DocketNumber: No. CV00-033 9632 S
Citation Numbers: 2001 Conn. Super. Ct. 14556
Judges: WHITE, JUDGE.
Filed Date: 10/23/2001
Status: Non-Precedential
Modified Date: 7/5/2016
The plaintiff, Albert Amore, is the son of the decedent and a beneficiary of one-third of the rest, residue and remainder of the estate. On July 21, 1999, the plaintiff filed a motion of appeal from probate. The motion disputed the June 24, 1999 order of the court allowing the revised claim. On July 28, 1999, the Probate Court issued a decree allowing the appeal and setting September 7, 1999 as the return date to the Superior Court for the appeal. The plaintiff did not return the appeal to the Superior Court six days before September 7, 1999. Thus, the appeal was dismissed on April 26, 2000 for failure to comply with General Statutes §
The plaintiff filed a second complaint in Superior Court on June 5, 2000, pursuant to General Statutes §
On March 30, 2001, the defendants filed a motion for summary judgment. The plaintiff timely filed his memorandum in opposition to the motion for summary judgment on April 12, 2001.
"In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski,
In his reasons for appeal, the plaintiff stated that he was aggrieved by the Probate Court order because "[t]he Court ha[d] failed to take into account bank records and tax records which showed that the source of funds for Mrs. Amore's care were that of her own and not of her daughter and/or son-in-law." Moreover, the plaintiff stated that "[i]nsufficient and non-credible evidence was presented to the Court other than the uncorroborated representation of the co-executor as to the source of interest income identified as federal tax returns for Mrs. Amore."2
The grounds set forth in the defendants' motion for summary judgment are: (1) "[t]here is no genuine issue of material fact between the parties as to the Probate Court order dated June 24, 1999," and (2) that "[t]he plaintiffs stated Reason For Appeal does not present any genuine issue of material fact and does not contest the validity of [the Order], but rather seeks to elicit additional information from Defendants not considered material by the Probate Court."
As documentation in support of their motion, the defendants submitted bank records (1996-1997, Exhibit A) which reflect transfers from their personal account to another account set up for the care of the decedent. They submitted a money market account summary (1996-1997, Exhibit B), which shows periodic withdrawals from that account with deposits made into the decedent's account. They also submitted the decedent's income tax returns from 1996 (Exhibit D). Their motion provides that they withdrew "money from their personal funds and deposited same into a checking account in the name of Katherine Amore." However, they have not submitted any documentation which counters or explains the evidence the plaintiff refers to in his reasons for appeal, specifically, "bank records . . . which showed that the source of funds for Mrs. Amore's care were that of her own and not of her daughter and/or son-in-law."
"The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts. . . ." (Brackets in original.) Appleton v. Board of Education of Stonington,
White, J.