v. Quality Steel Products, Inc., 263 Conn. 424, 450, 820 A.2d 258 (2003). Whether the court properly excluded the deposition transcripts is an evidentiary ruling that we review under the abuse of discretion standard. Cote v. Machabee, 87 Conn. App. 627, 630, 866 A.2d 639 (2005).
We first address the issue of whether the court properly granted the motion for summary judgment on the ground that the opposing party submitted an uncertified transcript of the deposition in opposition to the motion. If the court properly granted the motion on that basis, whether the court was correct as to the ruling on the issue of exclusivity as a matter of law is immaterial.
Here, refusing to consider the deposition testimony, the court found that the “plaintiffs have failed to offer an affidavit, or any other evidence, that would tend to put [the] material fact in dispute” and, therefore, the plaintiffs failed to create a triable issue as to whether the use that Lanette Maiorino claimed in her affidavit defeats the plaintiffs’ claims of exclusive use.
Thus, that issue turns on whether the uncertified transcripts could be and should be disregarded by the court.
Accordingly, the court did not improperly fail to consider the plaintiffs’ opposition to the Maiorinos’ motion. Thus, the plaintiffs cannot prevail on their claim that the court improperly granted the motion for summary judgment filed by the Maiorinos.
The judgment is affirmed.
In this opinion the other judges concurred.
The plaintiffs are David J. Barlow, Richard E. Barlow, Edwin W. Barlow and Florence F. Sysak.
The complaint was brought against twenty-four defendants, including John M. Maiorino, Jr., and his wife, Lanette M. Maiorino.
The plaintiffs have not appealed from the court’s rulings with respect to abandonment
We note that, the trial courts are divided on the issue of whether an uncertified copy of a deposition may be used in support of or in opposition to summary judgment. LaSalle National Bank v. Freshfield Meadows, LLC, 69 Conn. App. 824, 831, 798 A.2d 445 (2002). See, e.g., Ennis v. Dixon, Superior Court, judicial district of Hartford, Docket No. 502559 (January 20,2006), and cases cited therein. Here, the deposition transcript was submitted to the court without objection. The sole issue decided here is whether the court abused its discretion in not considering the uncertified deposition testimony.
Practice Book § 1-8 provides: “The design of these rules being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work suiprise or injustice.”
Such a result would appear to be consistent with the purpose of Practice Book § 17-47, which provides: “Should it appear from the affidavits of a party opposing the motion that such party cannot, for reasons stated, present facts essential to justify opposition, the judicial authority may deny the motion for judgment or may order a continuance to permit affidavits to be obtained or discovery to be had or may make such other order as is just.”