Bozelko v. Webster Bank, N.A.

159 Conn.App. 821

123 A.3d 1250

Chandra BOZELKO

v.WEBSTER BANK, N.A.

No. 37078.

Appellate Court of Connecticut.

Argued May 18, 2015.

Decided Sept. 15, 2015.

Chandra Bozelko, self-represented, the appellant (plaintiff).

John C. Pitblado, Hartford, with whom was Jon Sterling, for the appellee (defendant).

Opinion

MULLINS, J.

The self-represented plaintiff, Chandra Bozelko, appeals from the summary judgment rendered by the trial court in favor of the defendant, Webster Bank, N.A. On appeal, the plaintiff claims that the court improperly ruled that each count of her complaint was barred by a properly asserted statute of limitations defense and that the court abused its discretion in denying her motion to reconsider.¹We affirm the judgment of the court.

The following facts and relevant procedural history inform our review. In a complaint dated September 1, 2011, the plaintiff brought an action against the defendant in four counts, namely, fraudulent nondisclosure, violation of the Connecticut Unfair Trade Practices Act; General Statutes § 42–110a et seq.; breach of the implied covenant of good faith and fair dealing, and spoliation of evidence. In relevant part, the plaintiff alleged that, in July, 2003, she had a checking account with the defendant, and that on two separate occasions in November, 2003, a fraudulent check in the amount of $10,000 was deposited into her account. She also alleged that the defendant had her arrested and charged with one count of larceny in the first degree and two counts of forgery in the third degree, but that these charges later were nolled.²The plaintiff alleged that, while she was in prison, a fellow inmate informed her that she and an accomplice “had purchased account numbers from an employee [of the defendant] at the 80 Elm Street, New Haven branch in 2003 and that [the] plaintiff's information was [among the] account numbers sold.” She further alleged that the defendant “never notified any customers, including [the] plaintiff, of [the] security breach by the employee at the 80 Elm Street branch [and that] ... [the defendant] made every attempt to conceal its wrongful acts and omissions to [the] plaintiff.” On the basis of these alleged facts, the plaintiff brought her four count complaint.

The defendant denied the material allegations of the complaint and raised several special defenses to each count, including statutes of limitations defenses under General Statutes §§ 52–584, 42–110g, 52–577, 52–576, “or other applicable statute(s) of limitation.” The plaintiff filed a reply in which she simply denied each special defense. On October 1, 2012, the defendant filed a motion for summary judgment with an accompanying memorandum of law, affidavits and other documents. The plaintiff filed a motion in opposition, along with her own affidavit. On April 23, 2014, following a hearing on the motion, the court rendered summary judgment in favor of the defendant on statutes of limitations grounds. The plaintiff then filed a motion to reargue and reconsider. On June 27, 2014, the court held a hearing on the plaintiff's motion, but declined to reconsider its judgment. This appeal followed. Additional facts will be set forth where necessary.

The plaintiff first claims that the court improperly rendered summary judgment in favor of the defendant because there was a genuine issue of material fact regarding when she became aware of the defendant's alleged fraud. She contends that, although she was aware that there had been a fraud perpetrated against her checking account in 2003 or 2004, she was unaware, until 2009, that an employee of the defendant had a hand in the alleged fraud. She argues that it was only then, in 2009, when certain facts were revealed to her by a fellow inmate, and that, therefore, the court's conclusion that various statutes of limitations had run on her claims was incorrect as a matter of law pursuant to General Statutes § 52–595.³

The defendant argues that the plaintiff submitted only her own affidavit that was filled with inadmissible hearsay regarding the alleged 2009 information she allegedly received from a fellow inmate regarding an unnamed employee of the defendant.⁴It further argues that the plaintiff failed to produce an affidavit from this inmate, and she failed to produce any type of admissible evidence regarding the defendant's alleged knowledge or concealment of a fraud perpetrated against the plaintiff's checking account by one of its employees. Accordingly, the defendant argues, the court could not consider the hearsay evidence, and, there being no evidence to support a tolling of the statutes of limitations, the court properly rendered summary judgment in favor of the defendant.⁵We agree with the defendant.

“The standards governing [an appellate tribunal's] review of a trial court's decision to grant a motion for summary judgment are well established. Practice Book [§ 17–49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.... [T]he scope of our review of the trial court's decision to grant the [defendant's] motion for summary judgment is plenary.... [I]n the context of a motion for summary judgment based on a statute of limitations special defense, [the defendant] typically [meets its] initial burden of showing the absence of a genuine issue of material fact by demonstrating that the action had commenced outside of the statutory limitation period.... When the plaintiff asserts that the limitations period has been tolled by an equitable exception to the statute of limitations, the burden normally shifts to the plaintiff to establish a disputed issue of material fact in avoidance of the statute.... Put differently, it is then incumbent upon the party opposing summary judgment to establish a factual predicate from which it can be determined,as a matter of law, that a genuine issue of material fact exists....

“Thus, to toll a statute of limitations by way of our fraudulent concealment statute, a plaintiff must present evidence that a defendant: (1) had actual awareness, rather than imputed knowledge, of the facts necessary to establish the [plaintiff's] cause of action; (2) intentionally concealed these facts from the [plaintiff]; and (3) concealed the facts for the purpose of obtaining delay on the [plaintiff's] part in filing a complaint on their cause of action.” (Citations omitted; internal quotation marks omitted.) Iacurci v. Sax,313 Conn. 786, 799–800, 99 A.3d 1145 (2014).

In this case, the defendant properly filed special defenses, including statutes of limitation defenses, which the plaintiff simply denied. It is undisputed that the plaintiff's causes of action were filed seven to eight years after the alleged fraud on her checking account, although she alleges that the facts of the defendant's involvement were concealed from her until 2009. Under any of the applicable statutes of limitations, the causes of action were untimely. See General Statutes §§ 42–110g(f)(“[a]n action under this section may not be brought more than three years after the occurrence of a violation of this chapter”) 52–576(a) (“[n]o action ... on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues”) and 52–577 (“[n]o action founded upon a tort shall be brought but within three years from the date of the act or omission complained of”).

The defendant moved for summary judgment, in part, on statutes of limitations grounds. With its motion, the defendant filed various affidavits and exhibits, including a copy of its objections and responses and its supplemental responses to the plaintiff's interrogatories. In those direct responses, which were properly sworn and notarized, the defendant averred, in relevant part: (1) “[N]o Webster [Bank] employee of the 80 Elm [Street] ... branch ... was terminated during the years 2003, 2004, 2005 or 2006 in connection with the inappropriate use or sale of customer checking account information”; (2) “[N]o Webster [Bank] employee of the 80 Elm [Street] ... branch ... was charged by or reported to authorities for criminal conduct relating to customer checking account information use or sales during the years 2003, 2004, 2005 or 2006”; (3) “Webster [Bank] did not notify any client/customers of any charge by authorities against any Webster [Bank] employee for criminal conduct relating to the sale or use of checking accounts in the 80 Elm [Street] ... branch ... because no such charges were ever made”; and (4) “the plaintiff's personal information relating to the checking account at issue in this litigation was never wrongfully/unlawfully accessed by any Webster [Bank] employee.”

The plaintiff objected to the defendant's motion for summary judgment and argued that the defendant fraudulently had concealed its knowledge that one of its employees was involved in the alleged fraud against the plaintiff's checking account, and that the applicable statutes of limitations were tolled as a result of this concealment. In support of her opposition to the defendant's motion for summary judgment, the plaintiff relied on her own self-serving affidavit.⁶See Bednarz v. Eye Physicians of Central Connecticut, P.C.,287 Conn. 158, 174–75, 947 A.2d 291 (2008)(plaintiff's self-serving affidavit insufficient to surmount motion for summary judgment). Our review of the contents of this affidavit, however, reveals that, even if we consider all of the self-serving averments therein, the affidavit provides no information as to the defendant's alleged concealment of any purported fraud by one of its employees.

In her affidavit, the plaintiff averred, in relevant part: the plaintiff was...