Walker v. Housing Authority of Bridgeport , 148 Conn. App. 591 ( 2014 )

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DELORES WALKER v. HOUSING AUTHORITY OF
THE CITY OF BRIDGEPORT
(AC 34096)
Beach, Keller and Harper, Js.
Argued September 18, 2013—officially released March 11, 2014
(Appeal from Superior Court, judicial district of
Fairfield, Levin, J.)
James G. O’Rourke, for the appellant (plaintiff).
Garrett F. O’Keefe, for the appellee (defendant).
Opinion
HARPER, J. The plaintiff, Delores Walker, appeals
from the summary judgment rendered in favor of the
defendant, the Housing Authority of the City of Bridge-
port, on the ground that the plaintiff did not comply
with the notice requirements of General Statutes § 8-
67. On appeal, the plaintiff claims that the trial court
erred by: (1) deciding issues of material fact; (2) con-
cluding that the plaintiff did not provide adequate notice
as a matter of law according to § 8-67; and (3) finding
that the defendant could not delegate, pursuant to Gen-
eral Statutes § 8-41 (a), the authority to receive notice
under § 8-67. We affirm the trial court’s summary judg-
ment in favor of the defendant.
The plaintiff’s cause of action is based on an injury
she sustained on January 15, 2009, while on the defen-
dant’s property. The plaintiff commenced her action on
October 7, 2010. The defendant filed an amended
answer and special defenses, asserting, inter alia, that
the plaintiff’s claim was barred because she failed to
provide proper notice pursuant to § 8-67. Entitled
‘‘Injury on housing authority property,’’ § 8-67 provides
that any person injured on ‘‘property owned or con-
trolled by [a housing] authority . . . may bring an
action . . . to recover damages from such authority,
provided written notice of the intention to commence
such action and of the time when and the place where
the damages were incurred or sustained has been filed
with the chairman or the secretary of the authority
within six months after the cause of action therefor
arose.’’ The defendant moved for summary judgment
asserting that it did not receive proper notice pursuant
to the statute.
The parties submitted memoranda and the court held
a hearing on the motion. The defendant attached several
exhibits to its memorandum of law in support of its
motion for summary judgment. One exhibit was a letter
from the plaintiff to the defendant, which the plaintiff
claimed provided the requisite notice under § 8-67. The
letter was dated February 12, 2009. The envelope con-
taining the letter was addressed to ‘‘Bridgeport Housing
Authority,’’ and the salutation read, ‘‘To Whom It May
Concern.’’ The contents of the letter identified the plain-
tiff, provided when and where she was injured on the
defendant’s property, and stated that she intended to
commence an action to recover for her injuries.
The defendant also provided the court with two affi-
davits, one from its executive director, Nicholas Calace,
and one from its chief of security, Rafael M. Villegas.
Calace’s affidavit stated that, at the time the plaintiff
sustained her injury, he was the secretary of the defen-
dant’s board and Kathleen Vila1 was the voluntary chair-
man. The affidavit described that the plaintiff’s letter
was not addressed to Calace or Vila, either personally
or in their official capacity. Calace also affirmed that
it was the defendant’s policy that ‘‘Vila would not
receive any mail sent to the [defendant] that was not
specifically addressed to her.’’ The affidavit went on to
state that Vila is deceased. In Villegas’ affidavit, he
stated that he never had been delegated the authority
to receive notice of claims pursuant to § 8-67. Villegas’
affidavit also stated that he received the plaintiff’s letter
from the defendant’s human resources department.
The plaintiff’s theory in opposition to summary judg-
ment was that mailing her letter to the defendant consti-
tuted sufficient notice under § 8-67. Furthermore, the
plaintiff argued that if the letter was insufficient under
the statute, the authority to receive notice had been
delegated to Villegas pursuant to § 8-41 when Vila fell
ill preceding her death, and therefore the plaintiff had
satisfied the statutory requirements when Villegas
received the letter.2
Section 8-41 (a) provides in relevant part: ‘‘An author-
ity may delegate any of its powers and duties to one
or more of its agents or employees. . . .’’ The plaintiff
primarily relied on two pieces of evidence to support
her delegation theory. First, she submitted a document
created by the defendant directing that ‘‘[u]pon first
notice of a New Claim [to] please contact [Villegas]
immediately.’’ Villegas reported, however, that this doc-
ument was an ‘‘internal . . . document . . . not
[filled] out by plaintiffs as notice of a claim.’’ Second,
the plaintiff submitted a letter from Villegas to her attor-
ney that acknowledged receipt of the plaintiff’s letter.
The plaintiff contends that the Villegas letter was ‘‘on
letterhead of the office of the [s]ecretary and [c]hairper-
son,’’ and argues that this is additional evidence of a
delegation. Villegas’ affidavit stated that the stationary
was not the letterhead of either the secretary or the
chairperson, but ‘‘generic stationary of the [defendant]
. . . used by all employees . . . .’’ The Villegas letter
indicates that a copy of the letter was placed in a file,
which the plaintiff argues demonstrates that she satis-
fied the statute.3 The plaintiff’s counsel also provided
his own affidavit, which stated: ‘‘I caused notice of
[the plaintiff’s] claim to be mailed to the office of the
[c]hairperson and [s]ecretary of the [d]efendant in com-
pliance with . . . § 8-67.’’
On October 24, 2011, the court granted the defen-
dant’s motion for summary judgment. Citing § 8-67, the
court found that ‘‘there is no question that the notice
was not delivered or received either by . . . [Chairman
Vila] or [Secretary Calace] . . . .’’ The court then stated
that the plaintiff’s delegation theory was ‘‘unsubstanti-
ated speculation.’’ Furthermore, the court found that
the defendant could not delegate the authority to
receive notice. This appeal followed.
‘‘We begin with the applicable standard of review.
Practice Book § 17-49 provides that summary judgment
shall be rendered forthwith if the pleadings, affidavits
and any other proof submitted show that there is no
genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law. In
deciding a motion for summary judgment, the trial court
must view the evidence in the light most favorable to the
nonmoving party. . . . The party moving for summary
judgment has the burden of showing the absence of
any genuine issue of material fact . . . .’’ (Internal quo-
tation marks omitted.) Brown & Brown, Inc. v. Blumen-
thal, 297 Conn. 710, 721, 1 A.3d 21 (2010). ‘‘[T]he party
moving for summary judgment is held to a strict stan-
dard. [The moving party] must make a showing that it
is quite clear what the truth is, and that excludes any
real doubt as to the existence of any genuine issue of
material fact. . . . A material fact is a fact that will
make a difference in the result of the case.’’ (Internal
quotation marks omitted.) Vollemans v. Wallingford,
103 Conn. App. 188, 193, 928 A.2d 586 (2007), aff’d, 289
Conn. 57, 956 A.2d 579 (2008). ‘‘Because the court’s
decision on a motion for summary judgment is a legal
determination, our review on appeal is plenary.’’ (Inter-
nal quotation marks omitted.) Tuccio Development, Inc.
v. Neumann, 111 Conn. App. 588, 593, 960 A.2d 1071(2008).
‘‘We emphasize the important point, that [a]lthough
the party seeking summary judgment has the burden
of showing the nonexistence of any material fact . . .
a party opposing summary judgment must substantiate
its adverse claim by showing that there is a genuine
issue of material fact together with the evidence disclos-
ing the existence of such an issue. . . . It is not enough
. . . for the opposing party merely to assert the exis-
tence of such a disputed issue. Mere assertions of fact
. . . are insufficient to establish the existence of a
material fact . . . .’’ (Internal quotation marks omit-
ted.) Buell Industries, Inc. v. Greater New York Mutual
Ins. Co., 259 Conn. 527, 550, 791 A.2d 489 (2002). Fur-
thermore, a nonmoving party’s conclusory affidavits
alone are insufficient grounds to deny a motion for
summary judgment. Id., 557. ‘‘We acknowledge that [o]n
summary judgment the inferences to be drawn from
the underlying facts . . . must be viewed in the light
most favorable to the party opposing the motion. . . .
A party may not, however, rely on mere speculation or
conjecture as to the true nature of the facts to overcome
. . . summary judgment.’’ (Citation omitted; internal
quotation marks omitted.) Id., 558.4
I
The plaintiff claims that the court erred in granting
the defendant’s motion for summary judgment because
it ‘‘sat as the final trier of fact rather than leaving genu-
ine issues of material fact regarding sufficient notice
for the jury.’’ In support of this claim, the plaintiff argues
that the affidavit of her counsel, James O’Rourke, cre-
ated a genuine issue of material fact that the court
resolved.5 The plaintiff also claims that the fact that Vila
died and could not testify as to whether she received
the letter creates a genuine issue of material fact that
precluded summary judgment. We disagree with both
claims, and therefore conclude that the court did not
decide issues of material fact.
The affidavit in question does not create a genuine
issue of material fact that would preclude summary
judgment. The outcome of the defendant’s motion for
summary judgment depended on whether the defen-
dant’s secretary or chairperson received the plaintiff’s
letter. See General Statutes § 8-67. The O’Rourke affida-
vit states that he ‘‘caused [n]otice of [the plaintiff’s]
claim to be mailed to the office of the [c]hairperson
and [s]ecretary of the [d]efendant in compliance with
. . . § 8-67.’’6 This statement does not create a genuine
issue of material fact regarding where the notice was
sent, to whom it was addressed, or whether the chair-
man or secretary received it. The affidavit does not
dispute the fact that the letter’s salutation read, ‘‘To
Whom It May Concern,’’ and does not create a genuine
issue of material fact regarding the defendant’s policy
to send letters to Vila only if specifically addressed to
her. Furthermore, the statement that the notice was ‘‘in
compliance’’ with the statute is a bare legal conclusion,
not a fact. In sum, the O’Rourke affidavit does not create
a genuine issue of material fact that would preclude
summary judgment.
Vila’s inability to testify as to whether she received
notice also does not create a genuine issue of material
fact that would preclude summary judgment. The plain-
tiff specifically argues that it was erroneous for the
court to conclude that notice was not filed properly ‘‘as
[Vila] is deceased and is not available to testify as to
the truth of the matter asserted in the [a]ffidavit of . . .
Calace.’’ Although the plaintiff’s argument seems to be
that Calace’s affidavit constitutes hearsay, she does not
indicate which statement in particular is offered for the
truth of the matter asserted. See Conn. Code Evid. § 8-
1 (3). On the basis of her argument, we assume that
the plaintiff takes issue with this statement in Calace’s
affidavit: ‘‘As such, to the best of my information and
belief, as well as in accordance with [the defendant’s]
policy, Ms. Vila did not receive a copy of the plaintiff’s
letter.’’ The plaintiff’s argument appears to be that
because Vila cannot testify as to whether she received
the notice and Calace’s affidavit constitutes hearsay,
this creates a genuine issue of material fact that can
only be resolved at trial. We disagree because Calace’s
statement does not constitute hearsay and Vila’s inabil-
ity to testify does not create a genuine issue of mate-
rial fact.
‘‘ ‘Hearsay’ means a statement, other than one made
by the declarant while testifying at the proceeding,
offered in evidence to establish the truth of the matter
asserted.’’ Conn. Code Evid. § 8-1 (3). Hearsay is gener-
ally inadmissible; see Conn. Code Evid. § 8-2; and there-
fore when deciding a motion for summary judgment a
court may not consider material that would be hearsay
at trial. Wooten v. Heisler, 82 Conn. App. 815, 819, 847
A.2d 1040 (2004). In his affidavit, Calace qualified the
statement at issue by cautioning that it was based on
‘‘the best of my information and belief . . . .’’ This
caveat indicates that Calace is not repeating a statement
Vila made. Calace’s affidavit only states that he has no
personal knowledge that Vila received the plaintiff’s
letter, and acknowledges the defendant’s policy that
Vila would not receive mail unless it was specifically
addressed to her. The statement at issue, although
offered for its truth, is not one made by someone other
than the declarant, Calace, and therefore the court prop-
erly considered it for purposes of summary judgment.
We also conclude that Vila’s inability to testify does
not create a genuine issue of material fact that would
preclude summary judgment. To avoid summary judg-
ment, the plaintiff was required to demonstrate a genu-
ine issue of material fact through evidence that either
Vila or Calace received the plaintiff’s letter. See Buell
Industries, Inc. v. Greater New York Mutual Insurance
Co., supra, 259 Conn. 550. Calace’s affidavit states that
it was the defendant’s policy not to send Vila mail unless
it was specifically addressed to her. The plaintiff did
not provide evidence rebutting this statement, which
would have created a genuine issue of material fact as
to whether Vila received the letter. In other words, the
plaintiff did not provide any evidence that, despite the
policy, Vila did receive the plaintiff’s letter even though
it was not specifically addressed to her.
The fact that Vila cannot testify does not excuse the
plaintiff’s failure to offer evidence regarding whether
Vila received the letter sufficient to create a genuine
issue of material fact. We acknowledge that Vila’s inabil-
ity to testify is a limitation on what evidence was at
the plaintiff’s disposal to demonstrate the existence of
a genuine issue of material fact. The plaintiff, however,
still had the ability to provide other evidence from dif-
ferent sources, such as other employees of the defen-
dant or Vila acquaintances. Although the court will draw
all reasonable inferences in favor of the party opposing
summary judgment; id., 558; the plaintiff did not present
any evidence to warrant a reasonable inference in her
favor. The plaintiff presented no genuine issues of mate-
rial fact in opposition to the defendant’s motion for
summary judgment, and therefore the plaintiff’s claim
fails.
II
The plaintiff also claims that the court erred in con-
cluding that as a matter of law notice had not been filed
with the defendant’s chairman or secretary pursuant to
§ 8-67.7 The plaintiff’s evidence in support of this claim
is the Villegas letter to O’Rourke confirming receipt
of her letter. The plaintiff argues that Villegas’ letter
acknowledging that the defendant received the plain-
tiff’s letter and indicating that a copy of the letter was
placed in a ‘‘file’’ satisfies the notice requirement of § 8-
67. We conclude that it does not as a matter of law.
Section 8-67 requires notice of an action against a
housing authority to be ‘‘filed with the chairman or the
secretary of the defendant within six months after the
cause of action therefor arose.’’ The issue before us is
whether mailing a letter to the defendant addressed
‘‘To Whom It May Concern’’ is properly ‘‘filed’’ with the
chairman or the secretary for purposes of § 8-67, if the
plaintiff has not presented any evidence to demonstrate
that either the chairman or the secretary received the
letter.
Our prior interpretation of § 8-67 guides our analysis.
See Hummel v. Marten Transport, Ltd., 282 Conn. 477,
501, 923 A.2d 657 (2007) (‘‘[t]here is nothing in the
legislative history to suggest that the legislature . . .
intended to overrule every other case in which our
courts, prior to the passage of [General Statutes] § 1-
2z, had interpreted a statute in a manner inconsistent
with the plain meaning rule’’). In Fields v. Housing
Authority, 63 Conn. App. 617, 624, 777 A.2d 752, cert.
denied, 257 Conn. 910, 782 A.2d 133 (2001), we con-
cluded that notice provided to housing authority
employees or an insurance carrier, but not to the chair-
man or secretary themselves, did not satisfy the notice
requirement in § 8-67. It is insufficient to provide notice
only to a housing authority employee because the stat-
ute requires that either the chairman or secretary per-
sonally acknowledge receipt of the notice. See id.
(employee of housing authority cannot waive required
notification). We recognized in Fields, and still
acknowledge, that this notice requirement can lead to
harsh results, yet ‘‘the legislature was aware from . . .
prior judicial decisions that persons could be injured
on housing authority property and be denied recovery
for failing to provide the statutory notice.’’ Id. Modifying
this notice requirement is a matter for the legislature,
not the courts. See Struckman v. Burns, 205 Conn. 542,
558, 534 A.2d 888 (1987) (‘‘matter for the legislature,
not this court, to determine when our state’s sovereign
immunity should be waived’’). Because the plaintiff
‘‘seeks the benefit of a statute requiring a prescribed
form of notice to trigger its operation, we . . . [insist]
upon strict compliance with the statutory requirement.’’
Pacelli Bros. Transportation, Inc. v. Pacelli, 189 Conn.
401, 414, 456 A.2d 325 (1983). Strict compliance with
§ 8-67 requires that either the chairman or secretary
receive notice.
The plaintiff has not submitted evidence to show that
either Vila or Calace personally received her letter. The
evidence submitted in conjunction with the motion for
summary judgment established that the plaintiff mailed
the letter to the defendant, but did not address it to
either the chairman or the secretary. Evidence was sub-
mitted to show that, pursuant to the defendant’s policy,
the notice would not have been given to Vila unless it
was specifically addressed to her, which it was not.
Absent evidence to the contrary, it is not reasonable
to assume that this policy was not followed. Villegas’
letter and affidavit tend to show that he received the
plaintiff’s letter from the defendant’s human resources
department and forwarded it to the defendant’s insur-
ance carrier.8 The plaintiff has not offered any evidence
to show that the letter was received by either the chair-
man or the secretary within the requisite time frame.
Pursuant to Fields, we conclude that the plaintiff did
not provide the requisite notice as a matter of law.9
III
Finally, the plaintiff argues that the court erred in
granting the defendant’s motion for summary judgment
because the court incorrectly concluded that the defen-
dant could not delegate, pursuant to § 8-41, the author-
ity to receive notice under § 8-67 as a matter of law.
We disagree.
In her first memorandum of law opposing summary
judgment, the plaintiff argued: ‘‘There is also a question
of fact as to whether [Villegas] had been delegated the
power and duty of the [c]hairperson and/or the [s]ecre-
tary under . . . § 8-41 to accept first notice of [n]ew
liability [c]laims and to handle claims on behalf of the
[c]hairperson and/or [s]ecretary.’’ Section 8-41 details,
inter alia, the appointment of housing authority com-
missioners. The plaintiff relies on one provision in § 8-
41, which provides: ‘‘An authority may delegate any of
its powers and duties to one or more of its agents or
employees.’’ The plaintiff claims that the defendant’s
internal policy to bring all claims to Villegas and the
letterhead Villegas used to respond to the plaintiff’s
letter are evidence of a delegation. We conclude that
§ 8-41 (a) is irrelevant to whether the defendant
received notice pursuant to § 8-67.
Section 8-67 sets forth the method by which a plaintiff
is to provide notice of a claim to a housing authority.
Section 8-67 does not provide the housing authority
with any powers or impose any duties. The portion
of § 8-41 upon which the plaintiff relies, regarding the
defendant’s ability to delegate powers and duties, is
therefore irrelevant to § 8-67. We conclude that the
court did not err in finding that the defendant could
not delegate the authority to receive notice.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff refers to Vila as ‘‘Kathleen Villa’’ in her brief. The defendant’s
stationary indicates that the correct spelling is Vila.
2
We note that neither party presented exhibits regarding the circum-
stances surrounding Vila’s death. The plaintiff fully presented her theory
for the first time during the hearing on the motion for summary judgment.
Nothing in the plaintiff’s memoranda of law opposing the motion, or the
exhibits attached thereto, offers any evidence regarding the circumstances
of Vila’s death. The assertion that she was ill for some period of time before
her death appears to be pure speculation. Even so, the court appears to have
entertained this theory when considering the motion for summary judgment.
3
Villegas’ letter indicates that he sent a copy of it to the plaintiff, two
insurance companies, the defendant’s director of asset management, and
‘‘file.’’
4
The plaintiff claims that the court used an ‘‘improper standard’’ for
summary judgment by requiring that she present evidence to support her
argument that there is a genuine issue of material fact. Although it is true
that the moving party has the burden of showing there are no genuine issues
of material fact; Brown & Brown, Inc. v. Blumenthal, supra, 297 Conn. 721;
in order to refute this showing, the nonmoving party cannot rely on bare
assertions, and has the burden of coming forward with evidence. See Buell
Industries, Inc. v. Greater New York Mutual Insurance Co., supra, 259
Conn. 550. We conclude that the plaintiff’s argument has no merit and the
court applied the proper standard.
5
The plaintiff’s claim has two parts. First, the plaintiff claims that the
court failed to consider the O’Rouke affidavit and the plaintiff’s second
memorandum opposing the motion for summary judgment. Second, the
plaintiff claims that these materials, if considered, create a genuine issue
of material fact that rendered summary judgment inappropriate. The plaintiff
moved for an articulation of the court’s summary judgment order, and the
court articulated that it ‘‘probably did not rely on the plaintiff’s [second
memorandum] . . . nor the affidavit’’ when ordering summary judgment.
The court stated that it did, however, review these materials before denying
the plaintiff’s motion to reargue.
‘‘[T]he purpose of a reargument is . . . to demonstrate to the court that
there is some decision or some principle of law which would have a control-
ling effect, and which has been overlooked, or that there has been a misappre-
hension of facts. . . . It also may be used to address . . . claims of law that
the [movant] claimed were not addressed by the court.’’ (Internal quotation
marks omitted.) JPMorgan Chase Bank, N.A. v. Eldon, 144 Conn. App. 260,
277, 73 A.3d 757, cert. denied, 310 Conn. 935, 79 A.3d 889 (2013). The plaintiff
did not challenge the court’s denial of her motion to reargue either in her
brief or at oral argument before this court, and therefore it is uncontested
that the affidavit and memorandum do not present any additional facts or
controlling law. See id.; Harris v. Bradley Memorial Hospital & Health
Center, Inc., 306 Conn. 304, 319, 50 A.3d 841 (2012), cert. denied, U.S.
, 133 S. Ct. 1809, 185 L. Ed. 2d 812 (2013). This leads to the conclusion
that the trial court considered the effect of the facts and arguments in these
materials in ruling on the motion for summary judgment, and therefore the
only issue on appeal is whether the facts and arguments presented create a
genuine issue of material fact, and if so, whether the court decided that issue.
6
The other statements in the O’Rourke affidavit are as follows: ‘‘1. I am
over the age of (18) years and understand the obligations of an oath. 2. I
am the attorney of record for [the plaintiff]. . . . 4. The Notice was received
by Rafael Villegas, Chief of Security, Bridgeport Housing Authority, of the
Office of the Secretary and Chairperson, on February 18, 2009.’’
7
We note that the plaintiff’s appellate brief does not address this claim
with the same depth as does her memoranda opposing summary judgment.
Although the plaintiff only alluded to this claim in her brief, the analysis
was sufficient to warrant appellate review. Cf. Connecticut Light & Power
Co. v. Gilmore, 289 Conn. 88, 124 n.24, 956 A.2d 1145 (2008).
8
The fact that Villegas may have placed a copy of the letter he wrote—
not the plaintiff’s letter—in an unspecified ‘‘file’’ is inapposite. The plaintiff
argued that her letter constituted sufficient notice under the statute because
it was filed with the chairman or secretary. She did not argue that the
Villegas letter was the operative notice. The circumstances surrounding the
Villegas letter, including where it was filed, are therefore irrelevant to the
plaintiff’s claim. Even if, arguendo, the plaintiff had claimed that the Villegas
letter was the operative notice, that argument would fail because the Villegas
letter does not state the time the injury occurred, as required by the statute.
See General Statutes § 8-67.
9
The plaintiff attempts to distinguish Fields on the ground that the plaintiff
in Fields did not provide written notice. Although the plaintiff in Fields
informed the housing authority employees via telephone and in person, his
attorney also provided written notice to the housing authority’s insurance
carrier. Fields v. Housing Authority, supra, 63 Conn. App. 619. These facts
do not affect the weight that we afford the holding in Fields.