Connecticut Trial Court Official Decisions

Unpublished

FLYNN v. POLEMIS, FBT-CV-05-4010079 S (11-17-2006) Janice
Flynn v. Spiros A. Polemis. 2006 Ct. Sup. 21237 No.
FBT-CV-05-4010079 S Connecticut Superior Court, Judicial
District of Fairfield at Bridgeport. File Date: November
17, 2006.

[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] MEMORANDUM OF DECISION

TYMA, THEODORE R., J.

I

INTRODUCION

This case concerns the Connecticut Hazardous Waste Transfer
Act, General Statutes § 22a-134 et seq. (Transfer
Act). By way of background, “[w]hen there is a sale of real
property that may be environmentally contaminated, the . .
. Transfer Act . . . requires a transferor either to
provide to a transferee a negative declaration to indicate
that the property poses no environmental threat or to
certify to the department of environmental protection that
remediation measures will be undertaken.” Visconti v.
Pepper Partners Ltd. Partnership, 77 Conn.App. 675, 676,
825 A.2d 210 (2003). “Failure to comply with the Transfer
Act renders the transferor strictly liable to the
transferee for remediation costs and other damages. See
General Statutes § 22a-134b. General Statutes
§§ 22a-134 through 22a-134d were enacted to
protect purchasers of property from being liable for the
subsequent discovery of hazardous waste on the property by
requiring the transferor of property to submit a formal
declaration that the property is free of pollution.”
(Internal quotation marks omitted.) Northeast CT Economic
Alliance, Inc. v. ATG Partnership, 272 Conn. 14, 40 861
A.2d 473 (2004).

The present action arises from the transfer of certain
commercial property from the defendant to the plaintiff
that at the time of the transaction, and for some time
prior thereto, was occupied by a printing business. The
plaintiff commenced this action by writ of summons and
complaint having a return date of July 26, 2005. The
plaintiff filed an amended complaint on October 24, 2005
wherein she alleges that the defendant is strictly liable
to her for his failure to comply with the Transfer Act. The
defendant filed an answer and special defenses on November
14, 2005 denying the material allegations of the complaint
and asserting three special defenses. The defendant claims
in his special defenses that the plaintiff’s claim under
the Transfer Act is barred by CT Page 21238 the applicable
statute of limitations, that a certain statutory form filed
by the plaintiff was not required under the transfer
provisions at issue, and that any environmental
contamination on the property was caused by persons other
than the defendant. The plaintiff replied to the
defendant’s special defenses by denying them.

The plaintiff presently moves for summary judgment on the
issue of liability only. The plaintiff asserts that the
defendant is strictly liable to her because he transferred
the real property at issue without complying with the
provisions of the Transfer Act. The plaintiff contends the
real property at issue constituted an establishment under
the Transfer Act.

The defendant opposes the plaintiff’s summary judgment
motion claiming that the property was not an establishment
within the meaning of the Transfer Act and, consequently,
he did not violate the transfer provisions by failing to
make certain filings. Additionally, the defendant cross
moves for summary judgment asserting, in contradistinction
to the plaintiff, that there is no genuine issue of
material fact that the property was not an establishment,
and that the plaintiff’s claim asserting a violation of the
Transfer Act is barred by the three-year tort statute of
limitations set forth in General Statutes § 52-577.
The plaintiff opposes the defendant’s cross-motion for
summary judgment.

II

FACTS

The material facts are undisputed. The real property at
issue, 1383 Kings Highway, Fairfield, Connecticut, was
owned by Paul Lyons from 1979 until 1987. He operated a
metals business on the premises. The defendant, Sprios A.
Polemis, owned the property from 1987 to November 21, 2000.
The defendant operated a printing business, Helicon Press,
Inc., on the property from 1988 though 1995. The defendant
thereafter leased the property to another printing
business, Alert Printing, from 1997 to 2000.

The defendant sold the property to the plaintiff, Janice
Flynn, on November 21, 2000. Thereafter, the plaintiff sold
the property on April 28, 2004, to Paul Zec. While
conducting due diligence prior to the sale, Zec learned
that in 1997 a representative of Alert Printing filed a
form titled “Notification of Regulated Waste Activity” with
the Connecticut department of environmental protection. The
form was signed by Peter Karacsony under oath on February
14, 1997. In a section entitled CT Page 21239 “Regulated
Waste Activity” and a corresponding subsection entitled
“Hazardous Waste Activity,” Karacsony checked the box for
“100 to 1000 kg/mo (220-2,200 lbs).” Zec further learned
that Alert Printing filed with the Environmental Protection
Agency (EPA) a form entitled “Uniform Hazardous Waste
Manifest,” dated July 5, 2000, that indicated that the
printer shipped, presumably for disposal, 500 pounds of
hazardous waste in the form of photo fixer silver solution
and used photographic solution. The foregoing information
prompted Zec to demand, as a condition of his purchase of
the property, that the plaintiff comply with the Transfer
Act. The plaintiff voluntarily agreed to do so.

Zec purchased the property from the plaintiff on April 28,
2004. In accordance with her agreement, the plaintiff filed
with the department of environmental protection a form
entitled “Transfer of Establishment (Real Estate) Form
III.” The plaintiff signed the form under oath on April 28,
2004. The form was also signed by Zec as transferee. The
form indicated that it was to be used “when transferring
any real property that meets the definition of an
establishment as defined in section 22a-134(3)” of the
General Statutes. The plaintiff certified on the form that
she agreed to environmentally investigate the property and
to remediate any condition, if necessary.

In September 2004, the plaintiff, pursuant to General
Statutes § 22a-134h, petitioned the planning and
standards division of the department of environmental
protection to withdraw her Form III. The plaintiff sought
to withdraw the filing contending that the transfer of the
property from the plaintiff to the defendant did not involve
a hazardous waste establishment within the meaning of the
transfer statute.

By letter dated March 4, 2005, the department issued a
denial of the petition. The denial letter stated, in part,
the following: “The Department has reviewed the submittal
and records and concludes that Peter Karacsony manager of
Alert Printing notified the Department of Environmental
Protection as having hazardous waste activity (100-1000
Kg/mo.) on February 14, 1997. Such planning activity
constitutes threshold rates and quantity to meet the
definition of an establishment. This is underscored with
500 pounds of hazardous waste manifested from the parcel on
July 5, 2000. In addition no information has been provided
in the petition to describe other potential hazardous waste
management activities common to the printing industry (e.g.
waste developer, inks, rags, cleaning solutions) or
activities by Metal Specialties who operated the parcel
from 1949 until circa 1997.”

At the same time the department issued its denial in March,
the CT Page 21240 department’s bureau of waste management
issued a notice of violation to the defendant requesting
that the defendant file the forms required by General
Statutes § 22a-134a for the transfer of a hazardous
waste establishment and to correct any violations that may
exist on the property. The defendant filed a compliance
statement in response thereto in which he set forth reasons
why a filing was unnecessary. The department has not
responded to the statement or taken any other action
against the defendant.

III

SUMMARY JUDGMENT LAW The law governing summary judgment
and the accompanying standard of review are well settled.
“Practice Book § [17-49] requires that 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. A material fact is
a fact that will make a difference in the result of the
case . . . The facts at issue are those alleged in the
pleadings.” (Citation omitted; internal quotation marks
omitted.) Gohel v. Allstate Ins. Co., 61 Conn.App. 806,
809, 768 A.2d 950 (2001).

“In seeking summary judgment, it is the movant who has the
burden of showing the nonexistence of any issue of fact.
The courts are in entire agreement that the moving party
for summary judgment has the burden of showing the absence
of any genuine issue as to all the material facts, which,
under applicable principles of substantive law, entitle him
to a judgment as a matter of law. The courts hold the
movant to a strict standard. To satisfy his burden the
movant must make a showing that it is quite clear what the
truth is, and that excludes any real doubt as to the
existence of any genuine issue of material fact . . . As the
burden of proof is on the movant, the evidence must be
viewed in the light most favorable to the opponent.”
(Internal quotation marks omitted.) Rockwell v. Quintuer,
96 Conn.App. 221, 227-30, 899 A.2d 738, cert. denied, 280
Conn. 917 (2006).

“It is frequently stated in Connecticut’s case law that,
pursuant to Practice Book §§ 17-45 and 17-46,
a party opposing a summary judgment motion must provide an
evidentiary foundation to demonstrate the existence of a
genuine issue of material fact . . . [T]ypically
[d]emonstrating a genuine issue requires a showing of
evidentiary facts or substantial evidence outside the
pleadings from which material facts alleged in the
pleadings can be warrantably inferred . . . Moreover, [t]o
establish the existence of a material fact, it is not enough
for CT Page 21241 the party opposing summary judgment
merely to assert the existence of a disputed issue . . .
Such assertions are insufficient regardless of whether they
are contained in a complaint or a brief . . . Further,
unadmitted allegations in the pleadings do not constitute
proof of the existence of a genuine issue as to any
material fact.” (Citation omitted; internal quotation marks
omitted.) Id., 228-29.

“An important exception exists, however, to the general
rule that a party opposing summary judgment must provide
evidentiary support for its opposition, and that exception
has been articulated in our jurisprudence with less
frequency than has the general rule. On a motion by [the]
defendant for summary judgment the burden is on [the]
defendant to negate each claim as framed by the complaint .
. . It necessarily follows that it is only [o]nce [the]
defendant’s burden in establishing his entitlement to
summary judgment is met [that] the burden shifts to [the]
plaintiff to show that a genuine issue of fact exists
justifying a trial . . . Accordingly, [w]hen documents
submitted in support of a motion for summary judgment fail
to establish that there is no genuine issue of material
fact, the nonmoving party has no obligation to submit
documents establishing the existence of such an issue.”
(Citations omitted; internal quotation marks omitted.) Id.,
229-30.

IV

DISCUSSION OF PLAINTIFF’S SUMMARY JUDGMENT MOTION

The plaintiff moves for summary judgment asserting that
that there is no genuine issues of material fact that at
the time the defendant transferred the subject property to
the plaintiff on November 21, 2004, the property was a
hazardous waste establishment in accordance with the
Transfer Act. Based on the foregoing, the plaintiff claims
that pursuant to General Statutes § 22a-134b the
defendant is strictly liable to her for his failure to
comply with the statutory provisions.

The Transfer Act is an environmental statute which
“subjects transferors of establishments to reporting,
investigation and remediation requirements that depend on
the environmental condition of the property being
transferred. See General Statutes § 22a-134a. The
transferor makes the report on one of several forms, which
are defined terms under the statute as Forms I, II, III and
IV. See General Statutes § 22a-134(10) through (13)
(defining form contents).” (Internal quotation marks
omitted.) Northeast CT Economic Alliance, Inc. v. ATG
Partnership, supra, 272 Conn. 40. An “establishment” is
defined, in pertinent part, as “any real property at which
or any business operation from which . . . there was
generated . . . more than one hundred CT Page 21242
kilograms of hazardous waste in any one month . . .” General
Statutes § 22a-134(3).

Although the plaintiff has submitted numerous documents in
support of her motion, the plaintiff mainly bases her
argument on the Connecticut department of environmental
protection’s “Denial of Petition” dated March 4, 2005.
Notwithstanding the plaintiff’s present argument, the
plaintiff petitioned the department of environmental
protection, pursuant to § 22a-134h, to withdraw the
Form III that she filed asserting that the property was not
an establishment. The plaintiff’s petition related to the
Form III that she filed upon transferring the property to
Paul Zec in April 2004. The plaintiff submitted in support
of her petition affidavits concerning the hazardous waste
generation history of Helicon Press and Alert Printing
along with a copy of a report of waste generation on the
property from a licensed environmental professional.

The plaintiff’s petition was denied based on the
department’s review of the petition and records concerning
the property on file. The representative expressly noted in
the denial that “[t]he basis for the petition is the
transaction referenced in the Form III was not an
establishment at the time the form was submitted to this
Department based on generation rates of photographic
imaging fixer wastewaters.” (Emphasis added).

The plaintiff claims that the court is bound by this
agency determination such that summary judgment should be
granted. Simply stated, the plaintiff claims that the
agency’s denial of her petition shows that there is no
question of material fact that the defendant generated the
necessary quantity of hazardous waste on his property as a
result of the business operations of the printing businesses
on his property to constitute an establishment and
requiring the defendant to comply with the Transfer Act.

The agency’s determination denying the plaintiff’s petition
to withdraw the Form III that she filed was expressly
limited to deciding whether the property was an
establishment at the time the plaintiff submitted the Form
III. There is nothing in the letter that can be considered
a determination of whether the property was an
establishment on November 21, 2000, which is the date that
the defendant transferred it to the plaintiff. That is the
relevant date for purposes of deciding this summary
judgment motion. Therefore, the plaintiff’s reliance on the
department’s letter denying the plaintiff’s position is
misplaced.

In opposing summary judgment, the defendant has submitted,
among other CT Page 21243 things, an affidavit of David I.
Brandwein, an environmental consultant and certified
professional environmental auditor. The affidavit raises
issues of fact to be resolved by the trier of fact as to
whether the property was an establishment within the
provisions of the statutes regulating the transfer of
hazardous waste establishments at the time that the
plaintiff transferred the property to the defendant.

Through his affidavit, Brandwein directly challenges the
plaintiff’s claim that the property was an establishment.
For example, Brandwein states in his affidavit that the
purpose of the “Notification of Regulated Waste Activity”
form filed by Alert Printing in 1997 was to apply for an
EPA identification number and does not evidence the
generation the required amount of waste per month necessary
to constitute an establishment. Similarly, he states that
the “Uniform Hazardous Waste Manifest” form filed by Alert
Printing does not evidence waste generation, rather it is
documentation of a specific amount of waste being shipped.
Also, Brandwein, based on his review of documents, states
his opinion that the property was not an establishment
within the meaning of the pertinent statutes at the time
the plaintiff transferred the property to the defendant in
2000.

The plaintiff has failed to sustain her burden of
demonstrating the absence of any genuine issue of material
fact concerning whether the property at issue constituted
an establishment within the meaning of the Transfer Act.
Therefore, the plaintiff’s motion for summary judgment
(110.00) is denied. Also, the defendant’s cross motion for
summary judgment (113.00) claiming that there is no genuine
issue of material fact that the property at issue did not
constitute an establishment within the meaning of the
Transfer Act is denied. Clearly, the affidavit of Brandwein
submitted by the defendant in support of his motion gives
rise to issues of material fact to be resolved by the trier
of fact.

V

DISCUSSION OF DEFENDANT’S SUMMARY JUDGMENT MOTION RELATING
TO THE STATUTE OF LIMITATIONS

The defendant further moves for summary judgment on the
plaintiff’s complaint, claiming that the statutory action
is barred by the three-year statute of limitations
pertaining to torts embodied in § 52-577.
Specifically, the defendant asserts that the plaintiff had
until December 2003 to bring an action, but did not
commence the present action until 2005. In opposition, the
plaintiff claims that because the legislature did not
insert a statute of limitations into the Transfer Act, the
court should not impute one. CT Page 21244

The material facts relevant to the statute of limitations
issue are not in dispute. The defendant sold the property
to the plaintiff on November 21, 2000. Among other things,
the Transfer Act requires that “[p]rior to transferring an
establishment, the transferor shall submit to the
transferee a complete Form I or Form II and, no later than
ten days after the transfer, shall submit a copy of such
Form I or Form II to the commissioner.” General Statutes
§ 22a-134a(c). The defendant did not submit any such
forms to the plaintiff prior to the transfer of the
property, or to the commissioner thereafter.

The issue raised by the defendant’s cross motion for
summary judgment is whether the plaintiff’s claim that the
defendant is strictly liable to her pursuant to the
Transfer Act is barred by the three-year tort statute of
limitations in § 52-577. The court concludes that
the plaintiff’s action on that count is barred by that
statute.

“Section 52-577 originally was enacted in 1821.” Lombard v.
Edward J. Peters, P.C., 79 Conn.App. 290, 297, 830 A.2d 346
(2003). The legislature has not made any changes to the
statute since it revised it in 1949 to change the statutory
time limitation from six years to three years. Id., 297-98.
The statute provides as follows: “No action founded upon a
tort shall be brought but within three years from the date
of the act or omission complained of.” General Statutes
§ 52-577.

“[O]ur Supreme Court has held that the three-year statute
of limitations of § 52-577 is applicable to all tort
actions other than those excepted therefrom by §
52-584 or other sections; Lambert v. Stovell, 205 Conn. 1,
4, 529 A.2d 710 (1987) . . .” (Internal quotation marks
omitted.) Lombard v. Peters, supra, 79 Conn.App. 299. It is
well settled that “in determining which statute of
limitations applies, we look to the nature of the right
alleged rather than to the form of the action or to the
relief demanded.” Id., 295.

In deciding the defendant’s motion, the court must consider
whether the plaintiff’s action brought pursuant to §
22a-134b is a tort action. The gravamen of the complaint in
this case is that the plaintiff seeks to hold the defendant
strictly liable for damages and costs due to the
defendant’s failure to comply with the provisions of the
Transfer Act. The court concludes that the nature of the
right alleged is a violation of a statutory duty from which
damages flow. “[T]he unexcused violation of a legislative
enactment, or a law, is a tort.” Bellemare v. Wachovia
Mortgage Corp., 94 Conn.App. 593, 602, 894 A.2d 335, cert.
granted, 280 Conn. 901, 907 A.2d 88 (2006) (certification
granted limited to the issue of whether “the Appellate
Court properly conclude[d] that the CT Page 21245
plaintiff’s claim for damages under General Statutes
§ 49-8 is barred by the statute of limitations,
General Statutes § 52-577?”).

In Visconti v. Pepper Partners Ltd. Partnership, 77
Conn.App. 675, 686-87, 825 A.2d 210 (2003), the Connecticut
Supreme Court applied the three-year statute of limitations
contained in § 52-577 to an action brought under
another section of the Environmental Protection Act,
General Statutes § 22a-16. The plaintiff in Visconti
brought a multi-count complaint against the defendant
arising from the sale by the defendant to the plaintiff of
commercial property located on Naugatuck Avenue in Milford,
Connecticut. Id., 677-78. Among other causes of action, the
plaintiff alleged that the defendant was liable to him
pursuant to General Statutes § 22a-16, which provides
that any person may bring an action for declaratory and
equitable relief against a defendant “for the protection of
the public trust in the air, water and other natural
resources of the state from unreasonable pollution . . .”
Id., 686.

The defendant filed a special defense that the statutory
claim was barred by § 52-577, and moved thereon for
summary judgment. Id., 685-87. On appeal, the court held
“that the trial court properly granted the defendants’
summary judgment with respect to the plaintiff’s statutory
claim under § 22a-16.” Id., 689. In so holding, the
court noted that the “plaintiff does not dispute the
applicability of [§ 52-577] in this case.” Id.,
687.

In addition, the case of Longobardi v. Shree Ram Corp.,
Superior Court, judicial district of New Haven, Docket No.
CV 05 4016755 (August 15, 2006, Pittman, J.), concerns a
factual situation substantially similar to the present
case. In Longobardi, the plaintiffs brought an action
against the defendants seeking compensation for remediation
and other costs arising from a hazardous waste spill on
premises they owned in North Haven. Id. The named defendant
was a lessee who operated a dry cleaning business on the
premises. During the time that the defendant operated the
cleaning business, a toxic fluid used in the business
spilled on the property. Id. The plaintiffs commenced an
action claiming, among other things, reimbursement for
environmental clean-up costs in accordance with General
Statutes § 22a-452. Id.

The defendants moved for summary judgment asserting that
the plaintiffs’ statutory action for remediation costs was
barred by the statute of limitations contained in §
52-577. Id. The court noted that ” § 22a-452
provides for a private right of action for clean-up costs
against a party who negligently contaminates property with
hazardous chemicals. The statute does not contain its own
limitations period. CT Page 21246 Since this is a suit
brought for damage to property, the provision of [General
Statutes] § 52-577 for ordinary torts or 52-577c for
damages caused by hazardous chemicals applies.” Id. Because
on the undisputed material facts the court found that the
statutory action for remediation costs was brought beyond
any applicable statute of limitations, the court granted
the defendants’ summary judgment motion in that regard. Id.

Here, the plaintiff alleges an omission by the defendant;
that being the failure of the defendant to comply with the
Transfer Act at the time that he conveyed the property to
her on November 21, 2000. The plaintiff seeks damages and
costs relating to the defendant’s alleged omission. In a
letter submitted in support of her motion, the plaintiff
claims damages for legal fees, filing fee for Form III,
one-half of the cost of a Phase II, costs concerning the
closure of a hazardous waste storage on the property, cost
relating to an environmental condition assessment form, two
months additional carrying costs due to the delay in
closing and any costs incurred by the plaintiff for
investigation and remediation of the property. The court
concludes the strict liability claim in this case is in the
nature of a tort and that the damages sought evince such a
nature of the right alleged by the plaintiff.

In view of the foregoing, the statute of limitations set
forth in § 52-577 governs an action brought pursuant
to the Transfer Act. There are no issues of material fact
that the property was transferred by the plaintiff to the
defendant on November 21, 2000, and that the defendant
failed to comply with the provisions of the Transfer Act
prior, on, or subsequent to that date. The three-year
statute of limitations applicable to the defendant’s
omission began to run on the date the defendants failed to
comply with the Transfer Act, which was November 21, 2000.
See Labow v. Rubin, 95 Conn.App. 454, 468-69, 897 A.2d 136
(2006) (limitations period of § 52-577 begins with
date of act or omission complained of, not when plaintiff
first discovers injury). In view of the foregoing, the
plaintiff’s action commenced in 2005 is barred by §
52-577. Therefore, the defendant’s cross motion for summary
judgment (113.00) is granted.

VI

CONCLUSION

In view of the foregoing, the plaintiff motion for summary
judgment (110.00) is denied, and the defendant’s cross
motion for summary judgment (113.00) is granted. CT Page
21247