Booth v. Park Terrace II Mutual Housing Ltd. Partnership ( 2023 )

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JOSEPH M. BOOTH v. PARK TERRACE II MUTUAL
HOUSING LIMITED PARTNERSHIP ET AL.
(AC 45094)
Alvord, Prescott and Moll, Js.
Syllabus
The plaintiff sought to recover damages for injuries he sustained when he
allegedly tripped and fell on a concrete walkway separating the lawns
of two buildings on a property owned by the defendants P Co. and M
Co. The defendants C Co. and T Co. were hired to work on a rehabilitation
project on the property. The plaintiff alleged that he tripped on the
raised edge of the walkway, which was perpendicular to and abutted
the front sidewalk between the two buildings. He claimed that the raised
edge created a hazardous condition. During the pretrial proceedings, P
Co. and M Co. served the plaintiff with a request for admission pursuant
to the applicable rule of practice (§ 13-22). The request stated that an
attached photograph fairly and accurately depicted the location of the
plaintiff’s fall, and that the alleged proximately causative defect of the
claimed fall as asserted in the complaint was encircled in red on the
photograph. The plaintiff did not answer or object to the request for
admission, and the request for admission was deemed admitted. There-
after, P Co. and M Co. filed an expert witness disclosure, which repre-
sented that the expected testimony of their expert, C, was that the
plaintiff’s fall did not occur on their property but on land owned by the
city of Hartford. Subsequently, the defendants filed motions for summary
judgment, claiming, inter alia, that the plaintiff’s fall occurred on a public
sidewalk owned and maintained by the city of Hartford and that they
had no legal duty to maintain or repair the sidewalk. In support thereof,
they attached an affidavit of C, who averred that he had performed a
comprehensive land survey of the property and that the area circled on
the photograph attached to the request for admission was not private
property of the abutting owner but was a public sidewalk owned and
maintained by the city of Hartford. The defendants further argued that
the exceptions to the general rule absolving property owners of liability
for defective public sidewalks were not applicable, as there was no
ordinance shifting responsibility to the abutting landowner and the plain-
tiff’s complaint had not alleged any ‘‘positive act’’ on behalf of the
defendants that created a defect. The plaintiff filed objections to the
motions for summary judgment, claiming that genuine issues of material
fact existed as to whether he fell on property owned by P Co. and M
Co. and whether C Co. and T Co. were contracted to repair and renovate
the walkway at issue and the abutting sidewalk, thus engaging in a
positive act. Thereafter, the plaintiff filed a request to amend the revised
complaint, in which he sought to include additional allegations as to
the construction, maintenance, and renovations by the defendants. The
trial court denied the plaintiff’s request to revise and granted the defen-
dants’ motions for summary judgment. On the plaintiff’s appeal to this
court, held:
1. The trial court properly granted the defendants’ motions for summary
judgment, that court having properly determined that there were no
genuine issues of material fact:
a. The trial court properly concluded that there were no genuine issues
of material fact with respect to the extent and location of the defective
condition that caused the plaintiff’s alleged fall: the location of the plain-
tiff’s fall was conclusively established by the request for admission;
moreover, the plaintiff’s claim that the admission established, at most,
the location of the fall, and not the defective condition that caused the
fall, was unavailing, as the court properly relied on the admission as
conclusively establishing that the alleged defect was contained with the
red circled area of the photograph.
b. The trial court properly concluded that the plaintiff, as the opposing
party, failed to present evidence demonstrating the existence of some
disputed factual issue as to the ownership or maintenance of the area
in which he allegedly fell: the plaintiff’s submissions of sidewalk citation
and correction records, a demolition plan, and a renovation and repair
plan, did not create a genuine issue of material fact as to whether the
defendants were responsible for keeping the abutting sidewalk in a
safe condition, as the citation and correction records related to other
properties and not to the property at issue, the demolition plan contained
print so small and blurry as to be practically unreadable and, although
the text of that plan failed to explicate the technical design plans, the
plaintiff failed to support his opposition with affidavits or deposition
testimony of fact witnesses with personal knowledge of the plans or the
property, and the renovation and repair plan documents were dated after
the date of the plaintiff’s fall and none of the extensive textual notes or
legends on the plan documents were legible; moreover, representations
by the plaintiff’s counsel as to what was depicted in and the significance
of the text in the demolition plan was not evidence.
c. Contrary to the plaintiff’s contention, the operative complaint did not
allege any positive acts by the defendants involving the area where the
plaintiff fell to bring his claims within the positive act exception to the
common-law rule that an abutting landowner is under no duty to keep
the public sidewalk in front of its property safe: the plaintiff did not
allege that the defendants constructed the walkway or abutting sidewalk
nor did he allege that they undertook any positive act with respect to
the walkway or abutting sidewalk, rather, the plaintiff alleged that the
defendants failed to take affirmative steps to remediate the defective
condition; moreover, the allegation that there existed a walkway that
was raised higher than the abutting sidewalk could not be construed as
alleging that the defendants, through a positive act, caused the defect
in the sidewalk.
2. The trial court did not abuse its discretion in denying the plaintiff’s request
to amend his revised complaint: that court properly found that permitting
the amendments would prejudice the defendants in that it would alter
the substance of the plaintiff’s claim while the motions for summary
judgment were pending, the motions having already been fully briefed
by all parties, and oral argument on those motions having already been
scheduled; moreover, the plaintiff’s claims that he did not assert new
counts of liability and that his delay in obtaining documents from the
city of Hartford was not unreasonable due to limited access to the city
hall during the pandemic were unavailing, as the trial court properly
determined that permitting the amendments would prejudice the defen-
dants by requiring additional discovery and occasion further delay.
3. This court declined to review the plaintiff’s claim that the trial court
abused its discretion in denying his motion to preclude the expert wit-
ness affidavit offered by P Co. and M Co. in support of their motion for
summary judgment: the plaintiff’s claim was inadequately briefed, as he
devoted only one paragraph of his brief to this claim, and he provided
no analysis in support of his argument.
Argued November 8, 2022—officially released January 31, 2023
Procedural History
Action to recover damages for personal injuries sus-
tained as a result of the defendants’ alleged negligence,
and for other relief, brought to the Superior Court in
the judicial district of Tolland, where the defendants
filed motions for summary judgment; thereafter, the
court, Parkinson, J., denied the plaintiff’s request to
amend the complaint and his motion to preclude the
expert witness affidavit of the named defendant et al.;
subsequently, the court, Parkinson, J., granted the
defendants’ motions for summary judgment and ren-
dered judgment thereon, from which the plaintiff
appealed to this court. Affirmed.
David S. Seidman, for the appellant (plaintiff).
Lawrence L. Connelli, for the appellees (named
defendant et al.).
Jeffrey D. Bausch, with whom, on the brief, was
Donald W. Doeg, for the appellees (defendant Crosskey
Architects, LLC, et al.).
Opinion
ALVORD, J. The plaintiff, Joseph M. Booth, appeals
from the judgment of the trial court granting motions
for summary judgment filed by the defendants, Park
Terrace II Mutual Housing Limited Partnership and
Mutual Housing Association of Greater Hartford, Inc.
(collectively, owner defendants), and Crosskey Archi-
tects, LLC, and TO Design, LLC (collectively, design
defendants), and denying the plaintiff’s request to
amend his complaint and his motion to preclude expert
testimony. On appeal, the plaintiff claims that the court
(1) improperly rendered summary judgment because
genuine issues of material fact exist, (2) abused its
discretion in denying his request to amend his com-
plaint, and (3) abused its discretion in denying his
motion to preclude the expert affidavit offered in sup-
port of the owner defendants’ motion for summary judg-
ment. We disagree and, accordingly, affirm the judg-
ment of the trial court.
The following procedural history is relevant to our
analysis of the plaintiff’s claims. On or about April 24,
2018, the plaintiff allegedly tripped and fell on a walk-
way separating the lawns of 286 and 290 Park Terrace
in Hartford. In April, 2020, the plaintiff commenced
this action against the owner defendants, owners of
property located at 286 and 290 Park Terrace, and the
design defendants, who were retained to work on a
rehabilitation project at 286 and 290 Park Terrace. The
operative complaint, which is the revised complaint
filed on October 22, 2020,1 contains six counts sounding
in negligence and premises liability.
In counts one and two, the plaintiff alleged that the
owner defendants ‘‘owned or were in control of and/
or had a duty to maintain the walkway and surrounding
areas where the plaintiff fell.’’ The plaintiff alleged that
he tripped and fell on the walkway separating the lawns
of 286 and 290 Park Terrace. Specifically, he alleged
that his ‘‘left foot caught the raised edge of the concrete
walkway that leads to the rear parking lot. That walk-
way is perpendicular to and abuts the front sidewalk
between 286 and 290 Park Terrace . . . . The concrete
walkway is raised higher than the abutting sidewalks
creating a hazardous condition which led to [the plain-
tiff’s] fall.’’ The plaintiff set forth nine allegations of
negligence that he contended caused his injuries: the
owner defendants ‘‘failed to lower the walkway so that
it was level with the abutting sidewalks . . . failed to
position the slab of the walkway so that it was level
with the abutting sidewalks . . . failed to shave down
the slab of the walkway so it was not higher than the
abutting sidewalks . . . failed to maintain the property
in a reasonably safe condition . . . failed to warn the
plaintiff of the dangerous condition . . . breached
[their] duty to inspect [their] property from time to time
to make sure that no hazards or defects existed or if a
dangerous condition existed . . . failed to inspect
[their] property . . . the conditions had existed for an
unreasonable period of time, yet the defendant[s] had
taken no measure to remedy or correct them; and . . .
[they] knew or in the exercise of reasonable care and
inspection should have known of these conditions and
should have taken measures to remedy and correct
them, but the defendant[s] carelessly and negligently
failed to do.’’ The plaintiff alleged, inter alia, that he
sustained physical injuries, he has undergone serious
medical treatment, his ability to enjoy and participate
in life’s activities has been severely diminished, and he
has lost wages.
In counts three and four, the plaintiff alleged that
‘‘[a]t all times hereto’’ the design defendants were hired
to rehabilitate certain properties on Park Terrace,
including property located at 286 and 290 Park Terrace.
He alleged that the design defendants were ‘‘responsible
for the construction means, methods, techniques,
sequences and/or procedures of the rehabilitation.’’ He
alleged that the design defendants ‘‘owned, possessed,
controlled or had an interest in and/or [were] responsi-
ble for the maintenance and/or rehabilitation of the
properties located at 286 . . . and 290 Park Terrace.’’
He alleged that the design defendants were responsible
for maintaining the walkway and surrounding areas
where the plaintiff fell. He further alleged that the
design defendants ‘‘reviewed and surveyed the prop-
erty,’’ but failed to or ‘‘did not recommend that the
raised edge of the slab where the plaintiff tripped be
repaired and/or modified.’’ In addition to the nine allega-
tions of negligence set forth against the owner defen-
dants, the plaintiff alleged that the design defendants
‘‘did not place markers or flags to warn the plaintiff of
[the] defective condition.’’
In counts five and six, the plaintiff alleged that ‘‘[o]n
or about April 24, 2018, and at some time prior thereto,’’
the design defendants were ‘‘hired to design and/or
work a rehabilitation plan so that invitees would be
able to safely walk on the walkway and surrounding
areas at the property.’’ He alleged that the design defen-
dants were negligent in that ‘‘[they] failed to design the
rehabilitation plan so that the walkway was level with
the abutting sidewalks . . . failed to design the rehabil-
itation plan so that [the] position of the slab of the
walkway was level with the abutting sidewalks . . .
failed to design the rehabilitation plan so that the slab
of the walkway was not higher than the abutting side-
walk . . . failed to design the rehabilitation plan so
that the property was in a reasonably safe condition
. . . failed to design the rehabilitation plan so that [the]
plaintiff was warned of the dangerous condition . . .
breached [their] duty to inspect the property from time
to time to make sure that no hazards or defects existed
or if a dangerous condition existed . . . failed to
inspect the property . . . the conditions had existed
for an unreasonable period of time, yet [they] had taken
no measure to remedy or correct them . . . knew or
in the exercise of reasonable care and inspection should
have known of these conditions and should have taken
measures to remedy and correct them, but [they] care-
lessly and negligently failed to do . . . failed to observe
or inspect work in place.’’2
In November, 2020, the owner defendants served the
plaintiff with a request for admission pursuant to Prac-
tice Book § 13-22. The request stated: ‘‘At the time and
place referenced in [the] plaintiff’s complaint, the pho-
tograph attached to Request for Admission #1 of Octo-
ber 20, 2020 (#109), which is marked as ‘Exhibit A’ and
dated May 24, 2018, fairly and accurately depicts the
location of the plaintiff’s claimed fall, and the alleged
proximately causative defect of the claimed fall as
asserted in the complaint, is encircled in red in that
Exhibit A’’3 (request for admission). The plaintiff did
not answer or object to the request for admission. As
a result of the plaintiff’s failure to respond, the request
for admission was deemed admitted. See Practice Book
§ 13-23 (a).4
On April 26, 2021, the owner defendants filed an
expert witness disclosure, in which they disclosed Ken-
neth R. Cyr, a professional land surveyor and principal
of Flynn & Cyr Land Surveying, LLC, a company which
had performed a survey of the property (Cyr survey
map). The disclosure stated that Cyr’s expected testi-
mony was ‘‘based on his education, training and experi-
ence, based on his personal familiarity with the property
at issue in this case and its boundaries, based upon the
[Cyr survey map], and based upon the Survey Map and
Zoom-in Survey Map of the subject property, provided
to all counsel of record at the time of this disclosure
of expert.’’ The disclosure represented that ‘‘[i]t is the
opinion of Mr. Cyr that the alleged fall in this case did
not occur on the property of these defendants, but on
city of Hartford owned land.’’
In April, 2021, the owner defendants also filed a joint
motion for summary judgment and memorandum of
law in support of that motion. Therein, they argued that
the plaintiff’s alleged fall occurred on a public sidewalk
owned and maintained by the city of Hartford. In sup-
port of that contention, the owner defendants attached
an affidavit of Cyr, who averred that he and his firm
had performed a comprehensive land survey of the
property. Cyr averred that he carefully had reviewed
the survey map and the photograph that was attached
to the request for admission. Cyr averred that the ‘‘area
within the red circle on that photograph, Exhibit A, is
not private property of the abutting owner; rather, it is
very clearly public sidewalk based on the Survey Map.
The area encircled in red on Exhibit A is within the
public right-of-way. . . . That area within the red circle
on the photograph, is owned and maintained by the
[c]ity of Hartford, and not by the abutting landowner.’’
(Emphasis omitted.)
On the basis of the foregoing evidence, the owner
defendants argued that the alleged fall occurred within
the public right-of-way, not on private property, and
that, therefore, they had no legal duty to maintain or
repair the sidewalk. They further argued that the excep-
tions to the general rule absolving property owners of
liability for defective public sidewalks were not applica-
ble, as there was no ordinance shifting responsibility
to the abutting landowner and the plaintiff’s complaint
had not alleged any ‘‘positive act’’ on behalf of the
defendants that created a defect.
The design defendants also filed a joint motion for
summary judgment and memorandum of law in support
of their motion, in which they represented that they
joined fully in the motion for summary judgment, mem-
orandum of law, and supporting exhibits filed by the
owner defendants. The design defendants reiterated the
owner defendants’ arguments, arguing that they had no
duty to maintain property owned by the city of Hartford
and that the plaintiff had alleged no positive act by
them.
On July 2, 2021,5 the plaintiff filed objections to the
defendants’ motions for summary judgment. The plain-
tiff asserted that the owner defendants ‘‘constructed
the abutting sidewalk, repaired it, maintained it, and
have corrected various sidewalk citations relating to the
abutting sidewalk.’’ The plaintiff argued that genuine
issues of material fact existed with respect to whether
the plaintiff fell on the owner defendants’ property or on
an abutting sidewalk; whether the hazardous condition
consisted of the entire walkway, which he contended
was steeply sloped, or only the raised lip at the end of
the walkway; whether the owner defendants, in con-
structing both the walkway and the abutting sidewalk
and correcting various sidewalk citations issued by the
city, had engaged in positive acts that imposed a duty
on the owner defendants; and whether the owner defen-
dants, in constructing the walkway and the abutting
sidewalk and correcting the sidewalk citations, had pos-
session and control over the area in which the plain-
tiff fell.
The plaintiff further argued that the following docu-
ments demonstrated genuine issues of material fact: a
Survey and Demolition Plan dated May 8, 2001 (2001
demolition plan) purportedly showing that the owner
defendants undertook substantial renovation and reha-
bilitation work on the property, which the plaintiff con-
tended included constructing the subject walkway and
the entire abutting sidewalk; sidewalk citation and cor-
rection records; and a layout and demolition plan dated
April 25, 2018 (2018 renovation and repair plan), which
the plaintiff contended included repairing walkways
and the abutting sidewalk. In support of his objection
to the owner defendants’ motion for summary judg-
ment, the plaintiff filed his own affidavit, in which he
averred that he had obtained the 2001 demolition plan,
the 2018 renovation and repair plan, and the sidewalk
citation and correction records from the city or its web-
site and part of the 2018 renovation and repair plan from
his employer during the course of his employment.6 The
plaintiff’s affidavit also stated: ‘‘I believe that based
on the evidence submitted, my fall occurred on the
[w]alkway maintained and controlled by [the] defen-
dants and/or their agents, and that their negligence
caused the hazardous condition that resulted in my
substantial injuries.’’ He also submitted other docu-
ments as exhibits in support of his objection to the
owner defendants’ motion for summary judgment.
In his objection to the design defendants’ motion for
summary judgment, which was not accompanied by
any affidavits or exhibits, the plaintiff asserted that
genuine issues of material fact included: whether the
design defendants, having been contracted to repair
and renovate the walkway and abutting sidewalk,
engaged in a positive act over the abutting sidewalk;
whether the design defendants had possession and con-
trol over the walkway and/or abutting sidewalk;
whether the design defendants, through their repair and
renovation work on the walkway and abutting sidewalk,
created the hazardous condition that caused the plain-
tiff’s trip and fall; whether the design defendants failed
to warn the plaintiff of the hazardous condition that
they knew or should have known about; and the extent
and scope of the hazardous condition, whether it was
the entire walkway and its steep slope, or limited to
the end slab of the walkway with its raised lip. The
plaintiff also asserted that the design defendants failed
to warn him of the hazardous condition and argued that
the design defendants had failed to respond to this
allegation of negligence.
On July 7, 2021, the defendants filed replies to the
plaintiff’s objections. The owner defendants argued that
the plaintiff’s affidavit was insufficient to authenticate
the documents that he filed as exhibits, which contained
hearsay, and that the affidavit was inadmissible to the
extent that the plaintiff asserted, without personal
knowledge, that he ‘‘believe[d]’’ that he fell on property
‘‘maintained or controlled by the defendants.’’ The
owner defendants further argued that the plaintiff had
failed to plead any alleged defect in the slope of the
walkway or any positive acts of the defendants. The
design defendants reiterated these arguments and addi-
tionally argued that, even if the court determined that
the exhibits filed in support of the plaintiff’s objection
and affidavit were admissible, the exhibits failed to
demonstrate a genuine issue of material fact.
Oral argument on the motions for summary judgment
was scheduled for July 7, 2021. On that date, the parties
appeared before the court and the plaintiff’s counsel
orally requested an additional two week continuance
of oral argument and to file a surreply brief.7 The court
granted the plaintiff’s requests and the defendants’
ensuing request to file an additional surreply following
the plaintiff’s surreply. The court rescheduled oral argu-
ment for August 12, 2021.
In his surreply, the plaintiff not only argued that his
original submissions were sufficient to demonstrate a
genuine issue of material fact, but he also submitted
his amended affidavit together with copies, certified
by city officials, of the 2001 demolition plan, the 2018
renovation and repair plan, and the sidewalk citation
and correction records. With respect to his complaint,
he argued in his surreply that the operative complaint
alleged that the entire walkway constituted the hazard-
ous condition and that the defendants had engaged in
positive acts, but he also filed a request to amend his
complaint to ‘‘conform such allegations to the evidence
recently discovered . . . that the defendants did in fact
construct the abutting sidewalk, walkway, and maintain
them.’’8 Last, he noted in his surreply that he had sought
to depose the owner defendants’ expert, but that the
owner defendants had filed a motion for protective
order. In his surreply directed to the design defendants,
the plaintiff additionally argued that these defendants
knew of the hazardous condition as evidenced by their
plans including a correction to the slope of the abutting
sidewalk and walkway. The plaintiff argued that the
design defendants failed to adequately identify and
warn the plaintiff of the hazard.
The defendants filed surreplies to the plaintiff’s surre-
ply. The owner defendants reiterated that there was no
genuine issue of material fact that the plaintiff’s claimed
fall occurred on a city sidewalk. The design defendants
argued, inter alia, that they did not ‘‘have a duty of care
to identify hazardous conditions outside the property
boundaries,’’ i.e., on the public sidewalk. They further
argued that the 2018 renovation and repair plan is dated
after the date of the plaintiff’s alleged fall and, therefore,
it could not form the basis of any positive act on behalf
of the design defendants. Oral argument was held on
August 12, 2021.
On October 14, 2021, the court granted the defen-
dants’ motions for summary judgment, rendering sum-
mary judgment in favor of the defendants on all counts.
In its memorandum of decision, the court first deter-
mined that the defendants had satisfied their initial
burden as movants for summary judgment. The court
discussed the owner defendants’ request for admission
and the plaintiff’s failure to respond thereto. The court
determined that ‘‘it has been conclusively established
that the photo[graph] marked in exhibit A of the request
for admission fairly and accurately depicts the location
of the plaintiff’s fall and the alleged defect is contained
within the red encircled area of the photograph.’’ The
court also summarized Cyr’s affidavit, in which Cyr
averred that the ‘‘area within the red circle in [e]xhibit
A of the defendant’s request for admission is not private
property of the abutting landowner, but rather is a pub-
lic sidewalk.’’ The court additionally noted Cyr’s deter-
mination that the ‘‘area within the red circle on the
photograph is owned and maintained by the city of
Hartford, not the abutting landowner.’’ On the basis of
the request for admission and Cyr’s affidavit, the court
determined that the defendants had sustained their bur-
den of demonstrating that ‘‘there is no genuine issue
of material fact that the plaintiff’s alleged fall occurred
in the red-circled area of the request for admission, and
that area is not owned and maintained by the defen-
dants.’’
Having concluded that the defendants met their initial
burden, the court turned to whether the plaintiff had
presented evidence establishing the existence of a dis-
puted factual issue. The court first considered the plain-
tiff’s affidavit, which it found flawed in two ways. First,
the court found that ‘‘the plaintiff’s affidavit is self-
serving as it is made by a party to the action’’ and,
therefore, was insufficient to create a genuine issue of
material fact. Second, the court stated that the plaintiff’s
averment that his fall ‘‘occurred on the walkway main-
tained and controlled by [the] defendants and/or their
agents, and that their negligence caused the hazardous
condition,’’ amounted to a conclusory statement that
lacked evidentiary support.
Next, the court turned to the exhibits submitted by
the plaintiff. Specifically, the court considered the 2001
demolition plan, the 2018 renovation and repair plan,
and the sidewalk citation and correction records.9 The
court assumed, without deciding, that the exhibits sub-
mitted together with the plaintiff’s surreply were ‘‘suffi-
cient to consider in support of the plaintiff’s objection,’’
but found that such evidence failed to ‘‘establish a genu-
ine issue of material fact regarding the location of the
plaintiff’s fall, and who owns or controls the area where
the plaintiff fell.’’ The court viewed the exhibits in light
of the plaintiff’s arguments that the 2001 demolition
plan showed that the defendants constructed the walk-
way and abutting sidewalk and that the 2018 renovation
and repair plan showed plans to correct the slope of
the walkway meeting the abutting sidewalk. The court
found that the plaintiff’s arguments were flawed
‘‘because these defects, modifications, and/or correc-
tions are not apparently clear from the face of the plans,
and there is no affidavit from an individual with per-
sonal knowledge of the area that can attest to what the
plaintiff argues is contained with the plans. Without
more, these are merely the plaintiff’s own interpreta-
tions and assertions of the 2001 and 2018 plans and
cannot create any genuine issue of material fact regard-
ing the plaintiff’s fall.’’
With respect to the sidewalk citation and correction
records, the court stated that the records showed that
the owner defendants were issued citations related to
other addresses along Park Terrace, but that the record
provided by the plaintiff lacked any reference to the
property at issue, 286 and 290 Park Terrace. Thus, the
court determined that such evidence ‘‘[did] not create
a genuine issue of fact as to whether there was a defect,
or whether the defendants were responsible for keeping
the abutting sidewalk at 286 and 290 Park Terrace in
a safe condition.’’ Having reviewed the evidence submit-
ted by the plaintiff, the court determined that there was
no genuine issue of material fact.
The court next set forth the general rule that abutting
landowners generally are not liable for injuries sus-
tained on a defective public sidewalk. The court then
addressed the plaintiff’s argument that the exception
to the general rule, in situations in which the defect in
the sidewalk was caused by an affirmative or positive
act of the landowner, applied.10 Specifically, the plaintiff
had argued ‘‘that the defendants constructed both the
walkway and abutting sidewalk in 2001 and that the
defendant ha[d] maintained, repaired, and renovated
both the walkway and the abutting sidewalk.’’ The court
rejected this argument on the basis that the plaintiff
failed to allege in his complaint that the defendants
constructed the walkway or abutting sidewalk.
Accordingly, the court rendered judgment in favor of
the defendants. This appeal followed. Additional facts
and procedural history will be provided as necessary.
I
With respect to the trial court’s decision granting the
defendant’s motion for summary judgment, the plaintiff
claims that the court improperly determined that no
genuine issues of material fact existed. Specifically, the
plaintiff contends that there are genuine issues of mate-
rial fact with respect to the scope and extent of the
physical characteristics and location of the hazardous
condition; whether the abutting sidewalk was a munici-
pal sidewalk, whose obligation it was to maintain the
sidewalk, and who was in possession and control over
the location of the plaintiff’s fall;11 and whether the
defendants engaged in positive acts. We disagree with
the plaintiff.
We first set forth the applicable standard of review
and principles of law. ‘‘The standards governing our
review of a trial court’s decision to grant a motion for
summary judgment are well established. Practice Book
[§ 17-49] provides that summary judgment shall be ren-
dered 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 nonmov-
ing party. . . . The party seeking summary judgment
has the burden of showing the absence of any genuine
issue [of] material facts which, under applicable princi-
ples 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 dem-
onstrate 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. . . . When
. . . the trial court draws conclusions of law, our
review is plenary and we must decide whether its con-
clusions are legally and logically correct and find sup-
port in the facts that appear in the record.’’ (Citation
omitted; internal quotation marks omitted.) Robinson v.
Cianfarani, 314 Conn. 521, 524–25, 107 A.3d 375 (2014).
‘‘The essential elements of a cause of action in negli-
gence are well established: duty; breach of that duty;
causation; and actual injury. . . . The existence of a
duty is a question of law and only if such a duty is
found to exist does the trier of fact then determine
whether the defendant violated that duty in the particu-
lar situation at hand. . . . Because the court’s determi-
nation of whether the defendant owed a duty of care
to the plaintiff is a question of law, our standard of
review is plenary.’’ (Citation omitted; internal quotation
marks omitted.) McFarline v. Mickens, 177 Conn. App.
83, 92, 173 A.3d 417 (2017), cert. denied, 327 Conn. 997,
176 A.3d 557 (2018).
‘‘As a general rule, Connecticut law holds that an
abutting landowner is not liable for injuries sustained
by a traveler on the highway that were caused by the
defective condition of a public sidewalk. . . . There
are two exceptions to the general rule: (1) where a
statute or ordinance shifts liability to the landowner to
keep the sidewalk in a safe condition . . . and (2)
where the affirmative or positive act of the landowner
causes the defect in the sidewalk.’’ (Citations omitted.)
Pollard v. Bridgeport, 204 Conn. App. 187, 198, 252 A.3d
869, cert. denied, 336 Conn. 953, 251 A.3d 992 (2021);
see also Wilson v. New Haven, 213 Conn. 277, 280, 567
A.2d 829 (1989).
A
The plaintiff first contends that there existed genuine
issues of material fact as to the extent and location of
the defective condition causing his alleged fall. Specifi-
cally, he argues that ‘‘the hazardous condition was not
just the lip causing the fall, but the steep slope of the
entire walkway that contributed to the defective raised
lip on the slab.’’ The plaintiff points to the allegations
of his complaint that his injuries were caused by the
defendants’ failure ‘‘to lower the walkway so that it
was level with the abutting sidewalks.’’ The plaintiff
contends that the court ignored his allegations and sup-
porting evidence, including photographs that depicted
the steep slope and documentary evidence suggesting
that the defendants constructed the walkway. The plain-
tiff argues in the alternative that, even if the entire
walkway does not constitute the hazardous condition,
the ‘‘concrete slab with the raised lip . . . is the hazard-
ous condition.’’ The plaintiff contends that he submitted
evidence that the slab extends onto the owner defen-
dants’ property and, thus, there exist genuine issues of
material fact as to whether the slab is the hazardous
condition, the length of the slab, and whether it extends
onto the owner defendants’ property. The design defen-
dants maintain that the location of the plaintiff’s
claimed fall was conclusively established by the request
for admission and the owner defendants further
respond that the plaintiff’s arguments as to the slab and
entire walkway are therefore irrelevant. We agree with
the defendants.
As noted previously, the owner defendants served
the plaintiff with a request for admission that included
an attached photograph and requested that the plaintiff
admit, inter alia, that the area encircled in red in that
photograph ‘‘fairly and accurately depicts . . . the
alleged proximately causative defect of the claimed fall
as asserted in the complaint . . . .’’ The plaintiff did
not respond to the request. Pursuant to Practice Book
§ 13-23 (a), the plaintiff’s failure to respond to the
request for admission resulted in his admission of the
matter contained therein. See Bank of America, N.A.
v. Kydes, 183 Conn. App. 479, 488, 193 A.3d 110 (‘‘[t]he
defendant’s failure to timely answer or object to the
requests for admission pursuant to § 13-23 (a), and his
subsequent failure to ask the court for permission to
withdraw or amend those admissions pursuant to [Prac-
tice Book] § 13-24 (a), resulted in his admission of all
the matters as to which admissions were requested’’),
cert. denied, 330 Conn. 925, 194 A.3d 291 (2018). Specifi-
cally, it was admitted that the area encircled in red in
the photograph attached to the request for admission
depicted the alleged defect that proximately caused the
plaintiff’s claimed fall. At no time did the plaintiff seek
permission to withdraw or amend the admission, and
the trial court appropriately recognized in its memoran-
dum of decision that ‘‘it has been conclusively estab-
lished that the photo[graph] . . . fairly and accurately
depicts the location of the plaintiff’s fall and the alleged
defect is contained with the red encircled area of the
photograph.’’
The plaintiff contends in his reply brief that the defec-
tive condition was not established by the request for
admission. He maintains that the admission established,
at most, the location of the fall, not the defective condi-
tion that caused the fall. We reject the plaintiff’s attempt
to minimize the effect of his admission and conclude
that the court properly relied on the admission as con-
clusively establishing that the alleged defect is con-
tained within the red encircled area of the photograph,
which does not encompass the whole slab or the entire
walkway.12 Accordingly, the court properly concluded
that there were no genuine issues of material fact with
respect to the extent and location of the defective condi-
tion causing the plaintiff’s alleged fall.
B
The plaintiff next contends that the evidence that he
submitted ‘‘unequivocally created an issue of material
fact as to whether the abutting sidewalk was a munici-
pal sidewalk or was owned by the abutting owners
. . . . Moreover, the evidence similarly created an
issue regarding whose responsibility it was to maintain
the abutting sidewalk.’’ In support of this argument, the
plaintiff relies on various sidewalk citations, which he
contends ‘‘shows that both the city, along with [the
owner defendants], determined that the legal obligation
to maintain the abutting sidewalk belonged to [the
owner defendants].’’ He also points to the 2001 demoli-
tion plan as showing that the owner defendants ‘‘con-
structed the abutting sidewalk,’’ and the 2018 renova-
tion and repair plan as showing that the design
defendants negligently designed the walkway. The
owner defendants respond that, because the sidewalk
citations do not relate to the property at issue, the
citations are irrelevant and do not create a genuine
issue of material fact. They further respond that the
2001 demolition plan and 2018 renovation and repair
plan are ‘‘unclear’’ and ‘‘not self-evident’’ and the trial
court properly determined that these documents did
not create a genuine issue of material fact.13 We agree
with the owner defendants.
The owner defendants submitted with their motion
for summary judgment Cyr’s affidavit, in which he
averred that the ‘‘area within the red circle on that
photograph, Exhibit A, is not private property of the
abutting owner; rather, it is very clearly public sidewalk
based on the Survey Map. The area encircled in red on
Exhibit A is within the public right-of-way. . . . That
area within the red circle on the photograph, is owned
and maintained by the [c]ity of Hartford, and not by
the abutting landowner.’’ (Emphasis omitted.) The trial
court determined, and we agree, that this evidence,
together with the plaintiff’s admission as to the location
and proximate cause of his claimed fall, submitted by
the owner defendants satisfied their initial burden, as
the movants for summary judgment, to establish the
nonexistence of a genuine issue of material fact as to
ownership and maintenance of the sidewalk.
The burden then shifted to the plaintiff, as the non-
moving party, to demonstrate the existence of some
disputed factual issue. Fiano v. Old Saybrook Fire Co.
No. 1, Inc., 332 Conn. 93, 101, 209 A.3d 629 (2019)
(‘‘[o]nce the moving party has met its burden . . . the
opposing party must present evidence that demon-
strates the existence of some disputed factual issue’’).
The plaintiff attempted to satisfy his burden by submit-
ting the sidewalk citation and correction records, the
2001 demolition plan, and the 2018 renovation and
repair plan. As the trial court recognized, the sidewalk
citation and correction records relate to other proper-
ties on Park Terrace, but do not involve the property
at issue. We agree with the trial court that ‘‘[w]hether
the defendants were issued citations for other proper-
ties along Park Terrace does not create a genuine issue
of fact as to whether . . . the defendants were respon-
sible for keeping the abutting sidewalk at 286 and 290
Park Terrace in a safe condition.’’14
With respect to the 2001 demolition plan, the plaintiff
argues that ‘‘[o]nly a cursory review without any techni-
cal expertise reveals [that] the walkway and abutting
sidewalk were constructed by [the owner defendants].’’
He represents that on page one of the 2001 demolition
plan, the walkway is not present, but that on page C-
1 of the demolition plan, the walkway area ‘‘shows dots’’
and there are also ‘‘dotted areas’’ ‘‘denoting demolished
or removed.’’ He represents that page two of the 2001
demolition plan shows that the walkway was installed
after the demolition. He concludes: ‘‘[A] cross-reference
on page one (demolition and removal work) and page
two (new work) shows [that the owner defendants]
demolished the previous driveway areas and installed
the walkways between each building.’’
Additionally, the plaintiff argues that the 2001 demoli-
tion plan shows that the owner defendants also con-
structed the abutting sidewalk. He argues: ‘‘The 2001
demolition plan also shows [that the owner defendants]
constructed the abutting sidewalk. A review of page
one of the 2001 demolition plan clearly shows the dots
across the abutting sidewalk which denotes demolished
and removed, as with the walkways. . . . This is high-
lighted. . . . Moreover, the abutting sidewalk is
denoted ‘All Conc. Walks and Aprons to be Demolished
and Removed (As Shown, Typical).’ . . . This is also
highlighted. . . . This shows the abutting sidewalk,
including aprons, were removed. . . .
‘‘Page two of the demolition plan also clearly shows
that a new abutting sidewalk with aprons was con-
structed as part of the new work. Indeed, the plans
denote ‘4’’ conc. Walk’, the plans for the thickness of
the concrete of the abutting sidewalk. . . . This also
is highlighted. . . . Page two of the 2001 demolition
plans also denoted new curbing on the abutting side-
walk and new aprons, also highlighted. . . . On page
two, the New Child Safe Surfacing is also denoted on
the abutting sidewalk. . . . [The owner defendants]
therefore also constructed the entire abutting side-
walk.’’ (Citations omitted; emphasis omitted.)
We first note that the plaintiff’s argument in his appel-
late brief cites and refers to uncertified reproductions
of portions of the 2001 demolition plan contained in
the appendix to his appellate brief. Further, these uncer-
tified reproductions contain highlighting and handwrit-
ten notations.15 In its memorandum of decision, the trial
court stated that all of its references were to the exhibits
contained in docket entry number 150.00. None of those
exhibits contain highlighting or handwritten notations.
Like the trial court, we consider the exhibits contained
in docket entry number 150.00 for purposes of determin-
ing whether the plaintiff satisfied his burden of demon-
strating a genuine issue of material fact and we do not
consider the highlighted documents or the plaintiff’s
arguments premised thereon.
Having thoroughly examined the 2001 demolition
plan, we agree with the trial court that it does not
demonstrate a genuine issue of material fact. First,
much of the document contains print so small and
blurry as to be practically unreadable. Aside from the
readability failure, the greater concern is what can be
demonstrated by the document alone. First, the text,
some of which is merely abbreviations, fails to explicate
these technical design plans. The plaintiff’s counsel
points to dotted areas supposedly depicting demolition
and other text on the plan purportedly indicating con-
struction. However, the representations of the plaintiff’s
counsel as to what is depicted in and the significance
of the text on the 2001 demolition plan are not evidence.
See Hudson City Savings Bank v. Hellman, 196 Conn.
App. 836, 863, 231 A.3d 182 (2020) (representations of
counsel that barcode and numbers on envelope consti-
tuted evidence that envelope was sent by regular mail
were not evidence); see also Brusby v. Metropolitan
District, 160 Conn. App. 638, 652 n.12, 127 A.3d 257(2015) (‘‘[t]his court, as well as our Supreme Court,
repeatedly has stated that representations of counsel
are not evidence’’ (internal quotation marks omitted)).
The owner defendants’16 motion for summary judg-
ment was supported by an expert affidavit, but the
plaintiff did not provide any expert opinion in response
to the averments of the owner defendants’ expert to
establish any genuine issue of material fact. See Kout-
soukos v. Toyota Motor Sales, U.S.A., Inc., 137 Conn.
App. 655, 662–64, 49 A.3d 302 (where defendants’ expert
averred that airbag responded properly to accident,
summary judgment was appropriate because plaintiff
failed to offer expert opinion demonstrating airbag was
defective), cert. denied, 307 Conn. 933, 56 A.3d 714(2012). Nor did the plaintiff support his opposition to
summary judgment with affidavits17 or deposition testi-
mony of fact witnesses with personal knowledge of
the plans or the property. See Salamone v. Wesleyan
University, 210 Conn. App. 435, 443, 270 A.3d 172 (2022)
(‘‘It is not enough . . . for the opposing party merely
to assert the existence of such a disputed issue. Mere
assertions of fact . . . are insufficient to establish the
existence of a material fact and, therefore, cannot refute
evidence properly presented to the court. . . . [T]ypi-
cally [d]emonstrating a genuine issue requires a show-
ing of evidentiary facts or substantial evidence outside
the pleadings from which material facts alleged in the
pleadings can be warrantably inferred.’’ (Internal quota-
tion marks omitted.)). The trial court determined, and
we agree, that the ‘‘defects, modifications, and/or cor-
rections’’ as argued by the plaintiff, are ‘‘not apparently
clear from the face of the plans.’’ Without some aid,
either in the form of expert opinion or a witness with
personal knowledge, to explain the 2001 demolition
plan, it is insufficient to demonstrate a genuine issue
of material fact.
The 2018 renovation and repair plan, which is con-
tained in docket entry number 150.00 as exhibits B and
E, likewise does not create a genuine issue of material
fact. First, the portion of the plan labeled ‘‘Exhibit B’’
is dated April 25, 2018, and the portion of the plan
labeled ‘‘Exhibit E’’ is dated June 20, 2018—both dates
are subsequent to the date of the plaintiff’s alleged fall.
Second, the 2018 renovation and repair plan suffers
from the same defects as the 2001 demolition plan.
Although the document titles are legible, none of the
extensive textual notes or legends on the documents
are legible. Like the 2001 demolition plan, the 2018
renovation and repair plan is unaccompanied by any
affidavit to aid in its utility or interpretation.
The plaintiff contends that ‘‘our courts have held that
maps and surveys alone are sufficient to create an issue
of material fact without any affidavit of a surveyor or an
individual with personal knowledge of such surveys.’’18
The Superior Court decisions cited by the plaintiff,
which are not binding precedent on this court, are also
factually distinguishable. In Marone v. Coric, Superior
Court, judicial district of New London, Docket No. CV-
XX-XXXXXXX (February 18, 2011), the court recognized,
without the submission of an affidavit, that a survey of
a piece of property showed that the property contained
17.65 acres rather than 21 acres. See also Dufford v.
Jones-Richards, Inc., Superior Court, judicial district of
Hartford, Docket No. CV-XX-XXXXXXX (January 8, 2009)
(survey showed acreage of property was 6.4 acres more
or less); Danbury v. Novella, Superior Court, judicial
district of Danbury, Docket No. 318827 (April 17, 1996)
(noting that land was designated as open space on tax
maps). The information needed to be gleaned from the
documents in the Superior Court decisions cited by the
plaintiff is significantly less complex than the informa-
tion the plaintiff seeks the court to extract and utilize
from the exhibits he has filed. Moreover, there is no
indication in those cases that there were any readability
concerns with the documents.
Accordingly, we agree with the trial court that the
plaintiff failed to present evidence demonstrating a gen-
uine issue of material fact as to the ownership or mainte-
nance of the area in which he allegedly fell.
C
The plaintiff’s next contention is that there exists a
genuine issue of material fact as to whether the owner
defendants and the design defendants engaged in posi-
tive acts involving the area in which the plaintiff fell.
Specifically, relying on the 2001 demolition plan, the
plaintiff contends that the owner defendants con-
structed the walkway and abutting sidewalk and, rely-
ing on the 2018 renovation and repair plan, argues that
the owner defendants contracted with the design defen-
dants to design substantial repairs and renovations to
the property, including the walkway and abutting side-
walk. The defendants respond that the operative com-
plaint does not allege any positive acts. We agree with
the defendants.
As noted previously, the general rule is that ‘‘an abut-
ting landowner is not liable for injuries sustained by a
traveler on the highway that were caused by the defec-
tive condition of a public sidewalk. . . . There are two
exceptions to the general rule: (1) where a statute or
ordinance shifts liability to the landowner to keep the
sidewalk in a safe condition . . . and (2) where the
affirmative or positive act of the landowner causes the
defect in the sidewalk.’’ (Citations omitted.) Pollard v.
Bridgeport, supra, 204 Conn. App. 198. In order to fall
within the second exception, the plaintiff was required
to assert allegations that the defendants caused the
defect by performing a positive act. See Cyr v. VKB,
LLC, 194 Conn. App. 871, 880, 222 A.3d 965 (2019); see
also McFarline v. Mickens, supra, 177 Conn. App. 86–88
(where plaintiff alleged that she tripped and fell because
of defect consisting of ‘‘a broken and cracked concrete
sidewalk and adjacent curb with grass growing wildly
through the crack and broken sections,’’ court properly
rendered summary judgment in absence of any allega-
tions in complaint that defendant created wildly grow-
ing grass through positive act (internal quotation marks
omitted)).
This court’s decision in Cyr v. VKB, LLC, supra, 194
Conn. App. 871, guides our analysis. In that case, the
plaintiff had alleged that while walking on a public
sidewalk, she tripped on ‘‘an approximately one and
one-half inch lip between two sidewalk segments’’ and
fell, sustaining injuries. Id., 874. The plaintiff com-
menced an action against five defendants, including the
owners of the property abutting the sidewalk, alleging
negligence, among other causes of action. Id., 874–75.
The plaintiff asserted alternative theories as to the cre-
ation of the alleged defect. Id. In counts four and five
of her complaint, the plaintiff alleged that the claimed
defect ‘‘developed as a result of the settling of one
adjacent segment.’’ (Internal quotation marks omitted.)
Id. In counts three, six, and seven of her complaint, the
plaintiff alleged that certain defendants had ‘‘con-
structed a sidewalk on the property with a resulting
approximately 1 1/2’’ lip between the sidewalk segments
it installed and the sidewalk on the adjoining property.’’
(Internal quotation marks omitted.) Id., 881. The defen-
dants filed a motion for summary judgment in which
they argued that there was no evidence ‘‘that the defen-
dants created the alleged defect so as to fall within an
exception to the general rule that liability remains with
the municipality in cases involving public sidewalk
defects.’’ Id., 875–76. The court granted the motion for
summary judgment. Id., 876.
On appeal, this court first considered the counts in
which the plaintiff had alleged settling of the sidewalk
and determined that those counts lacked any allegation
that a ‘‘positive act on the part of the defendants caused
the settling of the sidewalk segment.’’ Id., 882. This
court explained that ‘‘the allegation that the defect in
the sidewalk ‘developed as a result of the settling of
one adjacent segment’ suggests only that the alleged
settling resulted from nature and the passage of time,
which is insufficient as a matter of law to impose a
duty on an abutting landowner.’’ Id. Thus, this court
concluded that those counts were legally insufficient
and the trial court properly had rendered summary judg-
ment thereon. Id.
This court next examined the counts in which the
plaintiff had alleged that the defendants ‘‘constructed
a sidewalk on the property with a resulting approxi-
mately 1 1/2’’ lip between the sidewalk segments it
installed and the sidewalk on the adjoining property.’’
(Internal quotation marks omitted.) Id., 883. This court
determined that this allegation ‘‘may be reasonably
viewed as alleging that [the defendants] constructed
the sidewalk with the alleged defect (i.e., that the
alleged defect resulted from the construction of the
sidewalk).’’ Id., 884. Because the plaintiff had alleged
that the defendants constructed the sidewalk, the defen-
dants, in order to prevail on their motion for summary
judgment, were required ‘‘to proffer evidence that either
they did not construct the sidewalk or that they con-
structed the sidewalk without the alleged defect.’’ Id.,
885. The defendants submitted evidentiary materials
with their reply brief, and the plaintiff did not object
to the court’s consideration of those materials. Id., 886
n.5. This court concluded that the materials submitted
by the defendants did not establish the nonexistence of
a genuine issue of material fact, because such materials
lacked ‘‘any affidavits or other supporting documents
that demonstrate that the defendants either did not
construct the sidewalk or constructed the sidewalk
without the alleged defect.’’19 Id., 885–86.
In the present case, the plaintiff did not allege in his
operative complaint that the owner defendants or the
design defendants constructed the walkway or abutting
sidewalk nor did he allege that they undertook any other
positive act with respect to the walkway or abutting
sidewalk. Instead, he alleged that the defendants failed
to take affirmative steps to remediate the defective
condition. For example, the plaintiff alleged that the
defendants ‘‘failed to lower the walkway’’ and ‘‘failed
to shave down the slab of the walkway so it was not
higher than the abutting sidewalks.’’ The only allegation
approaching a positive act is his allegation that the
defendants ‘‘failed to position the slab of the walkway
so that it was level with the abutting sidewalks.’’20 The
allegation that there exists a walkway that is raised
higher than the abutting sidewalk cannot be construed
as alleging that the defendants, through a positive act,
caused the defect in the sidewalk.21 With respect to the
design defendants, the plaintiff also alleged only the
failure to take affirmative steps with respect to the
design, inspection, and remedy of the alleged defect.
Like his claims against the owner defendants, the plain-
tiff’s claims against the design defendants fail to allege
positive acts.22 Therefore, the plaintiff’s claims do not
fall within the positive act exception to the common-
law rule that an abutting landowner is under no duty to
keep the public sidewalk in front of its property safe.23
II
The plaintiff’s second claim on appeal is that the court
improperly denied his request to amend his revised
complaint. We disagree.
The following additional procedural history is rele-
vant to this claim. As noted previously, on July 7, 2021,
the parties appeared before the court for oral argument
on the defendants’ motions for summary judgment,
which had been briefed fully by all parties. The plain-
tiff’s counsel, at the commencement of the scheduled
argument, orally requested a two week continuance of
the oral argument and also requested permission to
file a surreply, which requests the court granted. The
plaintiff’s counsel did not alert the court at that time
that he intended to file a request to amend his complaint.
Two weeks later, on July 21, 2021, the plaintiff filed his
surreply briefs and also filed a request to amend his
complaint and memorandum in support of that request.
In his request, he represented that he sought to include
allegations that the owner defendants constructed the
walkway and abutting sidewalk, that the owner defen-
dants repaired and maintained the walkway and abut-
ting sidewalk, that the design defendants ‘‘designed,
oversaw and participated in a substantial renovation of
the property [in] 2018 which included the walkway and
abutting sidewalk,’’ and that the design defendants ‘‘pro-
vided the plaintiff certain surveys while the plaintiff
was employed by a subcontractor of the defendants,
which the plaintiff relied on during the scope of his
employment, and such surveys failed to adequately
warn him of the hazardous condition on the property
which caused his injuries.’’ The defendants objected to
the request to amend the complaint, and the plaintiff
filed a reply. The owner defendants subsequently filed
a surreply.
On October 13, 2021, the court denied the plaintiff’s
request to amend his complaint. In its order, the court
found that ‘‘there would clearly be great prejudice to
the defendants if the plaintiff was permitted to amend
the complaint to allege new theories of liability against
the defendants following both the filing and oral argu-
ment of the pending motions for summary judgment.
The undue delay is obvious since even a cursory review
of the requested revisions shows new theories of liabil-
ity alleged against the defendants. Such new theories
would necessitate discovery and resultant delay in con-
cluding this matter either by summary judgment or ulti-
mately at trial.’’ The court concluded, given the history
of the case, that it would be unjust to permit the plaintiff
to further delay the matter. Accordingly, it denied the
request to amend.
On appeal, the plaintiff argues that the court abused
its discretion in denying his request to amend because
he ‘‘did not assert new counts of liability, only allega-
tions that conform to the original allegations of posses-
sion and control over the area where [he] fell.’’ He
contends that the delay was not unreasonable, in that
he was unable to obtain the documents from the city
‘‘due to the limited access to town hall in 2020 during
[the] pandemic.’’
We first set forth our standard of review. ‘‘Our stan-
dard of review of the [plaintiff’s] claim is well defined.
A trial court’s ruling on a motion of a party to amend
its complaint will be disturbed only on the showing of
a clear abuse of discretion. . . . Whether to allow an
amendment is a matter left to the sound discretion of
the trial court. [An appellate] court will not disturb a
trial court’s ruling on a proposed amendment unless
there has been a clear abuse of that discretion. . . . It
is the [plaintiff’s] burden in this case to demonstrate
that the trial court clearly abused its discretion. . . .
‘‘A trial court may allow, in its discretion, an amend-
ment to pleadings before, during, or after trial to con-
form to the proof. . . . Factors to be considered in
passing on a motion to amend are the length of the
delay, fairness to the opposing parties and the negli-
gence, if any, of the party offering the amendment. . . .
The essential tests are whether the ruling of the court
will work an injustice to either the plaintiff or the defen-
dant and whether the granting of the motion will unduly
delay a trial.’’ (Internal quotation marks omitted.)
Wahba v. JPMorgan Chase Bank, N.A., 200 Conn. App.
852, 241 A.3d 706 (2020), cert. denied, 336 Conn. 909,
244 A.3d 562 (2021). ‘‘The trial court is in the best
position to assess the burden which an amendment
would impose on the opposing party in light of the
facts of the particular case.’’ (Internal quotation marks
omitted.) Mastrolillo v. Danbury, 61 Conn. App. 693,
696, 767 A.2d 1232 (2001).
The plaintiff has failed to demonstrate that the court
abused its discretion in disallowing the amendment.24
When the plaintiff filed his request to amend after the
scheduled date of oral argument, the defendants’
motions for summary judgment had been briefed. The
trial court found that permitting the amendment would
prejudice the defendants in that it would alter the sub-
stance of the plaintiff’s claim while the motions for
summary judgment were pending. The court deter-
mined that the new theories of liability would require
additional discovery and occasion further delay. In light
of the delay and likelihood that the amendment would
prejudice the defendants, we conclude that the court’s
ruling did not reflect an abuse of its discretion.
III
In one paragraph of his principal appellate brief, the
plaintiff claims that the court abused its discretion in
denying his motion to preclude the expert witness affi-
davit offered by the owner defendants in support of
their motion for summary judgment. We conclude that
the plaintiff’s claim is inadequately briefed.
‘‘We repeatedly have stated that [w]e are not required
to review issues that have been improperly presented
to this court through an inadequate brief. . . . Analy-
sis, rather than mere abstract assertion, is required in
order to avoid abandoning an issue by failure to brief
the issue properly. . . . [When] a claim is asserted in
the statement of issues but thereafter receives only
cursory attention in the brief without substantive dis-
cussion or citation of authorities, it is deemed to be
abandoned. . . . For a reviewing court to judiciously
and efficiently . . . consider claims of error raised on
appeal . . . the parties must clearly and fully set forth
their arguments in their briefs.’’ (Citation omitted; inter-
nal quotation marks omitted.) Burton v. Dept. of Envi-
ronmental Protection, 337 Conn. 781, 803, 256 A.3d
655 (2021).
The plaintiff devotes only one paragraph of his princi-
pal brief to this claim. ‘‘Although the number of pages
devoted to an argument in a brief is not necessarily
determinative, relative sparsity weighs in favor of con-
cluding that the argument has been inadequately
briefed.’’ (Internal quotation marks omitted.) Id., 805.
The plaintiff states that ‘‘[t]he trial court erroneously
denied [the plaintiff’s] motion to preclude because [the
Cyr survey] contained numerous errors raising serious
issues of credibility. . . . The discrepancies are dis-
cussed in detail in [the plaintiff’s] motion to preclude.’’
The plaintiff has provided no analysis in support of
this argument. To the extent that the plaintiff seeks to
incorporate by reference any arguments raised in his
motion to preclude, these arguments are inadequately
briefed.25 See Cambridge Mutual Fire Ins. Co. v. Sakon,
132 Conn. App. 370, 383 n.6, 31 A.3d 849 (2011) (argu-
ments from opposition to motion for summary judg-
ment incorporated by reference into appellate brief are
deemed inadequately briefed), cert. denied, 304 Conn.
904, 38 A.3d 1202 (2012). Accordingly, we decline to
review the plaintiff’s claim.
The judgment is affirmed.
In this opinion the other judges concurred.
1
On July 9, 2020, the design defendants filed requests to revise the plain-
tiff’s original complaint. On November 1, 2020, the design defendants moved
for entry of nonsuit against the plaintiff for failure to file a responsive
pleading to their requests to revise, which motion for nonsuit was denied
by the court after the plaintiff had filed the revised complaint.
2
The defendants filed answers including special defenses. The plaintiff
filed a certificate of closed pleadings on February 22, 2021. Three days later,
on February 25, 2021, the plaintiff, despite having filed a certificate of closed
pleadings, filed replies to the defendants’ special defenses.
3
On October 20, 2020, the owner defendants served the plaintiff with a
first request for admission, in which they incorrectly represented that the
photograph marked as exhibit A was dated June 24, 2018. On November
17, 2020, the plaintiff objected to the first request for admission on the basis
that ‘‘the dates are different.’’ Thereafter, the owner defendants served the
relevant request for admission.
4
Practice Book § 13-23 provides in relevant part: ‘‘(a) Each matter of
which an admission is requested is admitted unless, within thirty days after
the filing of the notice required by Section 13-22 (b), or within such shorter
or longer time as the judicial authority may allow, the party to whom the
request is directed files and serves upon the party requesting the admission
a written answer or objection addressed to the matter, signed by the party
or by his attorney. . . .’’
5
On May 21, 2021, the deadline contained in the scheduling order for
filing his response to the motions for summary judgment, the plaintiff filed
a motion for extension of time. Over the defendants’ objections, the court
granted the plaintiff an extension until July 2, 2021. Oral argument on the
motions originally was scheduled for June 29, 2021, but was continued, to
allow time for the objections, until July 7, 2021, leaving the defendants one
business day to file their reply briefs.
6
The plaintiff averred: ‘‘When I tripped and fell, I was an invitee for testing
and data collection purposes for my employer Home Energy Technologies
(HERS Rating firm), which was contracted by the [d]efendants (Crosskey
and Mutual Housing Association of Greater Hartford) for rating and certifica-
tion services of the [fourteen] buildings that are known as the Park Terrace
II development . . . . I relied on building plans drafted by [the] defendant
Crosskey . . . and site surveys drafted by [the] defendant TO Design to
verify, test and inspect various stages of the renovation and repair process
of the [fourteen] properties. I was not warned by the [d]efendants of the
hazardous condition on the walkway.’’
7
In support of his request for a continuance, the plaintiff’s counsel repre-
sented that the defendants’ reply briefs had been filed on the morning of
the hearing and he would like the opportunity to file a surreply; he did not
have the opportunity to review what the defendants had filed because he
attended a funeral for a family member of a paralegal from his office and
also experienced a death in his own family; and that his understanding was
that the scheduled proceeding was for a status conference, not oral argument
on the motions for summary judgment. Counsel for the owner defendants
objected to the requested continuance, noting that he was prepared to argue
the motion despite having been afforded only one business day to file his
reply brief; see footnote 5 of this opinion; and that the plaintiff’s counsel
had not contacted him about the continuance request. The court granted
the requested continuance on the basis of the deaths experienced by the
plaintiff’s counsel and granted his request for time to file a surreply.
8
All defendants objected to the request for leave to amend the complaint,
the plaintiff filed a reply, and the court denied the request to amend. See
part II of this opinion. On August 11, 2021, the plaintiff also filed a motion
to preclude Cyr’s expert witness affidavit and memorandum of law in support
thereof, which motion the court denied. See part III of this opinion.
9
The court also considered the unofficial property record cards for 286-
288 Park Terrace and 290 Park Terrace, which the plaintiff submitted as
exhibit D to his affidavit. The court noted that ‘‘[t]he plaintiff makes no
arguments in any of his filings regarding how these property cards create
a genuine issue of material fact.’’
10
The court noted that the plaintiff did not claim that the other exception
to the general rule, where a statute or ordinance shifts liability to the land-
owner, was applicable.
11
Although the plaintiff briefs possession and control separately, we dis-
cuss the purported issues surrounding ownership, maintenance, and posses-
sion and control together. See part I B of this opinion.
12
Last, we note that the plaintiff’s contention that it was the entire walk-
way, or, in the alternative, the entire slab, that constituted the defect is
unavailing for additional reasons, discussed further in part I B and C of this
opinion. First, the plaintiff did not plead any allegations regarding a claimed
‘‘steep slope’’ of the walkway. Second, the plaintiff’s arguments relative to
the slab are premised entirely on the documents submitted in support of
his surreply to the defendant’s motion for summary judgment, which we
determine are insufficient to demonstrate genuine issues of material fact.
13
The design defendants argue, inter alia, that neither the 2001 demolition
plan nor the sidewalk citation and correction records create a genuine issue
of material fact as to the design defendants. Specifically, they contend that
the 2001 demolition plan was not prepared by the design defendants and
note that the plaintiff does not allege that they were involved in or prepared
the 2001 demolition plan. Similarly, with respect to the sidewalk citation
and correction records, the design defendants argue that they do not create
a genuine issue of material fact because the plaintiff has not alleged that
they had any involvement with the property in the 1990s.
14
The plaintiff argues that ‘‘other courts have held that similar sidewalk
citations, in itself, create an issue of material fact as to ownership and
maintenance responsibilities.’’ The plaintiff cites only one unpublished case
issued by the Appellate Division of the Superior Court of New Jersey, which
involved the question of ‘‘whether a condominium association is obligated
to indemnify a first-floor commercial unit owner in the building for sums
that the commercial entity paid to settle claims brought by a pedestrian
who tripped on an uneven portion of the adjacent public sidewalk.’’ Na v. 369
First Street Condominium Assn., Superior Court of New Jersey, Appellate
Division, Docket No. A-2971-14T3 (May 5, 2016). Although the court refer-
enced a citation, issued following the pedestrian’s accident, to correct the
sidewalk’s condition, the record also included evidence that the condomin-
ium association, which was made up of the four units in a single building,
had repaired the sidewalk and proportionately charged each of the unit
owners for the costs. Id. We conclude that this factually and procedurally
distinguishable case is not in any way persuasive of the plaintiff’s contention
that the sidewalk citations in the current case demonstrate a genuine issue
of material fact.
15
At oral argument before the trial court on the motions for summary
judgment, the plaintiff’s counsel referred to certain of the highlighted docu-
ments, which he previously had submitted in connection with his objections
to the motions for summary judgment. When questioned by the court, the
plaintiff’s counsel responded that ‘‘[m]y office’’ had highlighted the docu-
ment.
As noted previously, although the plaintiff argued, in his surreply, that
his original submissions were sufficient to demonstrate a genuine issue
of material fact, he also refiled, at docket entry number 150.00, certified
documents. On appeal, he does not claim that the court erred in confining
its consideration to the documents filed at docket entry number 150.00.
16
The plaintiff does not argue that the design defendants prepared the
2001 demolition plan or had any involvement whatsoever in that plan. Thus,
we analyze the 2001 demolition plan in relation to the owner defendants only.
17
Practice Book § 17-46 ‘‘sets forth three requirements necessary to permit
the consideration of material contained in affidavits submitted in a summary
judgment proceeding. The material must: (1) be based on personal knowl-
edge; (2) constitute facts that would be admissible at trial; and (3) affirma-
tively show that the affiant is competent to testify to the matters stated in
the affidavit.’’ (Internal quotation marks omitted.) Atlantic St. Heritage
Associates, LLC v. Atlantic Realty Co., 216 Conn. App. 530, 550, 285 A.3d
1128 (2022).
18
The plaintiff raises three additional arguments in support of his con-
tention that the exhibits he filed did not require accompanying affidavits.
First, he argues that ‘‘allegations of a positive act that are not negated, as
in Cyr [v. VKB, LLC, 194 Conn. App. 871, 880, 222 A.3d 965 (2019)], are
sufficient in itself to create an issue of material fact.’’ We address the premise
of this contention in part I C of this opinion, wherein we conclude that the
plaintiff failed to allege positive acts. Second, he argues that the exhibits
he filed are ‘‘certified public documents, which are self-authenticated and
exempt from the rules of hearsay.’’ The trial court, however, did not deter-
mine that the documents were inadmissible on the basis that they had
not been authenticated or contained hearsay. Rather, it assumed without
deciding that the documents were admissible and afforded them consider-
ation. Third, he argues that, even if an affidavit was required, his own
affidavit satisfies the requirement, in that he attested to ‘‘where he obtained
the plans and that he fell on the walkway owned and maintained by [the
defendants].’’ With respect to his averment regarding ownership and mainte-
nance of the walkway, the trial court determined, and we agree, that it
constitutes a conclusory statement insufficient to demonstrate a genuine
issue of material fact. ‘‘[A] nonmoving party’s conclusory affidavits alone
are insufficient grounds to deny a motion for summary judgment.’’ Walker
v. Housing Authority, 148 Conn. App. 591, 597, 85 A.3d 1230 (2014).
19
The reply materials included ‘‘certificates of use and occupancy, two
photographs of the sidewalk, excerpts from the plaintiff’s deposition tran-
script, and the affidavit of Ronald J. Houde, Jr., Esq., attesting that the
submitted documents are true and accurate copies.’’ Cyr v. VKB, LLC, supra,
194 Conn. App. 886 n.5.
20
The plaintiff cites Noel v. Beck, Superior Court, judicial district of Middle-
sex, Docket No. CV-XX-XXXXXXX-S (August 16, 2013), in support of his con-
tention that the allegation regarding a failure to position the slab level is
sufficient to allege a positive act. In that case, the court denied the defen-
dants’ motion to strike on the basis that the plaintiff sufficiently had alleged
a positive act, where the plaintiff had defined ‘‘the alleged ‘positive act’ as
the creating of ‘an abrupt change in the elevation from the sidewalk to the
driveway resulting in a raised section of paving with an untreated vertical
displacements,’ ’’ which act occurred while paving the driveway. Id. In the
present case, the plaintiff alleged a failure to lower the walkway, failure to
shave down the slab, and failure to position the slab level, none of which
rises to the level of the express allegations of paving the driveway and
creating the raised section of paving.
21
Throughout his principal appellate brief, the plaintiff emphasizes the
allegation contained in his complaint that the defendants ‘‘were in control
of’’ the walkway. He contends that ‘‘allegations of possession and control
are sufficient allegations of a positive action.’’ The decisions of the Superior
Court cited by the plaintiff in support of this contention are distinguishable.
In Schumacher v. Morey, Superior Court, judicial district of Ansonia-Milford,
Docket No. CV-98064798 (August 10, 2001), the court denied a motion to
strike where the plaintiff had alleged possession and control of a metal pipe
that protruded from the sidewalk, not possession and control of the sidewalk
generally. In Stahl v. Hadelman, Superior Court, judicial district of New
Haven, Docket No. 411954 (May 17, 1999), the court denied the defendants’
motion for summary judgment on the basis that the defendants had not
rebutted the allegation, made in the complaint, that the defendants owned
the sidewalk, that is, that the sidewalk was within the owner’s property
line. Thus, contrary to the representation in the plaintiff’s appellate brief,
the court in Stahl did not deny the motion for summary judgment on the
basis that the allegations and evidence ‘‘[were] sufficient to establish positive
acts . . . .’’
22
The plaintiff also contends that summary judgment should have been
denied on the basis that he had alleged the defendants’ failure to warn him
of the hazardous condition. In support of this argument, he contends that
‘‘our courts have held that a duty to warn exists to business invitees for
hazards on an abutting sidewalk in the immediate vicinity of the property.’’
The Superior Court decisions on which the plaintiff relies do not support
his argument and are factually distinguishable. See Eaves v. Ebonas, LLC,
Superior Court, judicial district of Hartford, Docket No. CV-XX-XXXXXXX-S
(August 5, 2021) (denying motion for summary judgment where evidence
demonstrated ‘‘competing inferences of material fact’’ including ownership
of sidewalk); Swain v. Leninski, 47 Conn. Supp. 660, 665–66, 823 A.2d 462(2003) (granting defendant’s motion for summary judgment after concluding
that defendant had no duty under Wilson v. New Haven, supra, 213 Conn.
277, to warn user of public sidewalk of defect, declining to address whether
there exists exception to Wilson rule in cases where ‘‘dangerous defect
exists immediately outside an exit’’ (emphasis added)).
23
Finally, the plaintiff argues that ‘‘the trial court failed to address [the
plaintiff’s] argument that there is also an issue of material fact whether [the
defendants] were in possession and control over the area where [the plaintiff]
fell, which is an element of all premises liability actions. This is a separate and
distinct analysis from the positive action doctrine, independently requiring
denial of [the defendants’ motions for summary judgment].’’ We disagree
that the trial court failed to address this contention. The trial court deter-
mined that the defendants satisfied their burden of demonstrating that there
was no genuine issue of material fact that the plaintiff’s alleged fall occurred
on land owned and maintained by the city of Hartford and that the plaintiff
failed to submit evidence to demonstrate a genuine issue of material fact
as to whether the area in which his claimed fall occurred was owned or
maintained by the defendants.
24
The plaintiff argues that our appellate courts ‘‘have unambiguously held
that it is an abuse of discretion for a trial court to deny a motion to amend
a complaint to conform to facts revealed during discovery that, if denied,
would moot the moving party’s motion for summary judgment.’’ Contrary
to the blanket rule suggested by the plaintiff, both cases on which he relies
are fact specific and do not compel the conclusion that the court improperly
denied the request to amend in the present case. See Falby v. Zarembski,
221 Conn. 14, 25, 602 A.2d 1 (1992) (court abused its discretion in denying
plaintiffs’ motion to amend complaint where amendment sought to separate
theories of liability that improperly had been pleaded in same count); Miller
v. Fishman, 102 Conn. App. 286, 295, 925 A.2d 441 (2007) (court abused its
discretion in denying motion to amend where proposed amendment did not
set forth new theories of liability and preparation of defense would not have
required significant additional time and resources), cert. denied, 285 Conn.
905, 942 A.2d 414 (2008).
25
The plaintiff also alludes vaguely to purported issues of credibility and
errors in the Cyr survey in arguing that the court erroneously relied on Cyr’s
affidavit in rendering summary judgment. For the same reasons previously
set forth, we conclude that this argument is inadequately briefed.