10 Marietta St., LLC v. Melnick Props., LLC

216 Conn.App. 262

285 A.3d 82

10 MARIETTA STREET, LLC

v.MELNICK PROPERTIES, LLC, et al.

AC 44833

Appellate Court of Connecticut.

Argued April 11, 2022

Officially released November 1, 2022

Leonard C. Reizfeld, for the appellant (plaintiff).

Joshua A. Winnick, New Haven, for the appellees (defendants).

Prescott, Elgo and Cradle, Js.

PER CURIAM.

The plaintiff, 10 Marietta Street, LLC, appeals from the summary judgment rendered by the trial court in favor of the defendants, Melnick Properties, LLC, Kenneth Maratea, Ellen Maratea, and Kathleen Bednarcik.¹ On appeal, the plaintiff claims that the court improperly determined that no genuine issue of material fact existed and the defendants were entitled to judgment as a matter of law on all thirty counts of the plaintiff's operative complaint, which seeks to hold the defendants responsible for environmental contamination of the plaintiff's property. We agree with the plaintiff that genuine issues of material fact exist regarding whether one or more of the defendants are legally responsible for the alleged contamination of the plaintiff's land and its groundwaters. Accordingly, we reverse the judgment of the trial court.

The following facts and procedural history are gleaned from the pleadings, affidavits, and other proof submitted, viewed in a light most favorable to the plaintiff. See Dubinsky v. Black , 185 Conn. App. 53, 56, 196 A.3d 870 (2018). The plaintiff owns a vacant parcel of land known as 0 Marietta Street in Hamden. The defendant Melnick Properties, LLC, owns an adjacent parcel of real property known as 24 Marietta Street, on which is a commercial building that has been used for a number of purposes, including as an auto repair facility. The remaining defendants are prior owners of 24 Marietta Street and/or were involved in managing the property over a substantial period of time.

On September 25, 2019, the plaintiff initiated the present action. The operative complaint, filed on October 6, 2020, contains thirty counts sounding in negligence, negligence per se, trespass, nuisance, and violations of General Statutes §§ 22a-16² and 22a-452,³ and the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA), 42 U.S.C. § 9601 et seq.⁴ The complaint contains a series of general allegations that are incorporated by reference as part of each count of the complaint. The gravamen of these general allegations is that the defendants knew or should have known that hazardous and toxic chemicals, including petroleum products, solvents, and metals, have flowed from the building on 24 Marietta Street through a drainpipe that extends underground from the 24 Marietta Street building onto the plaintiff's property.⁵ The plaintiff asks for compensatory and punitive damages for the alleged harm caused to its property, and for declaratory and injunctive relief requiring the defendants to remediate the pollution and to remove the drainpipe.

On December 14, 2020, the defendants filed a joint motion asking the court to render summary judgment in their favor as to all counts of the complaint. The sole basis on which the defendants claimed entitlement to summary judgment was that the plaintiff could not meet its burden of production with respect to any of the causes of action alleged in the complaint, and "[t]he plaintiff's inability to meet its burden of production means, ipso facto, that it cannot prove the elements of the seven causes of action alleged." The defendants stated in their accompanying memorandum of law that they had served written interrogatories on the plaintiff that sought further details regarding the primary allegation in the complaint that the defendants knew or should have known that contamination of the plaintiff's property was occurring as the result of "dangerous, hazardous and toxic levels of oil, solvents, hydrocarbons, metals and the like ... being flushed down the floor drains and onto the abutting property and into the ground water." The defendants argue that the plaintiff's responses failed to provide them with "clear and explicit details about the alleged contamination of the plaintiff's property, including precisely what happened, how it happened and when it happened." The defendants argue that the plaintiff "has no facts to produce in support of the dispositive allegation of its complaint" and is unable to proffer any evidence that the alleged flushing of hazardous materials through the drainpipe in question ever occurred.⁶ The defendants provided limited legal analysis explaining how the purported evidentiary lacuna that it identified specifically related to the different causes of action alleged in the complaint or how the lack of direct evidence regarding how contaminants were introduced to the defendants’ floor drain entitled the various defendants to judgment as a matter of law under any of the disparate theories of recovery advanced by the plaintiff.

The plaintiff filed an objection to the defendants’ motion for summary judgment, a supporting memorandum of law, and several exhibits, including an affidavit from a licensed environmental professional, Darrick F. Jones, who had conducted an environmental study of the plaintiff's property.⁷ Jones averred in his affidavit that "there was a buried metal pipe [that] exited the abutting building at 24 Marietta Street onto [the plaintiff's property] ...." He further averred that the metal pipe extended about two feet onto the plaintiff's property before transitioning first into "Orangeburg" piping and then PVC plastic piping. According to Jones, these different piping sections were not secured together well and, where there were breaks, "a strong smell of oil contaminants was emanating from the surrounding ground." Samples were collected from the ground and from within the pipe itself and tested by a laboratory. Jones’ report, which was attached to the affidavit, indicated that the contaminants found in the pipe were the same type, just in higher concentrations, as the contaminants found in the surrounding soil on the plaintiff's property.

On June 9, 2021, the parties appeared before the court for a virtual hearing on the defendants’ motion for summary judgment. The plaintiff took the position that, contrary to the defendants’ arguments, it had no obligation to prove who had dumped what down the defendants’ drains or when but, instead, merely had to prove that hazardous materials went down the defendants’ floor drains, through the drainpipe, and onto the plaintiff's property while the defendants had exclusive ownership or control of the property and the drainage system. The plaintiff asserted that it had presented sufficient evidence to raise a genuine issue of material fact as to whether hazardous materials from the defendants’ property had contaminated the plaintiff's property, directing the court's attention to Jones’ affidavit. The plaintiff argued: "So ... it's an issue of strict liability, joint and several liability. There is nothing for the plaintiff to prove as far as who dumped what, when ... down the defendants’ floor drains. It's strict liability, Your Honor. The law is clear, both federal and state."⁸

On July 2, 2021, the court issued a "postcard" order granting the motion for summary judgment. The postcard order contains the court's entire memorandum of decision. After first reciting boilerplate law regarding the appropriate standard of review, the memorandum of decision provided the following legal analysis: "The defendants filed the interrogatories and request for production pertaining to the plaintiff's allegations in its complaint, [e]specially as to the paragraph 12, dangerous, hazardous and toxic levels of oil, solvents, hydrocarbons, metals and the like ... being flushed down the floor drains and onto the abutting property and into the ground water.

"The [court agrees] with the defendants that the answers to these questions should have provided clear and explicit details about the alleged contamination of the plaintiff's property, including precisely what happened, how it happened and when it happened, and/or the sources of and the basis of its allegation. The plaintiff has not provided any such information. Except the plaintiff's repeated responses ... [that] the floor drains were installed when the building was built ... [and] the original defendant owner ... used the building ... to store his oil delivery trucks.

"The court concludes that if the plaintiff is unwilling and/or unable to provide the basic minimum information—which is his burden of production/proof. The court further concludes that ... the plaintiff has not put forward [any] evidence except attempting to shift the burden of production to the defendant[s], contrary to the rules of practice.

"Hence, the court grants the motion for summary judgment to all counts." From this judgment, the plaintiff now appeals.

The plaintiff claims on appeal that the trial court improperly rendered summary judgment because the defendants failed to meet their burden of showing that no genuine issues of material fact existed and that they were entitled to judgment as a matter of law with respect to each of the causes of action alleged in the complaint. The plaintiff further claims that it provided evidence from which, if credited, a fact finder reasonably could infer that the pollution on its property came from the defendants’ property via the drainpipe, thus establishing the culpability of one or all of the defendants. According to the plaintiff, at the very least, this evidence raised a genuine issue of material fact regarding the alleged flushing of contaminants down the building's floor drains and entitled the plaintiff to a trial on the merits of its complaint. We agree that the defendants failed to meet their burden of showing the absence of a genuine issue of material fact that would entitle them to summary judgment as a matter...