Priore v. Haig

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THOMAS PRIORE v. STEPHANIE HAIG
(AC 41748)
Alvord, Prescott and Pellegrino, Js.
Syllabus
The plaintiff sought to recover damages for defamation in connection with
statements made by the defendant about the plaintiff at a public hearing
before the Greenwich Planning and Zoning Commission on the plaintiff’s
application for a special permit to construct a new residence and new
sewer line on his property. At the hearing, the defendant addressed the
commission to share her concerns regarding the plaintiff’s application.
In addition to her concern that the proposed sewer line would have an
impact on the health of trees, she stated that the plaintiff had not
been trustworthy, had a serious criminal past, and had paid more than
$40,000,000 in fines to the Securities and Exchange Commission. The
press was in attendance and published parts of the defendant’s state-
ment. The defendant filed a motion to dismiss the plaintiff’s action
claiming, inter alia, that the trial court lacked subject matter jurisdiction
because her statements were entitled to absolute litigation immunity,
which the court granted. The plaintiff filed a motion to reargue, claiming
that the trial court incorrectly concluded that the hearing was quasi-
judicial in nature, improperly considered whether the defendant’s state-
ments were pertinent rather than relevant to the subject matter of the
hearing, applied the wrong standard to a motion to dismiss, and failed
to hold an evidentiary hearing to resolve disputed jurisdictional facts.
The court denied the motion and the plaintiff appealed to this court
claiming, inter alia, that the trial court incorrectly granted the motion
to dismiss and denied his motion to reargue. Held:
1. The trial court properly decided the defendant’s motion to dismiss on the
basis of the complaint, the transcript of the hearing, and the defendant’s
affidavit, and did not abuse its discretion in declining to conduct an
evidentiary hearing or in denying the plaintiff’s motion to reargue; the
plaintiff failed to present evidence to establish a dispute as to a material
jurisdictional fact and did not request an evidentiary hearing until after
the court decided the defendant’s motion to dismiss.
2. The trial court correctly determined that the defendant’s statements were
entitled to absolute litigation immunity: the planning and zoning commis-
sion hearing was quasi-judicial in nature because the commission exer-
cised discretion in deciding whether to approve the plaintiff’s special
permit application, it engaged in fact-finding, it had the ability to approve,
deny, or table the plaintiff’s application for further proceedings, its
decision whether to grant or deny the plaintiff’s application had the
power to affect the property rights of private persons, and it heard the
testimony of several witnesses; moreover, public policy interests in
encouraging citizen participation in the deliberations and decisions of
their local governments supported a finding that the hearing was quasi-
judicial in nature; furthermore, the defendant’s statements concerned
the credibility of the plaintiff, which the plaintiff put into issue by
submitting a special permit application that contained representations
on which the zoning and planning commission would rely in reviewing
that application and, therefore, the defendant’s statements were perti-
nent to the subject matter of the proceeding.
Argued October 22, 2019—officially released March 31, 2020
Procedural History
Action to recover damages for defamation, and for
other relief, brought to the Superior Court in the judicial
district of Stamford-Norwalk, where the court, Povoda-
tor, J., granted the defendant’s motion to dismiss; there-
after, the court, Povodator, J., denied the plaintiff’s
motion to reargue and rendered judgment for the defen-
dant, from which the plaintiff appealed to this court.
Affirmed.
Eric D. Grayson, for the appellant (plaintiff).
Richard W. Bowerman, with whom, on the brief, was
Jacob Pylman, for the appellee (defendant).
Opinion
PRESCOTT, J. This is a defamation action brought
by the plaintiff, Thomas Priore, against the defendant,
Stephanie Haig, seeking to recover damages for injuries
that he claims to have sustained as a result of allegedly
defamatory statements made by the defendant during
a hearing before the Greenwich Planning and Zoning
Commission (commission). The plaintiff appeals from
the judgment of the trial court granting the defendant’s
motion to dismiss on the ground that the court lacked
subject matter jurisdiction because the defendant’s
statements were entitled to absolute litigation
immunity.
On appeal, the plaintiff claims that the trial court (1)
improperly dismissed the action and denied his motion
to reargue because the trial court failed to hold an
evidentiary hearing necessary to resolve jurisdictional
facts in dispute, and (2) incorrectly determined that
the defendant’s statements were entitled to absolute
litigation immunity because (a) the proceeding of the
commission, at which the commission considered the
plaintiff’s special permit application and the materials
submitted in support thereof, was not quasi-judicial in
nature, and (b) the statements concerning the plaintiff
that the defendant made to the commission were not
‘‘pertinent’’ to the commission’s proceeding. We dis-
agree and, accordingly, affirm the judgment of the
trial court.
The following facts in the record before the trial
court, derived from the complaint, the transcript of
the commission’s hearing, and the defendant’s affidavit,
viewed in the light most favorable to the plaintiff, and
procedural history are relevant to our review. The plain-
tiff is the chairman of a company that is one of the
nation’s leading credit card payment processors. The
industry in which the plaintiff works is ‘‘heavily reputa-
tion dependent . . . .’’ In January, 2015, the plaintiff,
through a limited liability company, purchased a prop-
erty located at 15 Deer Park Meadow Road in Green-
wich (property). The property is part of a private subdi-
vision known as the Deer Park Association
(association), which consists of fifteen to seventeen
lots. When the plaintiff bid on the property, it was under-
stood that he would demolish the dwelling on the prop-
erty and construct an entirely new home. The plaintiff
also agreed that he would have a new sewer line
installed on his property. Through an easement that
the plaintiff agreed to grant, the sewer line would be
accessible to others in the association for access and
repairs.
As part of the process for obtaining the commission’s
approval to construct a new residence and to place a
sewer line on his property, the plaintiff was required
to and, indeed, did submit an application for a special
permit. This application, as well as the final site plan
submitted in support thereof, were the subject of dis-
cussion and deliberation at the commission’s public
hearing on January 12, 2016 (hearing). The hearing was
slated to be the final hearing concerning the approval of
the plaintiff’s application. The record does not indicate
whether the plaintiff attended the hearing.
Anthony D’Andrea, the plaintiff’s engineer, was the
first person to address the commission concerning the
plaintiff’s application. He discussed various aspects of
the plan to install the sewer line, including drainage
and the way in which the installation of the sewer line
might affect some of the existing trees on the property.
D’Andrea stated that trees had been ‘‘removed during
the demolition of the house’’ and that he believed a
planting plan would be submitted ‘‘that [would] include
at least twenty trees.’’ In sum, D’Andrea stated that the
sewer line was being placed in a way that would protect
the trees in the area and that the goal was to maximize
the number of trees that could be preserved.
After D’Andrea spoke, members of the public were
invited to address the commission. The first speaker
was the president of the association (president), who
alerted the commission to subsequent speakers that
would address the commission about trees that were
important to members of the association. According to
the president, the trees were important because they
‘‘provide[d] privacy [and were] part of the character’’
of the neighborhood.
Following the president’s remarks, Michael Fink-
beiner, a surveyor and consulting professional forester
retained by an association member, addressed the com-
mission. Finkbeiner noted that an ‘‘existing conditions
plan’’ was missing from the plaintiff’s submission to the
commission. Finkbeiner stated that this document had
not been included in the submission because it would
have disclosed that the plaintiff had clear-cut the prop-
erty of certain trees. He implored the commission to
consider ‘‘additional regulations [to protect] sites in
advance of special permit applications’’ to prevent
‘‘applicants [from] com[ing] in for a special permit after
they have clear-cut the site.’’ Indeed, Finkbeiner stated
that, as a result of the plaintiff’s representations, the
commission may have ‘‘been deceived into thinking
[that the trees shown in the topographic survey are]
existing trees, but they are no more.’’
After Finkbeiner spoke, the defendant addressed the
commission. The defendant stated that she was con-
cerned that the plaintiff’s proposed sewer line would
impact the health of the trees that she claimed to ‘‘co-
own’’ with the plaintiff. She also stated that the plaintiff
had been ‘‘very disrespectful of the neighbors’’ in the
way in which he managed alterations to his property.
She also said that the plaintiff has ‘‘a criminal past.’’1
Indeed, she stated that the plaintiff had ‘‘a serious crimi-
nal past’’ and that he had ‘‘paid over $40,000,000 in fines
to the [Securities and Exchange Commission (SEC)].’’
These remarks prompted a commission staff member
to interject that these comments were ‘‘not of relevance
to the planning and zoning commission.’’ The defendant
also added that she was ‘‘very concerned going forward
that there is real good oversight from Greenwich on
how [the plaintiff] deals with this property because he
has not been trustworthy in the first dealings with us
and there are many more dealings to go.’’ She then
added, ‘‘as a citizen and as a next-door neighbor I want
to have a nice development with [the plaintiff], but [he
hasn’t] really been . . . playing ball nicely.’’
D’Andrea subsequently returned to the microphone
to address the issue of the trees. He admitted that a
drawing of the property submitted by the plaintiff mis-
represented the current presence or absence of trees
on the property. He claimed, however, that the trees
that the plaintiff had since removed were present on
the property at the time the plaintiff submitted the appli-
cation. Moreover, he stated that, although the plaintiff
had been removing trees, the plaintiff did not consult
with him about doing so.
Indeed, one member of the commission stated that
the drawing that the plaintiff had submitted was ‘‘incom-
plete’’ because it did not depict certain trees. The chair-
man of the commission asked D’Andrea to work to
reconcile the drawing in light of the information that
Finkbeiner had submitted to the commission, to which
D’Andrea agreed. D’Andrea also agreed that he was
only a ‘‘representative’’ of the plaintiff, and could not
control the plaintiff’s decision to cut trees.
The hearing adjourned with the commission tabling
the decision on whether to approve the application until
the plaintiff or his representatives provided it with the
clarifications and information that it had requested. At
a later time, the commission ultimately approved the
plaintiff’s application ‘‘with very little change or require-
ments from the town . . . .’’
The plaintiff commenced this action on October 12,
2016. In his five count second revised complaint sound-
ing in libel per se, libel per quod, slander per se, slander
per quod, and defamation, the plaintiff alleged that he
had suffered ‘‘reputational damage . . . in his standing
in the community and in his profession’’ because the
defendant falsely accused him of criminal misconduct
and of being untrustworthy. The defendant filed an
answer and six special defenses. In her third special
defense, the defendant claimed that she was immune
from suit for defamation, libel, and slander because she
made these statements in the course of a quasi-judicial
proceeding. The plaintiff responded by moving to strike
this defense as well as the defendant’s first and second
special defenses.
The defendant filed an objection to the plaintiff’s
motion to strike and, in the same pleading, moved to
dismiss the plaintiff’s action, claiming, inter alia, that
the court lacked subject matter jurisdiction over the
plaintiff’s action because the statements that she made
during the commission’s hearing were entitled to abso-
lute litigation immunity. The defendant attached to her
motion to dismiss the transcript of the hearing of the
commission at which she made the alleged defamatory
remarks about the plaintiff and a sworn affidavit of the
defendant’s attorney averring that the transcript was a
true and accurate copy.
In response, the plaintiff filed an objection to the
defendant’s motion to dismiss. The sole exhibit that
the plaintiff attached to his objection was the same
transcript of the commission hearing that the defendant
had attached to her motion to dismiss. Importantly, in
neither his objection to the defendant’s motion to dis-
miss nor at oral argument on the motion did the plaintiff
assert that the court was required to conduct an eviden-
tiary hearing to resolve disputed jurisdictional facts.
On January 23, 2018, the trial court granted the defen-
dant’s motion to dismiss and issued a comprehensive
and well reasoned memorandum of decision. In that
decision, the trial court concluded, on the basis of the
plaintiff’s complaint, the defendant’s affidavit, and the
transcript of the hearing submitted by both parties,
that it did not have subject matter jurisdiction over
the plaintiff’s claims because the statements that the
defendant made about the plaintiff at the commission’s
hearing were entitled to absolute litigation immunity.
In reaching this conclusion, the court determined that
the commission’s hearing, in which it considered
whether to approve the plaintiff’s special permit appli-
cation, constituted a proceeding that was quasi-judicial
in nature. The court also determined that the defen-
dant’s statements were pertinent to the subject matter
of the proceeding because they concerned the plaintiff’s
credibility, which the commission had to weigh when
reviewing the representations he and his agents made to
it in order to decide whether to approve his application.
The plaintiff then filed a motion to reargue and for
reconsideration (motion to reargue) in accordance with
Practice Book §§ 11-11 and 11-12. In this motion, the
plaintiff argued that the court incorrectly concluded
that the commission’s hearing was quasi-judicial in
nature. He also argued that the court improperly consid-
ered whether the defendant’s statements were perti-
nent to the subject matter of the proceeding. The plain-
tiff asserted that the court should have considered
whether the statements were relevant and, ultimately,
should have concluded that they were not. Moreover,
the plaintiff argued that the court applied the wrong
standard for deciding a motion to dismiss. The plaintiff
also asserted, for the first time, that the court was
required to conduct an evidentiary hearing to resolve
jurisdictional facts that were in dispute.2 The defendant
then filed an objection to the plaintiff’s motion to rear-
gue, to which the plaintiff filed a reply.
On May 24, 2018, the court denied the plaintiff’s
motion to reargue and issued a memorandum of deci-
sion setting forth its reasoning. In its memorandum of
decision, the court reiterated its conclusion that the
commission’s hearing on the plaintiff’s application was
quasi-judicial in nature and that the defendant’s state-
ments about the plaintiff were pertinent to the subject
matter of that proceeding. With respect to the plaintiff’s
claim that he was entitled to an evidentiary hearing,
the court stated that it properly based its decision to
grant the motion to dismiss on the complaint and the
transcript of the commission’s hearing. The court also
stated that there were no jurisdictional facts in dispute
that necessitated an evidentiary hearing. This appeal
followed.
I
The plaintiff first claims that the trial court incor-
rectly granted the defendant’s motion to dismiss and
denied his motion to reargue because he was entitled to
an evidentiary hearing to resolve disputed jurisdictional
facts; namely, (1) ‘‘the exact nature of the special permit
and site plan application before [the commission],’’ (2)
whether ‘‘trees had been ‘clear cut’ [by the plaintiff]
without [the commission’s] knowledge or as otherwise
indicated in the site plan,’’ and (3) whether the ‘‘defen-
dant’s comments were . . . relevant or pertinent to
[any] matter raised in the special permit application.’’
The plaintiff argues that, because these jurisdictional
facts were in dispute and no evidentiary hearing was
held, the court improperly concluded that the proceed-
ing of the commission was quasi-judicial in nature and
that the defendant’s statements about the plaintiff were
pertinent to the commission’s proceeding. We disagree.
We first set forth the well settled principles governing
a trial court’s resolution of a pretrial motion to dismiss
for lack of subject matter jurisdiction and our corres-
ponding standard review. ‘‘A motion to dismiss . . .
properly attacks the jurisdiction of the court, essentially
asserting that the plaintiff cannot as a matter of law
and fact state a cause of action that should be heard
by the court. . . . A motion to dismiss tests, inter alia,
whether, on the face of the record, the court is without
jurisdiction. . . . [O]ur review of the court’s ultimate
legal conclusion and resulting [determination] of the
motion to dismiss will be de novo. . . . In undertaking
this review, we are mindful of the well established
notion that, in determining whether a court has subject
matter jurisdiction, every presumption favoring juris-
diction should be indulged. . . .
‘‘Trial courts addressing motions to dismiss . . .
pursuant to [Practice Book] § 10–30 (a) (1) may encoun-
ter different situations, depending on the status of the
record in the case. . . . [L]ack of subject matter juris-
diction may be found in any one of three instances: (1)
the complaint alone; (2) the complaint supplemented
by undisputed facts evidenced in the record; or (3) the
complaint supplemented by undisputed facts plus the
court’s resolution of disputed facts. . . . Different
rules and procedures will apply, depending on the state
of the record at the time the motion is filed. . . .
‘‘[I]f the complaint is supplemented by undisputed
facts established by affidavits submitted in support of
the motion to dismiss . . . and/or public records of
which judicial notice may be taken . . . the trial court,
in determining the jurisdictional issue, may consider
these supplementary undisputed facts and need not
conclusively presume the validity of the allegations of
the complaint. . . . Rather, those allegations are tem-
pered by the light shed on them by the [supplementary
undisputed facts]. . . . If affidavits and/or other evi-
dence submitted in support of a defendant’s motion to
dismiss conclusively establish that jurisdiction is lack-
ing, and the plaintiff fails to undermine this conclusion
with counteraffidavits . . . or other evidence, the trial
court may dismiss the action without further proceed-
ings. . . . If, however, the defendant submits either no
proof to rebut the plaintiff’s jurisdictional allegations
. . . or only evidence that fails to call those allegations
into question . . . the plaintiff need not supply count-
eraffidavits or other evidence to support the complaint,
but may rest on the jurisdictional allegations therein.
. . .
‘‘Finally, where a jurisdictional determination is
dependent on the resolution of a critical factual dispute,
it cannot be decided on a motion to dismiss in the
absence of an evidentiary hearing to establish jurisdic-
tional facts. . . . Likewise, if the question of jurisdic-
tion is intertwined with the merits of the case, a court
cannot resolve the jurisdictional question without a
hearing to evaluate those merits. . . . An evidentiary
hearing is necessary because a court cannot make a
critical factual [jurisdictional] finding based on memo-
randa and documents submitted by the parties.’’ (Cita-
tions omitted; emphasis omitted; footnotes omitted;
internal quotation marks omitted.) Conboy v. State, 292
Conn. 642, 650–54, 974 A.2d 669 (2009).
To the extent that the plaintiff also seeks review of
the court’s denial of his motion to reargue, we review
a court’s decision on this type of motion for an abuse
of discretion. See, e.g., Weiss v. Smulders, 313 Conn.
227, 261, 96 A.3d 1175 (2014); C.R. Klewin Northeast,
LLC v. Bridgeport, 282 Conn. 54, 100–102 and n.39, 919
A.2d 1002 (2007). Similarly, we review a trial court’s
decision to deny a party’s request for an evidentiary
hearing under the abuse of discretion standard. See
Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 102,
952 A.2d 1 (2008); see also St. Denis-Lima v. St. Denis,
190 Conn. App. 296, 303, 212 A.3d 242 (‘‘[w]e review
the denial of a request for an evidentiary hearing under
the abuse of discretion standard’’), cert. denied, 333
Conn. 910, 215 A.3d 734 (2019). ‘‘In determining whether
there has been an abuse of discretion, every reasonable
presumption should be given in favor of the correctness
of the court’s ruling. . . . Reversal is required only
[when] an abuse of discretion is manifest or [when]
injustice appears to have been done.’’ (Internal quota-
tion marks omitted.) Weiss v. Smulders, supra, 261.
This court has stated that ‘‘[a] court is required to hold
an evidentiary hearing before adjudicating a motion to
dismiss only if there is a genuine dispute as to some
[material] jurisdictional fact.’’ Property Asset Manage-
ment, Inc. v. Lazarte, 163 Conn. App. 737, 749, 138 A.3d
290 (2016). ‘‘[I]t is [however] the plaintiff’s burden both
to request an evidentiary hearing and to present evi-
dence that establishes disputed factual allegations in
support of an evidentiary hearing . . . .’’ (Emphasis
added; internal quotation marks omitted.) St. Denis-
Lima v. St. Denis, supra, 190 Conn. App. 306; see also
Walshon v. Ballon Stoll Bader & Nadler, P.C., 121 Conn.
App. 366, 371, 996 A.2d 1195 (2010). ‘‘[If] the plaintiff
fail[s] to do either, [then] the court [may] properly
[decide] the motion on the basis of the pleadings and
affidavits.’’ (Internal quotation marks omitted.) St.
Denis-Lima v. St. Denis, supra, 306; see also Walshon
v. Ballon Stoll Bader & Nadler, P.C., supra, 371. For
the reasons that follow, we conclude that the plaintiff
failed to satisfy his obligation to request an evidentiary
hearing and his burden to present evidence demonstra-
ting that a material jurisdictional fact was in dispute.
Accordingly, the trial court appropriately decided the
defendant’s motion to dismiss on the basis of the com-
plaint, the transcript of the commission’s hearing, and
the affidavit submitted by the defendant. It also did
not abuse its discretion by declining to conduct an
evidentiary hearing and denying the plaintiff’s motion
to reargue.
The plaintiff did not request that the court conduct an
evidentiary hearing until he filed his motion to reargue,
which was after the court had decided the motion to
dismiss. This court has held that a motion to reargue is
generally an inappropriate vehicle for a party to request
that a court conduct an evidentiary hearing when that
party had a prior opportunity to present evidence. See
Gibbs v. Spinner, 103 Conn. App. 502, 507, 930 A.2d 53
(2007); see also Opoku v. Grant, 63 Conn. App. 686,
692–93, 778 A.2d 981 (2001) (motion to reargue should
not be used to correct deficiencies in prior motion).
The plaintiff in the present case had ample opportu-
nity to offer evidence to the court to satisfy his burden
of establishing a genuine dispute as to a material juris-
dictional fact. In response to the defendant’s motion to
dismiss, the plaintiff could have attached counteraffida-
vits or other evidence to his objection to the defendant’s
motion. See Conboy v. State, supra, 292 Conn. 652;
see also Practice Book § 10-31 (a). Indeed, the plaintiff
clearly was aware of his ability to proffer evidence to
the court before it decided the defendant’s motion to
dismiss because he attached the transcript of the com-
mission’s hearing to his objection to the defendant’s
motion. Furthermore, the plaintiff could have requested
an evidentiary hearing before the court decided the
defendant’s motion to dismiss by filing a request with
the court. Practice Book § 10-31 (b). Indeed, it was the
plaintiff’s burden to request an evidentiary hearing. See
St. Denis-Lima v. St. Denis, supra, 190 Conn. App. 306;
see also Walshon v. Ballon Stoll Bader & Nadler, P.C.,
supra, 121 Conn. App. 371. The plaintiff, however, did
not request an evidentiary hearing until after the court
had ruled on the motion to dismiss.3 Because this court
has determined that a party may not use a motion to
reargue to obtain an evidentiary hearing when he or
she had an opportunity to proffer evidence before the
court decided the underlying motion, we conclude that
the plaintiff failed to meet his burden of requesting an
evidentiary hearing.4
We are also unpersuaded that any jurisdictional facts
were in dispute when the court decided the defendant’s
motion to dismiss. The plaintiff, however, contends that
three jurisdictional facts were in dispute. The first juris-
dictional fact that he argues was in dispute concerned
the nature of the special permit application and site
plan before the commission. This fact, however, was
not in dispute when the court decided the defendant’s
motion to dismiss. The complaint states that the hearing
at which the defendant made the statements about the
plaintiff was a ‘‘final meeting . . . held [by] the Green-
wich Planning and Zoning Commission to approve [the]
plaintiff’s application for a new sewer permit . . . .’’
In addition, the transcript of the hearing states that the
commission was considering the ‘‘final site plan and
special permit [for the plaintiff’s property].’’ Thus, it is
undisputed from the complaint and the transcript that
the commission was considering a final site plan and
special permit application for construction on the plain-
tiff’s property, which included installing a sewer line
on the property. To the extent that there was any dis-
pute about the nature of the application, the plaintiff
failed to proffer any evidence to the trial court that
tended to demonstrate that the nature of the commis-
sion’s proceeding was different than as described by
him in his complaint.
The second jurisdictional fact—whether the plaintiff
had cut down trees without the commission’s knowl-
edge or as otherwise indicated in the site plan—was
not material to the court’s decision as to whether the
defendant was absolutely immune from suit for defama-
tion. The trial court determined that the defendant’s
statements were pertinent to the commission’s proceed-
ing because they concerned the plaintiff’s credibility.
The plaintiff’s credibility was put at issue before his
clear-cutting of trees was raised to the commission.
Indeed, the plaintiff’s credibility was put at issue when
he submitted a special permit application and made
representations in support of the application on which
the commission would rely to approve or deny it. Thus,
whether the plaintiff did in fact cut down the trees was
not a material jurisdictional fact.
Finally, the third jurisdictional ‘‘fact’’—whether the
‘‘[d]efendant’s comments were . . . relevant or perti-
nent to [any] matter raised in the special permit applica-
tion’’—is not a question of fact. Rather, the court’s deter-
mination of whether a statement is pertinent to the
subject matter of a proceeding is a legal conclusion.
See Gallo v. Barile, 284 Conn. 459, 467, 935 A.2d 103
(2007) (‘‘[i]n making [the] determination [of whether a
particular statement is made in the course of a judicial
proceeding], the court must decide as a matter of law
whether the allegedly [false and malicious] statements
are sufficiently relevant to the issues involved in a pro-
posed or ongoing judicial proceeding, so as to qualify
for the [immunity]’’ (emphasis added; internal quotation
marks omitted)); see also 1 D. Pope, Connecticut
Actions and Remedies: Tort Law (1993) § 10:12 p. 10-
31 (whether statement is relevant to proceeding is ques-
tion of law for court to decide). To the extent that
the plaintiff’s argument addresses the content of the
defendant’s statements, both the defendant and the
plaintiff proffered a copy of the transcript of the com-
mission’s hearing to the court for its consideration
before it decided the motion to dismiss. The transcript
contained what the defendant said verbatim during the
hearing, and the plaintiff offered no evidence to the
court disputing the accuracy of the transcript. Because
neither the complaint, the transcript of the commis-
sion’s hearing, nor the defendant’s affidavit established
a genuine dispute regarding a material jurisdictional
fact, we conclude that the trial court properly granted
the motion to dismiss and did not abuse its discretion
by denying the plaintiff’s subsequent request for an
evidentiary hearing and by denying his motion to
reargue.5
II
The plaintiff’s second claim is that the trial court
incorrectly determined that it lacked subject matter
jurisdiction over his defamation claim because the
defendant’s statements about the plaintiff that she made
at the commission’s hearing were entitled to absolute
litigation immunity.6 In support of this claim, the plain-
tiff argues that the trial court incorrectly concluded
that (1) the proceeding of the commission, at which it
considered the his special permit application and the
materials submitted in support thereof, was quasi-judi-
cial in nature and (2) the statements about him that the
defendant made to the commission were pertinent to
the commission’s proceeding. We disagree with the
plaintiff.
Before addressing the plaintiff’s two arguments per-
taining to this claim, we begin by considering the well
settled principles and policy interests concerning abso-
lute litigation immunity.7 In sum, absolute litigation
immunity prevents a person from being sued for defa-
mation for a statement made in the course of a judicial
or quasi-judicial proceeding so long as the statement
is pertinent to the subject matter of the proceeding.
See, e.g., Kelley v. Bonney, 221 Conn. 549, 565–66, 606
A.2d 693 (1992). ‘‘Once it is determined that a proceed-
ing is [judicial or] quasi-judicial in nature, the absolute
[immunity] that is granted to statements made in fur-
therance of it extends to every step of the proceeding
until final disposition.’’ (Internal quotation marks omit-
ted.) Craig v. Stafford Construction, Inc., 271 Conn.
78, 84, 856 A.2d 372 (2004). Moreover, ‘‘[t]he effect of
an absolute [immunity] in a defamation action . . . is
that damages cannot be recovered for a defamatory
statement even if it is published falsely and mali-
ciously.’’ Chadha v. Charlotte Hungerford Hospital, 272
Conn. 776, 788, 865 A.2d 1163 (2005).
Our Supreme Court has articulated the public policy
reasons supporting absolute litigation immunity and its
relation to civil actions for defamatory statements made
in the course of judicial and quasi-judicial proceedings:
‘‘The doctrine of absolute immunity as applied to state-
ments made in the context of judicial and quasi-judicial
proceedings is rooted in the public policy of encourag-
ing witnesses, both complaining and testimonial, to
come forward and testify in either criminal or civil
actions. The purpose of affording absolute immunity
to those who provide information in connection with
judicial and quasi-judicial proceedings is that in certain
situations the public interest in having people speak
freely outweighs the risk that individuals will occasion-
ally abuse the [immunity] by making false and malicious
statements. . . . [T]he possibility of incurring the costs
and inconvenience associated with defending a [retalia-
tory] suit might well deter a citizen with a legitimate
grievance from filing a complaint. . . . Put simply,
absolute immunity furthers the public policy of encour-
aging participation and candor in judicial and quasi-
judicial proceedings. This objective would be thwarted
if those persons whom the common-law doctrine was
intended to protect nevertheless faced the threat of suit.
In this regard, the purpose of the absolute immunity
afforded participants in judicial and quasi-judicial pro-
ceedings is the same as the purpose of the sovereign
immunity enjoyed by the state. . . . As a result, courts
have recognized absolute immunity as a [bar to] certain
retaliatory civil actions in order to remove this disincen-
tive and thus encourage citizens to come forward with
complaints or to testify.’’ (Citations omitted; internal
quotation marks omitted.) Rioux v. Barry, 283 Conn.
338, 343–44, 927 A.2d 304 (2007); see also Simms v.
Seaman, 308 Conn. 523, 538, 69 A.3d 880 (2013) (abso-
lute litigation immunity ‘‘was founded [on] the principle
that in certain cases it is advantageous for the public
interest that persons should not be in any way fettered
in their statements, but should speak out the whole
truth, freely and fearlessly’’ (internal quotation marks
omitted)). Moreover, our Supreme Court has stated that
a court faced with determining whether absolute litiga-
tion immunity applies to statements made during a judi-
cial or quasi-judicial proceeding should apply the immu-
nity generously. See, e.g., Gallo v. Barile, supra, 284
Conn. 467 (‘‘[t]he test for relevancy is generous, and
judicial proceeding has been defined liberally to encom-
pass much more than civil litigation or criminal trials’’
(internal quotation marks omitted)).
When deciding whether absolute immunity applies,
however, our Supreme Court has been mindful that
‘‘[a]bsolute immunity . . . is strong medicine . . . .’’
Id., 471. A determination that a defendant’s alleged
defamatory statements are entitled to absolute litigation
immunity closes the courthouse doors to a plaintiff
wishing to sue that defendant for harm that those state-
ments may have caused the plaintiff. See Hopkins v.
O’Connor, 282 Conn. 821, 829, 925 A.2d 1030 (2007).
Thus, ‘‘in determining whether a statement is made in
the course of a judicial proceeding [and, pending its
pertinence to the proceeding, subjecting it to absolute
immunity], it is important to consider whether there is a
sound public policy reason for permitting the complete
freedom of expression that a grant of absolute immunity
provides.’’ (Internal quotation marks omitted.) Id., 839.
Put differently, ‘‘whether and what form of immunity
applies in any given case is a matter of policy that
requires a balancing of interests.’’ Gallo v. Barile, supra,
284 Conn. 471.
In balancing competing interests to determine
whether absolute litigation immunity applies to state-
ments that are pertinent to the judicial or quasi-judicial
proceeding in which they are made, our Supreme Court
has acknowledged that ‘‘[a]bsolute immunity in defama-
tion . . . presents a conflict or antinomy between two
principles equally regarded by the law—the right of the
individual, on [the] one hand, to enjoy his reputation
unimpaired by defamatory attacks, and, on the other
hand, the necessity, in the public interest, of a free and
full disclosure of facts in the conduct of the legislative,
executive and judicial departments of government.’’ Id.,
470. The court, however, has concluded that absolute
immunity shielding a defendant from suit for these types
of statements is often necessary to ‘‘[further] the public
policy of encouraging participation and candor in
[these] proceedings.’’ (Internal quotation marks omit-
ted.) Hopkins v. O’Connor, supra, 282 Conn. 828. Other-
wise, ‘‘[t]his objective would be thwarted if those per-
sons whom the common-law doctrine was intended to
protect nevertheless faced the threat of suit.’’ (Internal
quotation marks omitted.) Id., 828–29. Moreover,
‘‘[w]ith respect to statements made in the course of a
judicial proceeding, it is widely accepted that the pub-
lic’s interest in the unhampered operation of the govern-
ment, when exercising [its judicial] functions, out-
weighs an individual’s interest in the preservation of
reputation.’’ (Internal quotation marks omitted.) Gallo
v. Barile, supra, 284 Conn. 470.
Thus, our Supreme Court has ‘‘consistently . . .
applied the doctrine of absolute immunity to defama-
tion actions arising from judicial or quasi-judicial pro-
ceedings.’’ Rioux v. Barry, supra, 283 Conn. 345. In
making this determination, the court has concluded
that, even though a plaintiff may incur harm as a result
of a defendant’s defamatory statement about him or her,
‘‘the policy concerns underlying absolute immunity—
encouraging complaining and testimonial witnesses to
come forward—[outweigh] the interest of the private
individual in being free from defamation.’’ Id.
In sum, these cases teach important principles of
which we are mindful when deciding whether to shield
the defendant in the present case from suit for her
alleged defamatory statements about the plaintiff.
Indeed, in cases in which a person has been sued for
making allegedly defamatory statements to a govern-
ment body that is engaged in a function that is quasi-
judicial in nature, a court should err on the side of
granting the immunity. That is not to say that a court
should not carefully consider the consequences that
granting absolute immunity might create, and, if the
consequences of absolutely immunizing a defendant
from suit outweigh the benefits, then a court should
determine that the defendant’s statements are not enti-
tled to absolute immunity. A court must be mindful,
however, that a person wishing to speak before a gov-
ernment body is not obligated to weigh beforehand
whether the body before which he or she is about to
speak is performing a quasi-judicial function. Requiring
a person to do this would chill the very engagement
with government bodies that the immunity seeks to
protect and encourage.
Moreover, in the interest of information flowing
freely between citizens and government officials, a
court must liberally construe whether a statement made
during a public hearing is pertinent to the proceeding.
See Gallo v. Barile, supra, 284 Conn. 467. This does
not mean that a person always is permitted to make a
defamatory statement at a public hearing with impunity.
Mindful of these principles, we conclude that the trial
court in the present case correctly determined that the
defendant’s statements were entitled to absolute litiga-
tion immunity.
A
In claiming that the trial court incorrectly determined
that the defendant’s statements about the plaintiff at
the commission’s hearing were entitled to absolute liti-
gation immunity, the plaintiff first argues that the court
improperly concluded that the commission’s consider-
ation of the plaintiff’s final site plan and special permit
application constituted a proceeding that was quasi-
judicial in nature. The plaintiff argues that all six factors
used by our Supreme Court in Kelley v. Bonney, supra,
221 Conn. 567–71, to determine whether a proceeding
is quasi-judicial in nature militate against concluding
that the proceeding at which the commission consid-
ered his special permit application was quasi-judicial.8
We disagree.
Our Supreme Court has stated that ‘‘[t]he judicial
proceeding to which the [absolute litigation] immunity
attaches . . . includes any hearing before a tribunal
which performs a judicial function, ex parte or other-
wise, and whether the hearing is public or not. It
includes for example, lunacy, bankruptcy, or naturaliza-
tion proceedings, and an election contest. It extends
also to the proceedings of many administrative officers,
such as boards and commissions, so far as they have
powers of discretion in applying the law to the facts
which are regarded as judicial or quasi-judicial, in char-
acter.’’ (Internal quotation marks omitted.) Petyan v.
Ellis, 200 Conn. 243, 246, 510 A.2d 1337 (1986).
Furthermore, our Supreme Court has articulated six
factors that may be relevant in determining whether
a proceeding is quasi-judicial in nature. See Kelley v.
Bonney, supra, 221 Conn. 567–71. In making this deter-
mination, the court considered ‘‘whether the body has
the power to: (1) exercise judgment and discretion; (2)
hear and determine or to ascertain facts and decide;
(3) make binding orders and judgments; (4) affect the
personal or property rights of private persons; (5) exam-
ine witnesses and hear the litigation of the issues on a
hearing; and (6) enforce decisions or impose penalties.’’
Id., 567. These factors, however, are not exclusive nor
must all factors militate in favor of a determination that
a proceeding is quasi-judicial in nature for a court to
conclude that the proceeding is, in fact, quasi-judicial.
See Mercer v. Blanchette, 133 Conn. App. 84, 91–92, 33
A.3d 889 (2012). Indeed, in addition to considering the
six factors, our Supreme Court stated in Kelley that ‘‘it
is important [for a court] to consider whether there is a
sound public policy reason for permitting the complete
freedom of expression that a grant of absolute immunity
provides.’’ Kelley v. Bonney, supra, 567. In the present
case, we conclude, based on the record and the statutes
and regulations applicable to the commission, that the
first five factors weigh in favor the determination that
the commission’s proceeding concerning the plaintiff’s
special permit application was quasi-judicial in nature.9
With respect to the first factor—whether the commis-
sion exercised discretion in deciding whether to
approve the plaintiff’s special permit application; id.;
the plaintiff contends that, when ‘‘determin[ing]
whether the [plaintiff’s] proposal [met] the standards
set forth in the zoning regulations,’’ the commission
was not required to ‘‘exercise [any] judgment [or] dis-
cretion in deciding whether to grant or deny the [plain-
tiff’s] special permit application.’’ In essence, the plain-
tiff claims that, when faced with a special permit
application, the commission has such minimal discre-
tion in making a decision on the application that the
commission is, in effect, a rubber stamp for approving it.
Our Supreme Court, however, has concluded that
‘‘the special permit process is, in fact, discretionary.’’
Irwin v. Planning & Zoning Commission, 244 Conn.
619, 626, 711 A.2d 675 (1998); see also St. Joseph’s High
School, Inc. v. Planning & Zoning Commission, 176
Conn. App. 570, 594, 170 A.3d 73 (2017) (‘‘[a] zoning
commission can exercise its discretion during the
review of the proposed special [permit], as it applies
the regulations to the specific application before it’’
(internal quotation marks omitted)). In support of this
conclusion, the court in Irwin stated that ‘‘[w]hen ruling
upon an application for a special permit . . . it is the
function of a zoning board or commission to decide
within prescribed limits and consistent with the exer-
cise of [its] legal discretion, whether a particular section
of the zoning regulations applies to a given situation
and the manner in which it does apply. . . . In applying
the law to the facts of a particular case, the board is
endowed with a liberal discretion, and its action is sub-
ject to review by the courts only to determine whether
it was unreasonable, arbitrary or illegal.’’ (Citations
omitted; internal quotation marks omitted.) Irwin v.
Planning & Zoning Commission, supra, 627–28.
Moreover, similar to the plaintiff in the present case,
the plaintiff in Irwin argued ‘‘that the [c]ommission
ha[d] no independent discretion to deny a plan [that]
satisfies the standards contained in the special permit
regulations.’’ (Internal quotation marks omitted.) Id.,
628. Our Supreme Court, however, rejected that claim,
stating that ‘‘[a]lthough it is true that the zoning commis-
sion does not have discretion to deny a special permit
when the proposal meets the standards, it does have
discretion to determine whether the proposal meets the
standards set forth in the regulations. If, during the
exercise of its discretion, the zoning commission
decides that all of the standards enumerated in the
special permit regulations are met, then it can no longer
deny the application. The converse is, however, equally
true. Thus, the zoning commission can exercise its dis-
cretion during the review of the proposed special excep-
tion, as it applies the regulations to the specific applica-
tion before it.’’ (Emphasis omitted.) Id.
In the present case, the commission did, indeed, exer-
cise such discretion. In fact, the Greenwich zoning regu-
lations require it. Section 6-17 (a) of the Greenwich
Municipal Code, which pertains to authorizations for
use by special permit, provides in relevant part that the
‘‘[c]ommission shall determine that the proposed use
conforms with the overall intent of these regulations
and the purposes of each zone . . . .’’ (Emphasis
added.) Moreover, § 6-17 (d) states that the commission
‘‘shall consider all the standards contained in [§] 6-15
(a)’’ and that it ‘‘shall consider’’ twelve enumerated
attributes of the proposed use in the special permit
application.10 (Emphasis added.) In its review of the
application, ‘‘the [c]ommission [is allowed to] require
[the applicant] for [a] special permit to prepare and
submit any additional data and studies as necessary to
allow the [c]ommission to arrive at its determinations.’’
Greenwich Municipal Code § 6-17 (e). Thus, the com-
mission’s decision on the plaintiff’s special permit appli-
cation was not merely a foregone conclusion, as the
plaintiff suggests. Indeed, the commission was obli-
gated to deliberate over the plaintiff’s special permit
application in accordance with the Greenwich zoning
regulations and was permitted to require that the plain-
tiff provide data and studies before the commission
ultimately exercised its discretion and determined
whether the application complied with the standards
set forth in the zoning regulations.
Moreover, the transcript of the commission’s hearing
is replete with examples of the commission exercising
its discretion by entertaining and engaging in discussion
over the plaintiff’s special permit application. This dis-
cussion, at times, involved the standards set forth in
§ 6-17 of the Greenwich Municipal Code. For example,
the discussion at the hearing encompassed whether the
placement of the sewer line, as proposed, would impact
(1) a historic stone wall, (2) the health of trees that
may have important aesthetic value to the neighbor-
hood, and (3) pavement, drainage, and utilities.11 For
these reasons, we conclude that the first factor militates
in favor of determining that the commission’s proceed-
ing pertaining to the plaintiff’s special permit applica-
tion was quasi-judicial in nature.
The second factor—whether the commission could
ascertain, hear, and decide facts; see Kelley v. Bonney,
supra, 221 Conn. 567; also militates in favor of determin-
ing that the proceeding was quasi-judicial in nature.
Indeed, the commission was empowered to require that
the plaintiff, as a special permit applicant, ‘‘prepare and
submit any additional data and studies as necessary to
allow the [c]ommission to arrive at its determinations.’’
Greenwich Municipal Code § 6-17 (e). Moreover, at the
public hearing, the commission was engaged in fact
gathering concerning the plaintiff’s application; it heard
the statements of D’Andrea, Finkbeiner, and the defen-
dant. Because the commission was engaged in—and,
indeed, empowered to engage in—fact-finding per-
taining to the plaintiff’s special permit application, the
second factor weighs in favor of the determination that
the proceeding was quasi-judicial in nature.
Likewise, the third factor—whether the commission
was empowered to ‘‘make binding orders and judg-
ments’’; Kelley v. Bonney, supra, 221 Conn. 567; weighs
in favor of determining that the proceeding of the com-
mission was quasi-judicial in nature. The hearing at
which the defendant made statements about the plain-
tiff was a ‘‘final meeting . . . to approve [the] plaintiff’s
application for a new sewer permit . . . .’’ Moreover,
the chairman of the commission noted that a decision
on the plaintiff’s application would be left ‘‘open,’’
which meant that ‘‘[the plaintiff had] work to do before
[coming] back to [the commission].’’ From this undis-
puted information contained in the plaintiff’s complaint
and the transcript of the hearing, as well as the statutes
and regulations applicable to the commission, we con-
clude that the commission had the ability to approve
the plaintiff’s application, deny it, or table the issue
until a further proceeding. Thus, the third factor weighs
in favor of the determination that the commission’s
proceeding was quasi-judicial in nature.
The fourth factor—whether the commission had the
power to ‘‘affect the personal or property rights of pri-
vate persons’’; Kelley v. Bonner, supra, 221 Conn. 567;
also supports a conclusion that the commission’s pro-
ceeding was quasi-judicial in nature. Our Supreme
Court has recognized that ‘‘[z]oning regulations . . .
are in derogation of [common-law] property rights
. . . .’’ Planning & Zoning Commission v. Gilbert, 208
Conn. 696, 705, 546 A.2d 823 (1988). Indeed, if the com-
mission applied the standards under § 6-17 of the Green-
wich Municipal Code and denied the plaintiff’s special
permit application, it would restrict the plaintiff’s ability
to use his property in a manner he desires. If, however,
the commission approved his application, the sewer
line that the plaintiff would place on his property might
affect the properties of those in the neighborhood. For
these reasons, the fourth factor weighs in favor of the
determination that the commission’s proceeding was
quasi-judicial in nature.
The fifth factor—whether the commission had the
power to ‘‘examine witnesses and hear the litigation of
the issues [at] a hearing’’; Kelley v. Bonney, supra, 221
Conn. 567; also militates in favor of concluding that the
commission’s proceeding was quasi-judicial in nature.
The transcript of the hearing indicates that multiple
witnesses spoke about the plaintiff’s application during
the hearing, including D’Andrea, Finkbeiner, and the
defendant. Although these individuals were not
addressing the commission under the sanction of an
oath, the fact that a witness is not under oath when
providing testimony at a hearing does not weigh against
determining that a proceeding is quasi-judicial in nature.
See Petyan v. Ellis, supra, 200 Conn. 251 (‘‘[t]he com-
mon law absolute [immunity] itself is not confined to
the testimony of a witness but extends to any statement
made in the course of a judicial proceeding, whether
or not given under oath, so long as it is pertinent to
the controversy’’); see also 3 Restatement (Second),
Torts, Witnesses in Judicial Proceedings § 588, com-
ment (b), p. 250 (1977) (‘‘[Absolute immunity for defam-
atory statements] protects a witness while testifying. It
is not necessary that he give his testimony under oath;
it is enough that he is permitted to testify.’’). Moreover,
the absolute immunity applies to ‘‘witnesses, whether
they testify voluntarily or not . . . .’’ (Footnote omit-
ted.) W. Keeton et al., Prosser and Keeton on the Law
of Torts (5th Ed. 1984) § 114, pp. 816–17. Because the
commission heard the testimony of several witnesses
at a public hearing on the plaintiff’s application, we
conclude that the fifth factor supports the conclusion
that the commission’s proceeding was quasi-judicial
in nature.
Lastly, we weigh the final consideration that our
Supreme Court utilizes to evaluate whether a govern-
ment body’s proceeding is quasi-judicial in nature: is
there ‘‘a sound public policy reason for permitting the
complete freedom of expression that a grant of absolute
immunity provides.’’ Kelley v. Bonney, supra, 221 Conn.
567.12 In analyzing whether public policy interests sup-
port a conclusion that a defendant’s statements should
be entitled to absolute litigation immunity, we are mind-
ful that ‘‘[t]he rationale for extending the absolute
[immunity] to statements made during quasi-judicial
proceedings rests in the public policy that every citizen
should have the unqualified right to appeal to govern-
mental agencies for redress without the fear of being
called to answer in damages . . . . The absolute
[immunity] for communications in the context of quasi-
judicial proceedings is intended to protect the integrity
of the process and ensure that the quasi-judicial deci-
sion-making body gets the information it needs. The
policy furthering the general public’s right to appeal
freely to governmental entities for redress without the
fear of lawsuits for libel based on statements made in
the context of a quasi-judicial proceeding is of such
importance that it is entitled to protection even at the
expense of damage to a particular individual.’’ (Foot-
notes omitted.) 50 Am. Jur. 2d 666–67, Libel and Slander
§ 283 (2017). Indeed, ‘‘every judicial or quasi-judicial
proceeding creates a potential defamation claim based
upon the statements made in connection therewith. Pro-
tection against such claims is essential to ensure candor
within and fair access to the proceedings.’’ (Emphasis
in original; internal quotation marks omitted.) MacDer-
mid, Inc. v. Leonetti, 310 Conn. 616, 636, 79 A.3d 60
(2013).
These important policy interests that are fundamental
to encouraging citizen participation in the deliberations
and decisions of their local governments are implicated
in the present case. Indeed, the defendant attended a
hearing of her town’s planning and zoning commission
at which the commission was considering whether to
approve the plaintiff’s application, which involved, in
part, the placement of a sewer line on his property that
could affect the defendant’s property and the neighbor-
hood in which she resides. After D’Andrea discussed
the site plan and the special permit application and
answered questions from members of the commission,
members of the public were invited to offer comments.
In offering remarks at the hearing, the defendant pro-
vided information to the commission that arguably was
helpful to that body in assessing the accuracy and truth-
fulness of the representations made in the plaintiff’s
submissions.
We conclude that the strong public policy interests
in allowing a citizen to offer information to a local
government commission on an issue under consider-
ation by it without fear of being sued weighs heavily
in favor of determining that the commission’s proceed-
ing in this case was quasi-judicial in nature. Indeed, a
private citizen wishing to comment on an issue under
consideration by a government body at a hearing should
not be expected to conduct on the spot legal research
to make sure the body before which he or she is about
to speak is performing a quasi-judicial function. If we
were to conclude that the defendant’s statements were
not entitled to absolute litigation immunity in this case,
then Connecticut residents, fearing suit for defamation,
may be chilled from offering information to their local
governments on issues related to important decisions
that local government officials must make. In light of
these policy interests, we conclude that the commis-
sion’s proceeding, at which it deliberated over the plain-
tiff’s special permit application, was quasi-judicial in
nature because the first five factors used by our
Supreme Court in Kelley v. Bonney, supra, 221 Conn.
567, and public policy reasons support this conclusion.
B
The plaintiff next argues that, even if the commis-
sion’s consideration of the plaintiff’s final site plan and
special permit application constituted a proceeding that
was quasi-judicial in nature, the court improperly con-
cluded that the defendant’s statements about the plain-
tiff were pertinent to the subject matter of the commis-
sion’s proceeding. Instead, the plaintiff argues that
these statements were neither pertinent nor relevant
to the commission’s proceeding because whether the
plaintiff (1) ‘‘[was] not . . . trustworthy,’’ (2) ‘‘[had] a
serious criminal past,’’ and (3) had ‘‘paid over
$40,000,000 in fines to the SEC’’ was completely unre-
lated to ‘‘the application and whether a certified site
plan complies with municipal regulations.’’ Moreover,
the plaintiff contends that his credibility was neither
pertinent nor relevant to whether his engineers would
place the sewer line on his property in accordance with
the site plan and whether he had the right to cut trees
on his property. The plaintiff asserts that, because the
defendant’s statements about the plaintiff’s criminal
past and trustworthiness were neither pertinent nor
relevant to the commission’s approval of his special
permit application, the court incorrectly concluded that
the defendant was shielded from suit for defamation
by absolute litigation immunity. We disagree.13
It is well settled that ‘‘[a]t common law, communica-
tions uttered or published in the course of judicial pro-
ceedings are [entitled to absolute immunity] so long as
they are in some way pertinent to the subject of the
controversy. . . . [L]ike the [immunity] which is gener-
ally applied to pertinent statements made in formal
judicial proceedings, an absolute [immunity] also atta-
ches to relevant statements made during administrative
proceedings which are quasi-judicial in nature. . . .
Once it is determined that a proceeding is quasi-judicial
in nature, the absolute [immunity] that is granted to
statements made in furtherance of it extends to every
step of the proceeding until final disposition.’’ (Citation
omitted; internal quotation marks omitted.) Chadha v.
Charlotte Hungerford Hospital, supra, 272 Conn.
787–88.
Whether statements are pertinent to the subject mat-
ter of that proceeding is a question of law for the court
to decide. See, e.g., Gallo v. Barile, supra, 284 Conn.
467; see also 1 D. Pope, supra, § 10:12, p. 10-31 (‘‘[i]t is
a question of law for the court to decide whether [a]
defamatory [statement] is relevant or material to the
particular judicial proceeding’’). ‘‘In making such a
determination, the test is not one of legal relevance,
but rather whether the statement has some relation to
the judicial proceeding.’’ D. Pope, supra, § 10:12, p. 10-
31. Importantly, ‘‘[t]he test for relevancy is generous.’’
(Emphasis added.) Gallo v. Barile, supra, 467. This
court has tempered this standard, however, stating that,
‘‘[a]lthough the test for relevance is very generous, we
must balance it against the requirement to construe the
evidence in the light most favorable to jurisdiction.’’
Chamerda v. Opie, 185 Conn. App. 627, 645, 197 A.3d
982, cert. denied, 330 Conn. 953, 197 A.3d 893 (2018).
Furthermore, this court has held that an alleged
defamatory statement made in the course of a judicial
or quasi-judicial proceeding that concerns the credibil-
ity of an interested party or witness is pertinent as a
matter of law to the subject matter of the proceeding
and thus is entitled to absolute litigation immunity. See
Dlugokecki v. Vieira, 98 Conn. App. 252, 259, 907 A.2d
1269 (‘‘[i]n assessing the credibility of speakers at a
public hearing, or the reliability of information provided
in support of or in opposition to a pending application,
statements as to the motivation of an abutting property
owner could be pertinent to the subject of the contro-
versy’’ (emphasis added; internal quotation marks omit-
ted)), cert. denied, 280 Conn. 951, 912 A.2d 483 (2006);
Alexandru v. Dowd, 79 Conn. App. 434, 438–41, 830
A.2d 352 (defendant’s alleged defamatory statements
were pertinent to proceeding because plaintiff had put
her emotional state and physical condition at issue,
which were pertinent to the subject of the reliability of
the plaintiff’s expert witnesses), cert. denied, 266 Conn.
925, 835 A.2d 471 (2003); cf. Mercer v. Blanchette, supra,
133 Conn. App. 94 (defendant panel member’s state-
ments entitled to absolute litigation immunity
‘‘[b]ecause the . . . statements . . . whether true or
not, related to the subject matter of the proceeding in
that the defendant was expressing his basis for ques-
tioning the plaintiff’s credibility’’). This court also has
determined that a person can put his or her credibility
at issue by making a representation to a government
body that concerns a matter on which that body is
deliberating. See Dlugokecki v. Vieira, supra, 258–59
(plaintiff put credibility at issue by making representa-
tions to commission in opposition to defendant’s appli-
cation, to which defendant responded ‘‘by exposing the
plaintiff’s bias or improper motive for making negative
comments [about his application]’’).
Turning to the present case, the defendant stated
to the commission that the plaintiff had been ‘‘very
disrespectful’’ toward the neighbors in the manner in
which he was making changes to his property. After
expressing some concern for the welfare of the trees
if the sewer line was placed in the manner proposed in
the application, the defendant stated to the commission
that the plaintiff (1) ‘‘[was] not . . . trustworthy,’’ (2)
‘‘[had] a serious criminal past,’’ and (3) that he had
‘‘paid over $40,000,000 in fines to the SEC.’’
Because the plaintiff put his credibility at issue by
submitting a special permit application that was accom-
panied by representations on which the commission
would rely to approve or deny the application, this
court must determine not simply whether the alleged
defamatory statements were pertinent to the commis-
sion’s evaluation of the standards set forth in § 6-17 of
the Greenwich Municipal Code and its ultimate decision
on the plaintiff’s application; more precisely, we must
decide whether the defendant’s statements were perti-
nent to the plaintiff’s credibility and, thus, the reliability
of the representations he and those representing him
made to the commission in support of his application.
Mindful of this analytical framework, we consider each
of the plaintiff’s alleged defamatory statements and con-
clude that each was pertinent to the plaintiff’s credi-
bility.
The first statement—that the defendant believed that
the plaintiff was not trustworthy—clearly is probative
of whether the plaintiff should be believed. This court
has already held that statements regarding the reliability
of testimony or evidence that an interested person or
witness has offered during a proceeding is, indeed, per-
tinent to the subject matter of that proceeding. See
Dlugokecki v. Vieira, supra, 98 Conn. App. 257–59; Alex-
andru v. Dowd, supra, 79 Conn. App. 440–41; cf. Mercer
v. Blanchette, supra, 133 Conn. App. 94. In the present
case, the defendant’s comment that the plaintiff was not
trustworthy addressed whether, from her knowledge
of the plaintiff’s reputation and in her opinion, she
believed that the plaintiff’s representations were reli-
able. Under the ‘‘generous’’ standard for determining
whether a statement is pertinent to the subject matter
of a quasi-judicial proceeding; see Gallo v. Barile, supra,
284 Conn. 467; the defendant’s statement concerning
the plaintiff’s untrustworthiness was pertinent to the
proceeding because it undoubtedly concerned the plain-
tiff’s credibility.
Turning to the defendant’s comments concerning the
plaintiff’s alleged criminal history and misconduct, we
conclude that these, too, were pertinent to his credibil-
ity and, thus, the reliability of the representations that
he and his representatives made to the commission in
support of his special permit application. Indeed, albeit
in the context of impeaching a witness, our legislature
and the Connecticut Code of Evidence recognize that
a person’s criminal history can bear on that person’s
credibility. See General Statutes § 52-145 (b) (‘‘[a] per-
son’s . . . conviction of crime may be shown for the
purpose of affecting his credibility’’); Conn. Code Evid.
§ 6-7 (a). Moreover, evidence of specific acts of conduct
that are indicative of a lack of veracity may also be
used to discredit the reliability of a person’s representa-
tions. See Conn. Code Evid. § 6-6 (b).
In the present case, the defendant offered what could
be considered either testimony supporting a conclusion
that the defendant had been convicted of a crime or
that he had engaged in conduct that evidences a lack
of veracity. Indeed, the defendant’s statement that the
plaintiff had a ‘‘serious criminal past’’ easily could be
interpreted as an offer by the defendant of information
to the commission that the defendant had been con-
victed of a crime.14 In addition, her comment that the
SEC had imposed a $40,000,000 fine on the defendant
reasonably could be interpreted as the defendant’s
offering—albeit imprecisely—information that the
plaintiff previously engaged in conduct that is indicative
of him being dishonest. Indeed, the SEC regularly sanc-
tions individuals for engaging in dishonest conduct. See
Kornman v. Securities & Exchange Commission, 592
F.3d 173, 187 (D.C. Cir. 2010) (stating that ‘‘the impor-
tance of honesty for a securities professional is so para-
mount that [the SEC has sanctioned] individuals even
when the conviction was based on dishonest conduct
unrelated to securities transactions or securities busi-
ness’’ (internal quotation marks omitted)).
The defendant’s statements reasonably could be con-
strued as information being offered to the commission
that tended to demonstrate that the plaintiff’s represen-
tations in support of his application were unreliable.
Indeed, the credibility of the representations in support
of the application that the plaintiff and his agents made
to the commission was necessarily pertinent to the sub-
ject matter of the proceeding, which was to determine
whether the commission should approve the plaintiff’s
application based, in part, on the plaintiff’s representa-
tions. Moreover, because the test for whether a state-
ment is pertinent to a proceeding is ‘‘generous’’; see
Gallo v. Barile, supra, 284 Conn. 467; we conclude that
the defendant’s statements regarding the plaintiff’s
alleged criminal history and other misconduct, which
concerned his credibility, fell within the ambit of what
was pertinent to the subject matter of the commis-
sion’s proceeding.
In affirming the judgment of the trial court, we take
this occasion to express our concern that this case
arguably lies near the outer boundaries of the public
policy justifications that underlie the absolute litigation
immunity doctrine. This decision should not be con-
strued to indicate that such immunity will always
extend to any generalized attack on the character of a
person who has made factual representations in a judi-
cial or quasi-judicial proceeding. If, for example, the
defendant had made defamatory statements about the
plaintiff that bore less of a connection to his veracity,
then we may be disinclined to conclude that such
defamatory statements should enjoy the ‘‘strong medi-
cine’’ of immunity. We leave, however, those issues to
a later day.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The press was in attendance at the hearing. A local newspaper published
parts of the defendant’s statement, which included her allegation that the
plaintiff was a ‘‘criminal’’ and that he has ‘‘a serious criminal past and paid
over $40 million in fines.’’ ‘‘Deer Park Clear-Cutting without P+Z Consent
Stalls Thomas Priore’s Dream House,’’ Greenwich Free Press, January 17,
2016, available at https://greenwichfreepress.com/news/government/deer-
park-clear-cutting-without-pz-consent-stalls-thomas-priores-greenwich-
dream-house-56771/ (last visited March 20, 2020).
2
The plaintiff attached two exhibits to his motion to reargue. The first is
the transcript of the oral argument on the defendant’s motion to dismiss.
The second is a memorandum of decision issued in Pursuit Partners, LLC
v. UBS AG, Superior Court, judicial district of Stamford-Norwalk, Docket
No. CV-XX-XXXXXXX-S (July 3, 2014). The plaintiff asserted in his motion to
reargue that this decision bolstered his claim that the trial court should
have provided an evidentiary hearing.
3
At oral argument before this court, the plaintiff stated that he did not
request an evidentiary hearing before the trial court decided the defendant’s
motion to dismiss because he believed that the trial court would deny the
defendant’s motion to dismiss. This is a classic example of a party improperly
using a motion to reargue to obtain a second bite of the apple. See Gibbs
v. Spinner, supra, 103 Conn. App. 507.
4
The plaintiff asserts that this court’s decision in Hayes Family Ltd.
Partnership v. Glastonbury, 132 Conn. App. 218, 219–24, 31 A.3d 429 (2011),
supports his claim that this court should reverse the trial court’s granting
of the motion to dismiss and remand with instructions to the trial court to
conduct an evidentiary hearing. In its memorandum of decision concerning
the plaintiff’s motion to reargue, the trial court stated, and we agree, that
Hayes Family Ltd. Partnership is ‘‘inapposite’’ to the present case.
In that case, the trial court granted the defendant’s motion to dismiss
based on the complaint and the affidavits submitted by both parties, even
though a ‘‘critical fact’’ remained in dispute. Hayes Family Ltd. Partnership
v. Glastonbury, supra, 132 Conn. App. 223–24. Thus, this court reversed
the trial court’s judgment and remanded with instructions to conduct an
evidentiary hearing on the factual issue in dispute. Id., 224.
The present case clearly is distinguishable from Hayes Family Ltd. Part-
nership. Indeed, the plaintiff has failed to satisfy his burden of proffering
evidence and establishing that a genuine dispute exists as to a material
jurisdictional fact. See St. Denis-Lima v. St. Denis, supra, 190 Conn. App.
306; Property Asset Management, Inc. v. Lazarte, supra, 163 Conn. App.
749. Thus, we conclude that Hayes Family Ltd. Partnership does not control
our decision on the plaintiff’s claim that the trial court incorrectly denied
him an evidentiary hearing.
5
In his appellate brief, the plaintiff states that the trial court deprived
him of his due process rights and his right to access the court system, as
guaranteed by article first, § 10, of the Connecticut constitution, by not
applying the proper standard when deciding the defendant’s motion to dis-
miss and by denying him an evidentiary hearing on jurisdictional facts that,
he claims, were in dispute. Because we conclude that those claims are
inadequately briefed, we decline to address them. See State v. Randolph,
284 Conn. 328, 375 n.12, 933 A.2d 1158 (2007) (state constitutional claims
that are inadequately briefed are deemed abandoned).
6
‘‘A defamatory statement is defined as a communication that tends to
harm the reputation of another as to lower him in the estimation of the
community or to deter third persons from associating or dealing with him
. . . . To establish a prima facie case of defamation, the plaintiff must
demonstrate that: (1) the defendant published a defamatory statement; (2)
the defamatory statement identified the plaintiff to a third person; (3) the
defamatory statement was published to a third person; and (4) the plaintiff’s
reputation suffered injury as a result of the statement.’’ (Citations omitted;
internal quotation marks omitted.) Cweklinsky v. Mobil Chemical Co., 267
Conn. 210, 217, 837 A.2d 759 (2004). ‘‘Defamation is comprised of the torts
of libel and slander. . . . Slander is oral defamation. . . . Libel . . . is
written defamation.’’ (Citation omitted; internal quotation marks omitted.)
Lega Siciliana Social Club, Inc. v. St. Germaine, 77 Conn. App. 846, 851–52,
825 A.2d 827, cert. denied, 267 Conn. 901, 838 A.2d 210 (2003).
7
‘‘Absolute immunity for defamatory statements made in the course of
judicial proceedings has been recognized by common-law courts for many
centuries . . . .’’ Simms v. Seaman, 308 Conn. 523, 531, 69 A.3d 880 (2013);
see also Villages, LLC v. Longhi, 166 Conn. App. 685, 699, 142 A.3d 1162,
cert. denied, 323 Conn. 915, 149 A.3d 498 (2016). The courts of this state
have also ‘‘long recognized the litigation [immunity].’’ Simms v. Seaman,
supra, 536; see also Villages, LLC v. Longhi, supra, 699.
8
Furthermore, the plaintiff contends that, when determining whether to
approve a special permit, the commission is performing an inherently
‘‘administrative’’ function. In stating this, the plaintiff assumes that a proceed-
ing that is ‘‘administrative’’ in nature cannot be quasi-judicial. The plaintiff,
however, relies on a false dichotomy, because our Supreme Court has stated
that a proceeding can be both administrative and quasi-judicial. See Kauf-
man v. Zoning Commission, 232 Conn. 122, 150, 653 A.2d 798 (1995) (‘‘[t]he
discretion of a legislative body, because of its constituted role as formulator
of public policy, is much broader than that of an administrative board,
which serves a quasi-judicial function’’ (emphasis added)); see also Petyan
v. Ellis, 200 Conn. 243, 246, 510 A.2d 1337 (1986) (‘‘administrative officers,
such as boards and commissions’’ are quasi-judicial if they possess discre-
tion in applying law to facts (emphasis added)). Indeed, ‘‘[a]dministrative
enforcement agencies often perform multiple functions, some but not all
of which are quasi-judicial. [For example] [c]onducting hearings on the
prosecution of violations resembles the inherently discretionary roles of
judge and prosecutor, and state administrative proceedings are sufficiently
comparable to judicial proceedings to warrant the extension of immunity
to an administrative hearing officer engaging in a function that is quasi-
judicial in nature.’’ (Emphasis added; footnotes omitted.) 2 Am. Jur. 2d
522, Administrative Law § 562 (2014).
9
The trial court concluded that the sixth factor—whether the body has
the power to ‘‘enforce decisions or impose penalties’’—is ‘‘inapplicable’’ to
the present case. Even if we assume, without deciding, that the commission
lacks this power and, thus, that this factor weighs in favor of the plaintiff,
we nevertheless conclude that the commission’s proceeding was quasi-
judicial in nature because the other five factors support this conclusion.
10
‘‘In reviewing special permits, the . . . [c]ommission shall consider all
the standards contained in [§] 6-15 (a). In granting any special permit the
[c]ommission shall consider in each case whether the proposed use will:
‘‘(1) Be in accordance with the Plan of Development.
‘‘(2) Not prevent or inhibit the orderly growth of the retail business devel-
opment of the area.
‘‘(3) Not adversely affect storm drainage, sewerage disposal or other
municipal facilities. (6/11/86)
‘‘(4) Not materially adversely affect adjacent areas located within the
closest proximity to the use.
‘‘(5) Not materially obstruct significant views which are important ele-
ments in maintaining the character of the Town for the purpose of promoting
the general welfare and conserving the value of buildings.
‘‘(6) Preserve or enhance important open space and other features of the
natural environment and protect against deterioration of the quality of the
environment, as related to the public health, safety and welfare. (6/11/86)
‘‘(7) Not interfere with pedestrian circulation, most particularly as related
to retail shopping patterns.
‘‘(8) Not adversely affect safety in the streets nor increase traffic conges-
tion in the area so as to be inconsistent with an acceptable level of service
nor interfere with the pattern of highway circulation. (6/11/86)
‘‘(9) Be in scale with and compatible with surrounding uses, buildings,
streets and open spaces.
‘‘(10) Preserve land, structures or features having special historical, cul-
tural, or architectural merit. (3/1/82)
‘‘(11) Will not materially adversely affect residential uses, nor be detrimen-
tal to a neighborhood or its residents, nor alter a neighborhood’s essential
characteristics. (6/13/84)
‘‘(12) Preserve where possible existing housing stock so as to maintain
and contribute to a diversity of housing opportunities within the Town. (6/
11/86).’’ Greenwich Municipal Code § 6-17 (d).
11
Indeed, commission member Margarita Alban, in an exchange with D’An-
drea, raised § 6-17 of the Greenwich Municipal Code and one of the stan-
dards—a special permit’s effect on the character of the town and the neigh-
borhood—of that regulation that requires the commission to consider when
deciding whether to approve a special permit. Alban offered to read § 6-17
aloud, to which D’Andrea declined.
12
In determining whether statements are entitled to absolute immunity,
our Supreme Court has utilized six factors to determine whether a proceed-
ing is quasi-judicial in nature and, as part of a more overarching inquiry,
whether public policy justifies entitling statements to absolute immunity
under the circumstances. See Craig v. Stafford Construction, Inc., supra,
271 Conn. 85, 92–93; Kelley v. Bonney, supra, 221 Conn. 567, 571. We construe
these analyses to be two separate inquiries. The first analysis considers
whether a proceeding is quasi-judicial in nature by assessing whether the
government body conducting the proceeding has powers that are character-
istic of a body acting in a quasi-judicial capacity. See Craig v. Stafford
Construction, Inc., supra, 271 Conn. 84–90; Kelley v. Bonney, supra, 221
Conn. 567–71. The second inquiry asks, regardless of whether a proceeding
is quasi-judicial in nature, should the statements at issue made during the
proceeding be entitled to absolute immunity as a matter of public policy.
See Craig v. Stafford Construction, Inc., supra, 271 Conn. 85, 95-96; Kelley
v. Bonney, supra, 221 Conn. 571; Mercer v. Blanchette, supra, 133 Conn.
App. 91–92.
13
On appeal, the plaintiff claims that the trial court incorrectly analyzed
whether the defendant’s statements were ‘‘pertinent’’ to the subject matter
of the proceeding. Instead, he asserts that the court should have considered
whether the statements were ‘‘relevant’’ because the statements were made
during a quasi-judicial proceeding, not a judicial proceeding. We are unper-
suaded, however, because the terms ‘‘pertinent’’ and ‘‘relevant’’ have been
used interchangeably by our courts, and no courts have attached different
meanings to these terms when determining whether a defendant is entitled
to absolute litigation immunity. Compare Craig v. Stafford Construction,
Inc., supra, 271 Conn. 84 (‘‘[l]ike the [immunity] which is generally applied
to pertinent statements made in formal judicial proceedings, an absolute
[immunity] also attaches to relevant statements made during administrative
proceedings which are quasi-judicial in nature’’ (emphasis added)), with
Dlugokecki v. Vieira, 98 Conn. App. 252, 257, 907 A.2d 1269 (‘‘[t]he . . .
issue . . . is whether the statements [made in the course of the quasi-
judicial proceeding] were pertinent to the subject of the controversy’’
(emphasis added; internal quotation marks omitted)), cert. denied, 280 Conn.
951, 912 A.2d 483 (2006).
14
To the extent that the plaintiff relies on our Supreme Court’s decision
in Gallo v. Barile, supra, 284 Conn. 471, to support a conclusion that false
statements concerning criminal wrongdoing are not entitled to absolute
immunity, that case is distinguishable from the present case because the
statements in Gallo were not made in the course of a judicial or quasi-
judicial proceeding. Indeed, our Supreme Court concluded that its decision
in Craig v. Stafford Construction, Inc., supra, 271 Conn. 88–90, did not
control the outcome of Gallo because ‘‘the statements at issue in Craig fell
squarely within the [immunity] for statements made in the course of a quasi-
judicial proceeding.’’ Gallo v. Barile, supra, 284 Conn. 474. Moreover, the
court in Gallo acknowledged that ‘‘[i]t is well established that allegations
contained in a complaint in a quasi-judicial proceeding, like allegations
contained in a complaint in a judicial proceeding, are [entitled to absolute
immunity].’’ Id.